Gulfport & M. C. Traction Co. v. City of Biloxi , 125 Miss. 626 ( 1921 )

Holden, J.,

delivered the opinion of the court.

This is a suit by the city of Biloxi against the Gulfport & Mississippi Coast Traction Company to recover a privilege tax of one hundred twenty dollars upon eight miles of street car line operated in Biloxi. The appellant street railroad defended on the ground that it is a third class railroad, and as such was due only forty dollars, or five dollars per mile, on the eight miles of its line in the ap-pellee city. From a judgment in favor of the city the street railroad appeals.

The city seeks to recover under section 3874, Code of 1906, as amended by Acts 1920, chapter 104, section 60, which reads as follows:

“Street Cars. — On each individual, firm or corporation operating a street or interurban car line, on each mile or fraction thereof, thirty dollars.”

The appellant street railroad contended that it was liable for the privilege tax under section 6573, Hemingway’s Code, as a railroad of the third class, in which class it had been placed by the State Railroad 'Commission; that this tax is ten dollars per mile to the state, and as the city of Biloxi levies a privilege tax of fifty per cent, of the state tax, it was liable for only five dollars per mile.

At the trial, which was heard by the judge without a jury, proof was offered by the city and the street railroad as to the character of the business carried on by the street railroad, its franchise in the city, its purposes and operation. There is testimony showing that the street railroad had a car which it used in transporting freight on its city street line and interurban line. Its city franchise showed it to be a street railroad; its operation, generally and primarily, was in transporting passengers from one part of the city to the other, and also running part of its cars in interurban passenger traffic. The tracks in the city are laid in the street, and even with the surface thereof, and its primary business is that of a street railroad.

We consider it unnecessary to set out the evidence in detail, showing that the appellant was a street railroad “corporation operating a street or-'interurban car line,” but deem it sufficient to say that the proof is overwhelming, if not conclusive, that the appellant corporation operated a street railroad and interurban car line. Therefore it is not a commercial railroad which could be classified as a third class railroad by the State Railroad Commission. There is but scant room for argument to the contrary.

The city' assessment of fifteen dollars £er mile on the eight miles in the city, which is fifty per cent, of the state tax, is correct and valid.

The judgment of the lower court is affirmed.

Affirmed.