Bailey v. Berry, 39189
| Decision Date | 22 March 1954 |
| Docket Number | No. 39189,39189 |
| Citation | 71 So.2d 181,220 Miss. 395 |
| Parties | BAILEY v. BERRY. |
| Court | Mississippi Supreme Court |
Chill, Landman & Gordon, Jackson, for appellant.
Butler, Snow & O'Mara, Jackson, Cooledge, Becker, Wall & Wood, Dayton, Ohio, for appellee.
The appellant, Mrs. Thomas L. Bailey, State Tax Collector, brought this suit for the use and benefit of Rankin County against L. M. Berry, doing business as L. M. Berry and Company, and Southern Bell Telephone and Telegraph Company, demanding the sum of $300 as privilege taxes and damages alleged to be due the County of Rankin by the appellees for conducting the business of commercial advertising in the County of Rankin for the years June 1, 1944 to June 1, 1952, within the meaning of Section 6, Chapter 137 of the Laws of 1944.
The Southern Bell Telephone and Telegraph Company was joined as a defendant by way of attachment in chancery to bind in its hands any sums due the said L. M. Berry, but the bill of complaint was later dismissed as to the telephone company and the attachment discharged upon proper bond furnished by the telephone company in accordance with the provisions of Section 2733 of the Mississippi Code of 1942. The suit proceeded solely as between the Tax Collector and the defendant Berry and resulted in a decree dismissing the original bill, from which decree this appeal is prosecuted.
The liability of the appellee for the privilege taxes and penalties here sought to be collected is asserted under and by virtue of Section 6 of Chapter 137 of the Laws of 1944, reading as follows:
.
The aforesaid Chapter 137 of the Laws of 1944 is known as the 'Local Privilege Tax Law of 1944' and was duly adopted by the Board of Supervisors of Rankin County by resolution entered upon its minutes.
It is the contention of the appellant that during the period alleged in the original bill, the appellee was engaged in Rankin County, Mississippi, in the business of commercial advertising, preparing commercial advertisements or negotiating and making advertising contracts for profit, within the meaning of the aforesaid statute and thus became liable for the privilege tax thereby imposed. The appellee contends that he was not at any time engaged in such business in Rankin County or elsewhere in the State of Mississippi, but that if the activities in which he was engaged in the State of Mississippi, beginning January 21, 1948, be held to be such as to subject him to liability for the tax imposed by the a foresaid statute, then he would be liable for the tax only in Jackson, Hinds County, Mississippi, where he conducted his activities, and which was his only place of business.
We have reached the conclusion that even if it be conceded that the activities in which the appellee was engaged were such as to constitute him a commercial advertising agency within the meaning of the aforesaid statute, he would be liable for the tax only in Jackson, Hinds County, Mississippi, where he conducted such activities and which was his only place of business, and that such liability would attach only from the beginning of such activities on January 21, 1948.
This conclusion renders it unnecessary for us to decide on this appeal, and we do not decide, the question as to whether or not the activities in which the appellee was engaged in the State of Mississippi as shown by this record were such as to constitute him a commercial advertising agency within the meaning of the above-quoted statute, and we expressly pretermit the decision of that question.
We need state only such facts as are pertinent to our decision on this appeal.
For many years the Southern Bell Telephone and Telegraph Company and its predecessor, The Cumberland Telephone and Telegraph Company, owned and operated a telephone system in the State of Mississippi and other states, and furnished to the public telephone exchange service in said states and operated therein a large number of telephone exchanges. Throughout the period of operation by the Cumberland Telephone and Telegraph Company and the Southern Bell Telephone and Telegraph Company in Mississippi and other states, they published and distributed to their subscribers alphabetical and classified telephone directories containing restricted advertising matter and featuring the telephone number and address of the advertiser in order to facilitate telephone service and to render more efficient and satisfactory service to the public. Advertising in the directories is carried for telephone subscribers only. The type of advertisement appearing in the directories is restricted by the telephone company as to size and scope and content, and the cost of the advertisement is billed monthly by the telephone company to the subscriber. Solicitations for applications for advertisement in the directories are made by a representative or representatives of the telephone company and on forms furnished by the telephone company, and all applications are taken in the name of the company and subject to acceptance or rejection by the company.
Prior to January 21, 1948, solicitation for such applications was made by salaried employees of the company. On January 21, 1948, the telephone company entered into a...
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