Opinion
No. 31205.
April 23, 1934.
1. AUTOMOBILES. Constitutional law.
Statutory provision permitting sheriff to seize and sell automobile when owner has not paid highway privilege tax, without providing for inquiry thereinto or notice to owner, held void as denying due process (Code 1930, section 5605, as amended by Laws 1931 [Ex. Sess.], chapter 30; Const. Miss. 1890, section 14; Const. U.S. Amend. 14, section 1).
2. STATUTES.
Unconstitutionality of provision permitting sheriff to seize and sell automobile for nonpayment of highway privilege tax without notice to owner held separable from, and did not affect validity of, remainder of the taxing statute (Code 1930, section 5605, as amended by Laws 1931 [Ex. Sess.], chapter 30; Const. Miss. 1890, section 14; Const. U.S. Amend. 14, section 1).
3. APPEAL AND ERROR.
In replevin against sheriff who seized automobile under unconstitutional provision of taxing statute, where county court, on appeal from justice court, erroneously rendered judgment for defendant, circuit court, on appeal from county court, should have reversed county court's judgment and tried case de novo (Code 1930, section 705, and section 704, amended by Laws 1932, chapter 256).
APPEAL from Circuit Court of Jones County.
F.B. Collins, of Laurel, for appellant.
If the appellee, the sheriff, was contending that he had taken the truck because of appellant's failure to purchase a tag in the proper county, as stated to A.C. Holloway, then this was an affirmative defense, and it was incumbent upon appellee to show that he had taken the truck under due and legal process, and proceeded according to law.
Stuart v. Graham, 92 Miss. 251, 46 So. 245; 23 R.C.L., sec. 107, pages 934, 935; 34 Cyc. 1494.
Counsel for appellee contended in the courts below that by virtue of the provisions of section 5605, Mississippi Code 1930, that the sheriff had a right to take the truck in question without any legal process whatever, and to hold it as he was holding it. But it is our contention that, even under the provisions of section 5605, Mississippi Code 1930, the sheriff had no right whatever to take the truck in question without some kind of legal process, and certainly had no right to hold it without some kind of legal process, or taking some kind of legal proceedings, because if section 5605, Mississippi Code 1930, should be construed to mean that the sheriff could seize personal property according to the provisions of said section without any legal process whatever, then its provisions would be in violation to the Fourteenth Amendment to the Constitution of the United States, and would deny this appellant the right to due process of law.
Section 3120, Mississippi Code of 1930; Section 3122, Mississippi Code of 1930; Byrd v. Welch, 91 So. 568.
Deavours Hilbun, of Laurel, for appellee.
In the present case the tax in question is not an ad valorem tax. The tax levied in this case is not based on the value of the property or in any way connected with the value of the property. It is not based on any assessment made by any board or governmental body. It is not based on a prescribed rate or percentage calculation on the assessed valuation. It is in fact a charge by the state of Mississippi against every individual operating an automobile on the public highways for the privilege of operating his automobile on said highways.
State v. Lawrence, 66 So. 745.
It is settled in this state that the "equality and uniformity" clause of the constitution applies only to ad valorem taxes for general purposes.
Daily v. Swope, 47 Miss. 367.
Every owner of an automobile is charged under the law, with notice that his privilege license must be bought and paid for on or before the first day of January of each and every year.
We think it is clear from the holding in the Lawrence case, 66 So. 745, that the tax in question is a privilege tax fixed by the Legislature by statute, and that the statute in itself is all the authority or process required by the sheriff before he can act and seize the property in question.
This is an action of replevin instituted by the appellant against the appellee in the court of a justice of the peace, wherein a judgment was rendered for the appellee. An appeal to the county court resulted in a similar judgment, which was affirmed on appeal to the circuit court. An appeal to this court was granted under section 705, Code of 1930.
An automobile truck owned by the appellant was loaned by him to another, and, while in such other's possession in Jones county, was seized by the appellee, the sheriff of that county, under section 5605, Code of 1930, as amended by Laws 1931 (Ex. Sess.), chapter 30, for the nonpayment of highway privilege taxes thereon. The appellee then instituted this action of replevin. Such privilege taxes, under the above section, must "be paid in the county where owner resides or in the county where the car is used." The appellant resides in Jones county, and the truck was used therein. He paid a privilege tax thereon in Smith county.
The only objection to the seizure here made, and to which this opinion will be confined, is that the provision of section 5605, under which the truck was seized, violates section 14 of the state Constitution, and section 1 of the Fourteenth Amendment to the Federal Constitution, both of which forbid the taking of life, liberty, or property without due process of law. After fixing the time and place for the payment of the tax, the statute provides that "the tax collector shall seize and sell any personal property of any person liable for the foregoing tax or penalty therefor, in the same manner that he is required by law to seize and sell such property for other delinquent taxes," under which (and no other statute that has been called to our attention otherwise provides) the sheriff may seize and sell an automobile when, in his opinion, its owner has not paid the tax for the privilege of using it on the public highways without inquiry thereinto, or notice to the owner thereof. That such a law violates every element of due process, and is therefore void, is so obvious and well settled as to make the citation of authority therefor supererogatory. This provision of the statute being separable does not affect the validity of the remainder.
The circuit court should have reversed the judgment of the county court and under section 704, Code of 1930, amended by Laws 1932, chapter 256, tried the case de novo.
Reversed and remanded.