tion of his contract becomes impossible on account of the destruction of the building without his fault: Angus v. Scully, 176 Mass. 357, 79 Am. St. Rep. 318. See, too, Kaisey v. Waukesha Springs etc. Co., 125 Wis. 311, 110 Am. St. Rep. 838; Krause v. Board of School Trustees, 162 Ind. 278, 102 Am. St. Rep. 203; Middlesex Water Co. v. Knappmann-Whiting Co., 64 N. J. L. 248, 81 Am. St. Rep. 467; Nicol v. Fitch, 115 Mich. 15, 69 Am. St. Rep. 542.

RODGE v. KELLY.

[88 Miss. 209, 40 South. 552.]

CONSTITUTIONAL LAW-Class Legislation-Due Process of Law. A statute and city ordinance imposing a privilege tax on each person loaning money secured by bill of sale or mortgage on designated kinds of personal property, but not imposing such tax on lenders otherwise securing their loans, are unconstitutional and void as class legislation, and as depriving persons of their property without due process of law. (pp. 735, 736.)

Anderson & Voller, for the appellant.

Dabney & McCabe, for the appellees.

215 WHITFIELD, C. J. This is a suit brought by John F. Rodge, appellant here, against Robert M. Kelly, assessor and tax collector of the city of Vicksburg and the mayor and aldermen of the city of Vicksburg, to recover the sum of two hundred and fifty dollars, paid by the said Rodge into the treasury of said city under protest; said amount being required of him by the said city tax collector as a privilege tax, under an ordinance of said city which is claimed by appellant to be unconstitutional and void. The history of said ordinance is as follows: The legislature, during its session of 1904, under "An act creating privilege taxes on certain industries in the state of Mississippi," passed the following stat

ute:

"Section 1. Be it enacted by the legislature of the state of Mississippi, That a privilege tax is hereby created on the following industries of the state of Mississippi:

"Sec. 57. Money lending.-On each individual, firm or corporation doing a money lending business on personal securities, such as household and kitchen furniture, or wearing apparel, pianos, sewing-machines, jewelry, silver, glass, plate or

ware, whether such loan is secured to the lender by bill of sale of such personal property, or whether such loan is secured by mortgage or deed of trust, $500.00": Laws 1904, c. 76, p. 71.

Thereupon, and in pursuance of this statute, on the eighteenth day of April, 1904, the city council of the city of Vicksburg passed the following ordinance, which was approved April 20, 1904, and which was to take effect from and after May 1, 1904, to wit:

"Privilege tax ordinance.-An ordinance imposing a priv ilege 216 tax on certain trades, business professions and callings, to provide revenue for the city of Vicksburg.

"(1) Article 11. On each individual, firm or corporation doing a money lending business on personal securities, such as household and kitchen furniture, wearing apparel, pianos, sewing-machines, jewelry, glass, plate or ware, whether such loan is secured to the lender by a bill of sale of such personal property, or whether the loan is secured by mortgage or deed of trust, $250.00."

It will be observed that this ordinance is in the exact language of the statute, except as to the amount, which is two hundred and fifty dollars, being fifty per centum of the state tax, the statutory (Code 1892, sec. 3412) maximum limit. The appellant, John F. Rodge, and others, at the time of the passage of said statute and ordinance, were engaged in the city of Vicksburg in the business of money lending on the securities denounced by said statute and ordinance, and were required by the respective tax collectors of Warren county and the city of Vicksburg to pay said privilege tax of five hundred dollars and two hundred and fifty dollars. These taxes were paid under protest, on the announcement and claim that said statute and ordinance are unconstitutional and void; and suits have been brought against these officers to recover back said amounts. The declaration in the case at bar, as will be seen by inspection, set out this statute and ordinance, alleges that plaintiff is a money lender dealing in the securities denounced by said acts; that no others of the class of money lenders are required by said statute and ordinance to pay any privilege tax, and that the said acts amount to class legislation, and are therefore unconstitutional and void. To this declaration a demurrer was interposed, calling in question the legality of plaintiff's contention, which was sus

tained by the lower court, and from this decision plaintiff appeals.

Appellant's contention is that this statute and ordinance are 217 void because (1) they are in conflict with that part of section 1 of the fourteenth amendment to the constitution of the United States, which says: "Neither shall any state deprive any person of life, liberty or property without due process of law; nor to deny to any person within its jurisdiction the equal protection of the law." Appellant says that this is true (a) as to the money lender embraced in these acts; and (b) as to the borrower who borrows money on the securities denounced by said acts. (2) They are in conflict with that part of section 1 of the fourteenth amendment to the constitution of the United States, and section 14 of the state constitution, which say: "No person shall be deprived of life, liberty or property except by due process of law," in that both the statute and the ordinance purport on their face to be for the levying and collection of a license tax, but in reality they are clearly and palpably an attempt to destroy and prohibit a legitimate business.

The purpose of this act seems to have been to provide this high license in the case of the money-lending sharks, well known in some of the cities of this state, who are in the habit of lending small sums of money at most iniquitous and exorbitant rates to servants in families and other necessitous persons, and securing from such persons bills of sale of household and kitchen furniture, plate, ware, etc., which articles are at the time of such loan in the actual personal use of such persons so securing such loan. The purpose of preventing this infamous system of robbery under the guise of money lending, which sought to subject to quick sale, within a week's time often, the articles which constitute, in such actual personal use of those securing the loan, the necessities of decent existence, is a justly righteous purpose. Money-lending concerns, so called, which would sell the piano on which the daughter is learning music, the small and plain jewelry upon the person, the sewing-machine on which are made the clothing worn in humble households, and the plain plate and glass in customary use amongst the humble and needy, in the enforcement of contracts of loans at such rates of interest as were referred to and condemned in Woodson v. Hopkins, 85 Miss. 171, 107 Am. St. Rep. 278, 37 South. 1000, 38 South. 298, 70 L. R. A. 645, as making such contracts void as against

218

public policy, are engaged in transactions simply and utterly infamous and which cannot be enforced in any court. But the trouble with this statute, as drawn, is that it prohibits loans on personal securities of the kind named, without reference to any rate of interest. If only the securities be of the kind named in this statute, no loan could be made, except upon payment of this high license, not exacted of any other money lender, at even six per cent, or five per cent, or any per cent whatever. Again, under this statute, money lenders on personal securities of this kind would have to pay this high license in order to loan at any rate of interest, however low, on jewelry worth one hundred thousand dollars in a store, or silverware worth one hundred thousand dollars in a store, or on all the pianos in a factory. As written, the statute is unfortunately class legislation, falling within the inhibition of the constitutional provisions named.

It may well be that no statute is needed to prohibit the kind of contracts condemned in Woodson v. Hopkins, 85 Miss. 171, 107 Am. St. Rep. 278, 37 South. 1000, 38 South. 298, 70 L. R. A. 645, since the contracts condemned in that case were not contracts condemned because of usury, but contracts condemned, as clearly stated in that opinion, because they were so grossly exorbitant and iniquitous in all their features as to be void as against public policy. There is no need of a statute to prohibit contracts and businesses which the courts have declared void as against public policy. If, however, it was the purpose of the legislature to withdraw such contracts from the condemnation of being against public policy upon the condition of the payment by persons and corporations engaged in them of a very high license, it would still remain true that the statute enacted in that view must conform to the provisions of the constitution of this state and the United States referred to.

The judgment is reversed, the demurrer overruled, and the cause remanded.

Class Legislation is not Unconstitutional, provided the class is composed of individuals possessing in common some disability, attribute, or qualification, or in some condition marking them as proper objects for legislation: Horwich v. Walker-Gordon Laboratory Co., 205 Ill. 497 98 Am. St. Rep. 254; Deyoe v. Superior Court, 140 Cal. 476, 98 Am. St. Rep. 73; O'Connor v. St. Louis Transit Co., 198 Mo. 622, 115 Am. St. Rep. 495. It is only when persons engaged in the same business are subjected to different restrictions, or are granted different privileges under like conditions, that the discrimination is

open to objection, or can be said to impair the equal right and protection which all may claim under the law: Butte v. Paltrovich, 30 Mont. 18, 104 Am. St. Rep. 698; Douglas v. People, 225 Ill. 536, 116 Am. St. Rep. 162.

AVANT v. STATE.

[88 Miss. 226, 40 South. 483.]

MURDER-Verdict Begging Mercy-Sentence.-A verdict in murder case that "We, the jury, find the defendant guilty as charged and beg the mercy of the court," followed by a sentence of death, the court being silent as to the plea for mercy, cannot be sustained. (p. 737.)

MURDER-Clouded Verdict.-The legal effect of a verdict in a murder that "We, the jury, find the defendant guilty as charged and beg the mercy of the court," is to impose the death sentence; but, in such case, the court, should require the jury to remove the cloud from the finding and make the meaning of the verdict plain. (p. 737.)

G. W. Lindsey and W. J. East, for the appellants.

R. V. Fletcher, assistant attorney general, for the appellee. 227 CALHOON, J. The verdict in this murder case is: "We, the jury, find the defendant guilty as charged and beg the mercy of the court." The court did nothing and said nothing, but pronounced the sentence of death. In the light of authority no verdict of guilty with such a petition for mercy, and the court silent, can be sustained, however horrible the case may be. In Smith v. State, 75 Miss. 558, 23 South. 260, the court said: "Of course, the legal effect of the verdict in this case in the words used is by legal construction death. But the words employed in a verdict are the mere vehicles for conveying the jury's will; and where there are words in the verdict raising an 'apparent cloud' as to what the actual intent and finding of the jury is, the court, whether asked or not, should 'dispel that cloud' and have the jury make plain their meaning. And the court, of course, had the amplest power to do this, and, if necessary, to send them back to the jury-room to render a clear and unambiguous verdiet; and most especially should this ample power be exercised in a capital case."

We can only pronounce the law, and this case must be reversed and remanded.

Am. St. Rep., Vol. 117-47