Hamel v. Marlow , 171 Miss. 559 ( 1934 )

ON SUGGESTION OF ERROR. On a former day of the present term of this court the decree of the court below awarding the appellee damages on the appellant's bond for an injunction was reversed, and a judgment for such damages as the court should have awarded was intended to be entered. This judgment included the amount of the privilege tax due by the appellant, but did not include the damages for the nonpayment of the tax, provided by section 238, chapter 89, Laws 1932. We will adhere to our former opinion on the merits and will here only specifically refer to one contention now made for the first time by counsel for the appellee, which is that the appellant's cocomplainants in the court below have not appealed, and there was no summons and severance, as provided by section 22, Code 1930. It is too late now to raise that question. Wilkinson v. Love, 149 Miss. at page 533, 115 So. 707, at page 709. This brings us to the omission in our former judgment of the damages provided by the statute above cited.

In his answer to the suggestion of error appellant says that section 238, chapter 89, Laws 1932, should be construed in connection with section 420, Code 1930, by which he was given the right to test the validity of the tax here in question by an injunction, and when so construed it will appear that the Legislature did not intend to penalize the taxpayer for delaying the payment of his taxes by the exercise of the right given him to contest the validity thereof. We do not think the two sections are susceptible of that construction. The penalty is imposed for the failure to pay the tax when due, and an unsuccessful contest of the validity of a tax, though prosecuted in good faith, does not, except in a few jurisdictions, relieve the taxpayer of the penalty imposed for the nonpayment thereof when due. 61 C.J. 1490, and the authorities there cited.

The judgment hereinbefore rendered will be set aside, and another judgment will be rendered in accordance therewith, except that the appellant will be charged with the payment of the tax enjoined, the penalty imposed by section 238, chapter 89, Laws 1932, and ten per cent. on both, as provided by section 422, Code 1930.

So ordered.