Pitts v. City of Vicksburg

• Decision Date: 29 October 1894
• Citation: 72 Miss. 181,16 So. 418
• Court: Mississippi Supreme Court
• Parties: S. O. PITTS ET AL. v. THE CITY OF VICKSBURG

16 So. 418

72 Miss. 181

S. O. PITTS ET AL. v. THE CITY OF VICKSBURG

Supreme Court of Mississippi

October 29, 1894

FROM the chancery court of Warren county. HON. CLAUDE PINTARD Chancellor.

Appeal by complainants from an adverse decree. The opinion states the case.

Decree reversed.

Shelton & Brunini, for appellants.

If by the use of the word "store" it was not intended to include a place where junk is bought and sold, what reason is there for holding that it was intended to include dry goods or grocery stores? Where shall we draw the distinction? This court has held that a small room used as an office, in connection with a lumber yard, is a store. Folkes v State, 63 Miss. 81.

The tax in question is imposed in a revenue ordinance. There is no pretext that it was exacted as a police regulation. Therefore the tax is not authorized as an exercise of the police power.

Booth &amp Anderson, for appellee.

A junk shop is a place where odds and ends are sold and purchased. 12 Am. & Eng. Enc. L., p. 243; 12 Rich. (S. C.), 470. A similar definition is given in the Century dictionary.

The state levies no privilege tax off junk shops. Therefore the city of Vicksburg has the right, under its charter, to impose the tax in question, and it does not come within the limitation imposed by § 3412, code 1892, which restricts municipalities to a levy of fifty per cent. on the state tax. A junk dealer is not the keeper of a store within the meaning of that section. The fact that the business is conducted in a storehouse does not change this. Nor does the fact that another kind of business is carried on in the house, which subjects the party to the payment of the state tax. The business of a junk dealer, like that of a pawnbroker, is a distinctive calling, and taxable as such.

Folkes v. State, 63 Miss. 81, is not applicable. There it was held that a lumber yard was a store, within the meaning of the statute, because it was the business that was taxed irrespective of the fact that it was carried on in or outside of the house.

OPINION

WOODS, J.

The appellants exhibited their bill in the chancery court of Warren county against the appellee, alleging that they were doing business and keeping stores in Vicksburg, in which they had for sale hides, rags, metal, and other articles of like character, and that the articles they kept in their stores were kept for sale, like other merchandise. They allege that their stock, kept in each of the stores, never exceeds in value $ 2,000, and that they have paid. the proper privilege tax to the state for the privilege of carrying on such store. They further show and state that, in January, 1894, there was passed an ordinance by the municipal authorities of said city, entitled ''An ordinance to raise revenue for the city of Vicksburg," which, among other things levied a privilege or license tax of $ 100 on each junk shop or store, and complainants charge that the sole object of the said ordinance was and is to levy privilege taxes on the various trades and callings therein mentioned, in order to raise a revenue for the support of the municipal government. They also aver that, by § 3390, code 1892, a privilege tax, to be paid the state, of $ 10 is levied on each store where the stock does not exceed the sum of $ 2,000, and that, by § 3412 of the code, no city can impose on trades and callings taxed by the state, a tax in excess of fifty per centum of the amount levied by the state on such trades or callings, the business conducted there being liable to the payment of a state privilege tax, under the provisions of the statute levying privilege taxes, as complainants charge in their bill. They aver payment of the proper privilege tax to the state, and the tender to the city treasurer and refusal by him of fifty per centum of the state privilege tax paid by them. They prayed an injunction against the...