The Yazoo Democrat. [volume] (Yazoo City, Miss.) 1858-18??, 1859-09-03
OPINION OF JUDGE HENRY ON THE
LEVEE LAW.
A. P. HILL, 0hancery Court Of

| The bill in this case was filed to enjoir
the collection Of tax assessed under the
"Levee Law" of December I'd, 1858.
-Four points are relied on by complainant
to sustain the bill
1st. That the law is unconstitutional be-
cause it submits the question of tax or nc
tax to the voters of the district off which
the tax was proposed to be raised
I'd. That the submission required was in
fact not made.
Sd. That the act appropriates money from
the public Treasury for the purpose of in.
ternal improvements, without the bill fol-
that purpose having been passed by vote
of two-thirds of the members Of both
branches oRthe Legislature; and,
4th. Because portion of the general
fund sought to be raised, is, by the act,
appropriated to the former liabilities Of a
portion of the taxpayers.
The Defendants contend that the act &C
quireS no validity from the prOviso requiring
a vote to be taken
I'd. That the notice to be given previously
to the election, was directory and not cons
ditional, and if conditional, was void be.
cause impossible.
The other points defendants pass over
without notice.
The first point is raised and discussed 10
the case Of Williams vs.. Cammack, 9th Mis-
sissipp Reports, p. 200, which arose under
he levee law Of Issaquena county, passed
in 1850, which authorized majority of the
voters of the county to enter their protest
against the tax by particular time, and
thereby defeat its collection; the assessment
and collection Of which tax the previous
part of the act provided for. The Court
decided in that case, that it was not sub,
mitted to the voters of the county to say
whether the law should be valid or not, but
they merely had the option to defeat its
operative effect. If there was no action on
their part, the assessment and collection
would go on as in other cases. They did not
make, but might prevent the operation of
an act already made.
If the act of December I'd, 1858, be SINH.
lar to this, then the question has already
been decided. After providing for the assess.
ment and collection Of the tax in that act,
the following proviso is attached: "Pro.
vided, however, That the said tax proposed
to be levied aud collected in the said coun-
ties of DeSoto, &C., shall first be submitted
TO the legal voters in the district of country
proposed to be taxed, on the first Monday in
January, 1859, &C." Under this proviso
are the voters merely empowered to defeat
the collection of the tax, which would other
wise be collected according to law in full
force, or is their action preliminary and con-
ditional to its being collected at all? If
there be any meaning in language, the latter
is what the proviso ordains. 1t says, " Pro,
vided that the said tax proposed to be levied
and collected in the said counties, shall first
be submitted to the legal voters" &C..
"shall first be submitted" means, shall be
submitted before the tax shall be collected
The action Of the voters must 60 before the
collection of the tax and without the sub
mission to them; no assessment or collection
could ever be made. 1t may be said that
the Legislature had passed tho law, and it
was only left to the voters to provide for the
collection of the tax 1t is difficult to dis
tinguish between law which provides for
the collection of tax, and the law without
the tax. can perceive no difference be.
tween this, and the existence of shadow
after the destruction of the substance from
which the shadow fell
And that the actual existence of the law
to tax, was dependent on the primal action
of the voters, is further corroborated by the
following language Of the proviso (which
said election shall be conducted in the same
manner, and upon the same notice as other
elections; and, if majority of the legal
voters residing in the district Or country
proposed to be taxed, vote against the said
tax, then the same shall not be levied or
collected" Not the district Of country
taxed, but /" the district of country proposed
to be tdred," is the language used. The
proviso continually speaks of the tax as
thing in posse; its advent into, and existence
amongst things actual, depended on its popu
larity with the voters in the district pro-
posed to be taxed"
And the language Of the proviso does not
want corroborations from other portions of
tuc dCt' u6 LOlH StCblOu VI tue act pros
vides that when the election should be held,
" the question voted for shall be tax or
mo tax The question submitted to the
voters was not whether the tax enacted by
the Legislature should be defeated but
whether the law which proposed to levy the
tax should ever go into force.
1t will not do to say, as has been urged, that
the proviso may be disregarded as uncon>
and the body Of the act allowed
to stand.
An act which is dependent on, and has
for its condition an unconstitutional proviso,
is itself nullity. To recognize different
principle would be to subject the Legislative
of the country--not always re.
for their profound knowledge Of
constitutional law-to being mace partic.
pants in all the dangerous and speculative
schemes which seek existence and emolu-
nent under the forms of law.
The second point commended for by the com
planant, is, that the voters of the district
lid not have the notice as in other elections,
provided for by the act.
1t appears from the time at which the act
vas passed, and the day on which it provided
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