Levinson v. Cox

Anderson, J., delivered the opinion of the court. The appellee, Myrick Cox, recovered a judgment in the circuit court of Lowndes county against the appellant, Simon Levinson, for the sum of two hundred dollars claimed by the appellee as a balance due him by the appellant for his services in assisting the appellant in selling a lot and residence owned by the latter in the city of Columbus. From that judgment appellant prosecutes this appeal. The evidence on which the verdict of the jury was based tended to show the following facts: Appellee learned that Mrs.- Clark desired to purchase a residence in the city of Columbus and informed the appellant of that fact. The appellant had a residence which he was willing to sell and agreed with the appellee that if he would assist him in making a sale of it to Mrs. Clark he would páy the ap-pellee a commission of five per cent of the sale price. With the assistance of appellee the sale and conveyance of the residence of the appellant to Mrs. Clark was made, for the sum of five thousand dollars. The appellant paid the appellee fifty dollars on his commission, leaving a balance due, according to the testimony of the appellee, of two hundred dollars, for which judgment was recovered. [255] It developed in the evidence that the appellee had not paid a privilege tax as a real estate agent. It is contended on behalf of the appellant that because of such a failure the appellee under the law had no right to receive a commission for his services in making sale of said property; that the business of appellee as a real estate agent was unlawful, and therefore the contract between appellant, and appellee by which the former agreed to pay the latter a commission for his services in negotiating a sale of his residence was void. Under section 3401, Code of 1892, and prior to the amendment of that section by section 3894, Code of 1906, all contracts made with any person who had failed to pay the privilege tax required by law for carrying on the business out of which the contracts arose were declared null and void so far as any claim might be based thereon, by such person violating the statute. And, in addition, the failure to pay.and procure the required privilege license was made a misdemeanor punishable by fine or imprisonment or both. The statute as amended (section 3894, Code of 1906) left out the provision declaring such contracts void and unenforceable. And this provision is left out of chapter 114, Laws of 1914, Hemingway’s Code, section 6621, and it is also omitted from the privilege tax statute now in force, chapter 104, Laws of 1920, section 71. The only penalty, therefore, provided by law for the failure to pay the required privilege tax, is that it is declared, a mis- . demeanor punishable by fine of not less than twice the amount of the tax required nor more than five times such amount, or imprisonment in the county jail not exceeding six months, or both such fine and imprisonment. The contract here involved is not declared void and unenforceable by the statute. It is not a contract malum in se, it is a contract malum prohibitum, and the penalty, . which is alone a criminal penalty, is imposed for the sole purpose of protecting the public revenue. There is no inherent infirmity or illegality in such a contract. The legislature intended to rely alone on the penalty provided [256] in the statute for the protection of the revenue of the state. This is now a question alone between the state and the delinquent taxpayer; those dealing with such taxpayer are not concerned in the matter. No further discussion is necessary. This identical question decided here is decided in Huddleston v. McMillan Bros., 112 Miss. 168, 72 So. 892, Young v. State Life Ins. Co., 91 Miss. 710, 45 So. 706, and Sullivan v. Ammons, 95 Miss. 196, 48 So. 244, and we see no reason for.,not adhering to the principle announced in those cases. Affirmed.