Opinion
No. 39453.
February 7, 1955.
1. Appeal — County Court — jurisdiction — common-law — equity.
Decree of Chancery Court affirming judgment of County Court could not be reversed on appeal to Supreme Court on ground that County Court, sitting as an equity court, was without jurisdiction to try and determine cause, under constitutional provision prohibiting reversal of judgment or decree on ground of mistake as to whether cause in which it was rendered was of equity or common-law jurisdiction.
2. Juries — black market tax — suit in Chancery — defendant not entitled to jury trial.
Suit to recover statutory penalties due State and county for unlawful sale of intoxicating liquor was a civil and not a criminal proceeding, and in such suit brought in Chancery Court, defendant was not entitled to a trial by jury. Sec. 2639, Code 1942.
3. Equity — black market tax — suit by State Tax Collector — not discriminatory.
Failure of State Tax Collector to bring similar suits against persons paying black market tax on sale of intoxicating liquor did not preclude maintenance of suit by Collector against another to recover statutory penalties due State and county for unlawful sale of intoxicating liquor, either on ground that such suit was discriminatory or on ground that Collector did not come into Court with clean hands. Sec. 2639, Code 1942.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Forrest County; LUTHER A. SMITH, Chancellor.
D. Gary Sutherland, Hattiesburg, for appellant.
I. The County Court was without jurisdiction to try and determine this cause while sitting as an equity court. Board of Levee Comrs. for Yazoo-Miss. Delta v. Brooks, 76 Miss. 635, 25 So. 358; State ex rel. Atty. Gen. v. Marshall, 100 Miss. 626, 56 So. 792; Welch v. Bryant, 157 Miss. 559, 128 So. 735; Art. III Sec. 31, Art. VI Secs. 147, 159, Constitution 1890; Secs. 1609, 1640, 2640, Code 1942; 14 Am. Jur., Courts, Sec. 169; Griffith's Miss. Chancery Practice, Sec. 26 p. 27.
II. A tax statute is unconstitutional when same is an arbitrary exercise of governmental power. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799; Lowery v. City of Clarksdale, 154 Miss. 155, 122 So. 195; Amend. 14 Sec. 1, U.S. Constitution; Art. III Sec. 14, Constitution 1890; Sec. 2639, Code 1942; 51 Am. Jur., Taxation, Sec. 3; 12 C.J. 1152.
III. Discriminatory suits and doctrine of unclean hands. Bishop v. Bailey, 209 Miss. 892, 48 So.2d 588; Art. VI Sec. 147, Constitution 1890; Sec. 2639, Code 1942.
IV. The Honorable William Haralson had no jurisdiction to try the case at hand, without a jury. Sec. 2640, Code 1942.
V. The County Court could not have arbitrarily taken jurisdiction of this matter as an equity court and then thereafter claim the curative effect of Article VI, Section 147, of the Mississippi Constitution of 1890.
VI. Section 2639, Code of 1942, is void and should be declared unconstitutional for the reason that same is a tax and merely an artificial classification has been established by the statute.
Overton A. Currie, Hattiesburg, for appellee.
I. The State Tax Collector filed bills of complaint against each defendant seeking to recover $1,000 in taxes for the benefit of the State of Mississippi and Forrest County as levied and authorized by Sections 2639 and 2640 of the Mississippi Code of 1942, which provide that such a tax is due by any person who may sell intoxicating liquors unlawfully. The tax is levied upon the sale of liquor, and the factual issue of a sale of liquor by the appellants constitutes the sole material and relevant factual issue, and there was no dispute or controversy in this regard. None of the appellants claimed that they paid said tax.
II. The Act levying the $1,000 tax is constitutional, and the Act giving the Chancery Court jurisdiction over suits for the collection of said tax and abatement of nuisances is constitutional. State ex rel. Atty. Gen. v. Marshall, 100 Miss. 626, 56 So. 792.
III. The Act is constitutional and the Chancery Court has the power to collect the $1,000 civil tax penalty only even though no injunction is sought abating the nuisance, and the only relief sought is the tax penalty. Miller v. State, 114 Miss. 713, 75 So. 549.
IV. It is the right and duty of the Tax Collector to use all means authorized by statute to collect the various taxes levied on the sale of liquor. When the Tax Collector performs these duties she comes with clean hands, and in doing what the law requires her to do, her hands cannot be other than clean, and using every remedy available to collect said tax she is under a duty to collect is neither immoral nor discriminatory. One unlawful operator cannot be heard to complain if a lawful penalty is exacted of him even though such penalty may not be exacted of all unlawful violators. Bishop v. Bailey, 209 Miss. 892, 48 So.2d 588.
V. Since the Chancery Court has jurisdiction to hear such matters, the rules of procedure of the Chancery Court govern; and since it is not constitutional to deny a jury trial; and due process of law has been met when the defendants are given a reasonable opportunity to be heard and to defend themselves in the Chancery Court according to the rules and procedure of chancery. Bishop v. Bailey, supra; Miller v. State, supra; State ex rel. Atty. Gen. v. Marshall, supra.
VI. The County Court was not without jurisdiction to hear and determine said causes, but said Court had jurisdiction of said causes. Barnes v. Rogers, 206 Miss. 887, 41 So.2d 58; Bishop v. Bailey, supra; Daniels v. Jordan, 161 Miss. 78, 134 So. 903; Miller v. State, supra; State ex rel. Atty. Gen. v. Marshall, supra; Secs. 1604, 1609, 2639-40, Code 1942.
VII. The decrees of the County Court are not against the overwhelming weight of the law and the evidence.
VIII. The County Court did not err in failing to transfer said causes from the equity side to the law side of said Court. Miller v. State, supra; Moore v. General Motors Acceptance Corp., 155 Miss. 818, 125 So. 411; Sec. 147, Constitution 1890; Secs. 1604, 1609, 2640, Code 1942.
IX. The County Court did not err in failing to grant the respective appellants a jury trial. Bishop v. Bailey, supra; Miller v. State, supra; State ex rel. Atty. Gen. v. Marshall, supra.
X. The County Court did not err in rendering decrees in favor of the appellee and against the appellants.
XI. The appellants had no right to question the motive of the appellee for bringing these suits. Secs. 2639, 10108-01, Code 1942; Chap. 134, Laws 1910; Chap. 139, Laws 1944.
XII. The appellee did not come into Court with unclean hands. Secs. 2639, 10108-01, Code 1942.
XIII. The appellants have not been deprived of any constitutional right. Bishop v. Bailey, supra; Miller v. State, supra; Montroy v. Gully (Miss.), 193 So. pp. 40, 926; Noe v. Gully, 189 Miss. 1, 193 So. pp. 36, 927; State ex rel. Atty. Gen. v. Marshall, supra.
The appellee brought this suit against the appellant in the County Court of Forrest County seeking to recover a penalty of $500.00 due the State of Mississippi and also a penalty of $500.00 due Forrest County, Mississippi, for the unlawful sale of intoxicating liquors, as provided by Section 2639 of the Mississippi Code of 1942. The suit was brought on the equity docket of the County Court and was tried by the County Judge without a jury, and at the conclusion he granted judgment against the defendant as prayed for. The case was appealed to the Chancery Court and the judgment was affirmed and it is now appealed here. Every question raised on this appeal has already been decided adversely to the contentions of appellant by prior decisions of this Court.
(Hn 1) It is first contended that the County Court was without jurisdiction to try and determine this cause while sitting as an equity court.
In the case of Moore v. General Motors Acceptance Corporation, 155 Miss. 818, 125 So. 411, the Court passed upon the constitutional question now raised. We have re-examined the question, we think the decision in the Moore case was well reasoned and the point correctly decided and we see no reason to depart therefrom.
(Hn 2) It is argued, however, that appellant was deprived of the right of trial by jury. That question was answered in the case of Bishop v. Bailey, State Tax Collector, 209 Miss. 892, 48 So.2d 588. Moreover, the appellant, in his answer to the bill of complaint, admitted the sale of the intoxicating liquor in question, and if the case had been on the law docket instead of the equity docket of the county court, the appellee would have been entitled to a peremptory instruction and there would have been nothing in the case to be submitted to a jury.
(Hn 3) It is also argued that the State Tax Collector is engaged in the collection of the Black Market Tax and has not filed similar suits against persons paying that tax, and that for this reason the suit is discriminatory and the appellee did not come into court with clean hands. That contention was also answered in the Bishop case, supra. We are asked to re-examine that case, which we have done, but we see no good reason for departing therefrom.
The decision of the lower court is, therefore, affirmed.
Affirmed.
Roberds, P.J., and Lee, Holmes and Ethridge, JJ., concur.