The comet. [volume] (Jackson, Miss.) 1877-1882, 1881-01-15
SUPREME COURT DECISIONS.
Reported Weekly by Jenkins a. Shot
well. AttOrneys-at.I.aw.
OCTOBER Term. 1850.


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The unanimous opinion of the Court
and the opinion of a majority Of the Court
in this case have already been published
in preceding issues of THE COMET. Be-
low will be found the concurring opinion
Of the Chief Justice, and a dissenting
opinion in the same easel
r. F. BECK, Sheriff and Tax Collector,
VS..
CHARLES b. ALLEN.
CHALMERS, C. j., delivered the follow
ing cOncuring opinion:
The sixteenth section of Art. XII of the
State Constitution is i'm these words "NO
county shall be denied the right to raise by
special tax money to pay for the building
and repairing of cOurthOuses, jails, bridges
people of the county. and money thus col
lected shall never be appropriated for any
other purpose; provided the tax thus levied
shall be certain per cent. on all taxes
levied by the State"
We construed this section in Klein vs.
Supervisors, 81 Miss, and in Gamble VS.
Witty, 30 Miss. as comforting upon the
several Boards of Supervisors the right un-
restricted by legislative control, of levying
such taxes as they thought fit for the pur.
poses indicated In the Section. This con-
structiOn was adopted without discussion
by counsel, or any close analysis by the
Court. If it was wrong, it should be cor
rected, since construction of the Consti-
tuition relating solely to question of pub
lie administration, and which cannot in
vOlve rights of private property acquired
upon the faith Of the decision, the doctrine
stare decisis can have no proper application.
In the wisdom of that decision / am a
firm believer, but it loses much ifnOt all its
force in II case like this. incline now to
was erroneous, though the matter is not
free from doubt.
All power of taxation with us resides
! In the Legislature, and exists no where else
save by legislative grant, unless this clause
of the Constitution cOnfers an Independent
power of levying taxes upon the boards OF
county supervisors. The sectian is either
u negatiOn of power to the Legislature, or
grant of power to these boards. Let us
scrutinize it in both aspects. If this is u
negatiOn of power to the Legislature, IL Is
not complete negatiOn. That body, which
but for this section has the undoubted right
to deny all power of taxation to the boards,
and to levy county taxes itself, leaving to
the boards the control over the expendI-
lures of such taxes, is not, by this section,
prohibited from denying to them the right
to levy excessive taxes, but only from de-
nying the right to levy "sufiicIent taxes"
III it was intended to deny them any con-
troll whatever over the subject the word
''suf1icient" should be omitted, and the
MED the right to raise by special tax
money to pay for, etc., etc."
But the legislature not being prohibited
from denying to the counties the right to
levy taxes which are more than sufficient
for the purposes indicated therein must re-
side somewhere the right to determine
what is sufficient. Where does this power
residey Is it in the CourtsY
l think not, because 1t must ever be es-
sentially an administrative or legislative
question in the settlement of which the
courts would involve themselves in endless
difficulties.
Is it in the Boards of Supervisors
think not, because If so, the insertion of
the word sufficient accomplishes no re-
suit whatever. The meaning of the sem
tence under this view being exactly the
same with that word omitted, l conclude,
therefore, that the power of determination
resides In the general assembly of the peO-
ple-that universal depository of the taxing
power, that independent department Of the
up all legitimate governmental functions
which cannot be specifically located else
where.
The same result follows if we regard the
section AS a grant of power to the Boards Of
Supervisors. Ii Is Il grant Of the right to
levy not unlimited taxes. but Sufficient"
taxes but If the Boards are themselves
the judge of the sufficiency Of the taxes to
be levied by themselves, the grant becomes
unlimited, and the restrictive word "suf-
fcient" Is stricken out.
This word in no event must be stricken
out because 1t is the key note of the SEN
tence and when the body that is to deter
min when IL has been violated is ascertain
ed this meaning of the provision is fixed.
1t does not advance the argument TO say
that the boards are granted the power TO
levy the taxes rs their judgment dictates
and that IL Is mere matter of computation
whether the taxes levied are more than
sufficient, because the question still re-
mains who is to be the computer.
If the right of the boards to determine
the sufficiency Of the taxes is unlimited,
their right to determine for what purposes
they are to be raised must be equally so,
since they may be appropriated either TO
c0urthouses, jails and bridges or to any
.other necessary county convenience" aud
these words must embrace every thing
that these boards under one theory or the
Legislature, under the other, may see fit to
indicate. IL seems doctrine truly alarm
ing to hold that the Boards of Supervisors
can determine what Is a county conven-
fence and then levy such taxes AS they see
fit for its construction, and that their
power in both respects are Unlimited aud
1t IL quite safe TO say that no
ever framed in America con-
tains such provision unless ours does.
IL Is true that IL seems to be an idle
thing TO say that the Legislature must not
deny TO the counties the right TO raise such
taxes as the Legislature thinks sufficient,
but II Is equally incongruous TO grant TO
the Boards of Supervisors an unlimited
mower of taxation nrOyiued they shall moi
levy more than they think sufficient.
Compelled to choose one OF the horns OF
this dilemma l prefer the construction
which gives the Legislature a supervisory
control over the matter because more in
consonance with our part history and the
general current Of Constitutional jurispru-
dence elsewhere, and more conclusive to
the public welfare. Wherever two theories
Of a Constitutional provision seem equally
admissible IL Is the duty Of the court TO adopt
that which Is most In accordance with our
methods and most promotiye OF
the public interest.
This is my construction Of the clause. |
The Legislature which alone possesses the |
power OF taxation ordinarily and grants
authority TO such inferior |
bodies rs IL pleases is forbidden by this sec |
ton TO withhold from the counties the |
right Of taxation for the purposes specified |
to an amount sufficient TO accomplish the |
ends; leaving 10 the Legislative wisdom,
where 30 many other matters Of importance |
are left, the determination Of when that |
point is reached. IL the Legislature pre-
scribes no limit the right Of the county |
boards is unlimited. Ii il prescribcs q
limit, IL must be observed unless IL is a
,otal prohibition Of all taxes. IL thus
mounts 10 a qualified grant OF power OF
AVIATION TO the county boards and n quail
led prohibition TO the Legislature.