Toombs v. Sharkey , 140 Miss. 676 ( 1925 )

In my judgment, Cox v. Wallace, 100 Miss. 525, 56 So. 461, although unsound and most mischievous in its results and therefore ought to be overruled, is the law of the state as long as it stands, and is controlling in this case in favor of appellant, and therefore this case ought to be reversed instead of affirmed.

In the Cox case, the court was dealing with the constitutionality of subdivision (q) of section 90 of the Constitution, which prohibits, among other things, local, private, or special laws relating to water courses. The statute, the constitutionality of which was challenged, was the drainage act embodied in sections 371 to 391, inclusive, Code of 1906. That the statute related to water courses was conceded. By its terms the statute exempted from its operation "land overflowed by backwaters of the Mississippi." The court held that, notwithstanding that exception, the statute was general, applying to the whole state, and therefore not violative of paragraph (q) of section 90 of the Constitution. The statute here involved excepts from its general provisions "all counties having an assessed valuation of twenty-five million dollars or more, in a levee district, where a cotton tax is imposed for levee purposes." Washington and Bolivar counties are the only counties in the state which are in a levee district where a cotton tax is imposed for levee purposes. What is the difference in principle under this provision of the Constitution in excluding from the operation of a statute lands overflowed by backwaters of the Mississippi river, and excluding the lands composing counties lying in a levee district where a cotton tax is imposed for levee purposes? I am unable to see the distinction. As it appears to me, the classification in the latter is just as germane and reasonable as the classification in the former.

However, both statutes are purely and simply local laws because each creates a class of the excluded territory which, on account of its nature, the territory composing the balance of the state can never get into.