Board of Levee Commissioners for Yazoo & Mississippi Delta v. Houston ( 1902 )

Terral, J.,

delivered the opinion of the court.

Houston, under license granted by the board of supervisors of Tunica county, operated a dramshop in a building placed between the levee ánd the Mississippi river. Houston carried on his business for two years, but declined to pay annually a tax of <$100, which ch. 78, acts 1891, imposed upon him for benefit of the Board of Levy Commissioners for the Yazoo and Mississippi Delta. The tax, now amounting to $400, being doubled annually because of nonpayment at the proper time, was resisted upon the- ground that it was illegal under sec. 238 of the constitution, which provides that ‘ ‘ no property situated between the levee and the Mississippi river shall be taxed for levee purposes. ’ ’ The court below sustained that contention, and the levee board appeals.

We are of the opinion that the exemption here insisted upon cannot be sustained. The property exempt from taxation by the levee board is properly situated — naturally situated — between the levee and the river. It includes, as we think, land and buildings thereon, for such property only comes within the designation. Though there might be personal property upon a plantation situated between the levee and the river, the personal property could not properly be said to be situated between the levee and the river. To speak of personal property as situated or located upon a particular spot of ground seems incongruous, especially as to all live property. The argument here most strongly made is that the license to retail liquor is a franchise, that a franchise is property, and hence comes within the letter of sec. 238 of the constitution. But the idea of a situs to property affixed to it by the constitution seems to designate it as real estate or property having the qualities of real estate, and was not intended to include incorporeal, intangible property or rights, of property not naturally incident to it, but affixed to it by the art of man, as a ferry right, or the right here considered of operating a dramshop. We think the framers of the constitution did not intend to include within the meaning of the word “property,” as used in sec. 238, any species of intangible property which are in nowise affected by the overflow of the river.

The license to keep the dramshop was granted by the board of supervisors of Tunica county, and would have been- granted by them upon the same terms and conditions whether the building in -which it was to be conducted was within or without the levee; and it is not reasonable to suppose that the choice of the building made by the owner in which to carry on his business should determine the question of exemption • from taxation. For, if so, the taxation-of the property is not determined by the lawmaking power, but by the dramshop keeper in the selection of the house in which to conduct his business. That idea certainly could not have been in the mind of the framers of the constitution.

We think the exemption claimed is not maintainable, and the judgment of the circuit court is reversed and the case remanded.

Reversed and remanded.