Burns v. Johnson

• Decision Date: 01 July 1939
• Parties: BURNS v. JOHNSON, Constable, et al.
• Court: Tennessee Supreme Court

130 S.W.2d 89

BURNS v. JOHNSON, Constable, et al.

Supreme Court of Tennessee.

July 1, 1939.

Appeal from Chancery Court, Shelby County; L. D. Bejach, Chancellor.

Suit by W. F. Burns against J. C. Johnson, Constable, and others, to recover taxes, penalty, and costs paid under protest. From a decree for the complainant, defendants appeal.

Affirmed.

F. H. Gailor, of Memphis, for appellants.

Ralph Davis and Hugh Magevney, both of Memphis, for appellee.

COOK, Justice.

A distress warrant was issued by the county court clerk and placed in the hands of J. C. Johnson, constable, to enforce payment of a tax alleged to be due from the complainant W. F. Burns as the operator of a protective agency. The tax, penalty, and costs, amounting to $253.45, were paid under protest, and complainant filed the bill to recover the amount exacted from him, upon allegations that he was not operating a protective agency and not subject to the tax.

The cause was heard by the chancellor upon bill, answer, and proof, and he found that complainant was engaged in the business of a night watchman and as such was not taxable as a protective agency, and upon that finding the chancellor entered the decree awarding complainant a recovery.

The defendants appealed and have assigned errors that raise the question of whether or not under the facts the complainant is taxable under the statute. Item 33, § 1, Art. 2, Chapter 108, Pub.Acts of 1937, under the heading "Detective, Investigating Or Protective Agencies," imposes a tax of one hundred dollars upon "any person operating a detective agency or investigating agency or protective agency, or any person acting as a detective, investigator or protective agency or making confidential reports."

It is shown by the evidence that complainant is employed by several merchants and manufacturers in the City of Memphis to inspect their premises at night, and that he is aided in the work by three or more assistants. His duties under the employment are to examine the doors of storehouses after they are closed to see whether the doors are locked; to seal the doors after they are locked; to raise the awnings in front of stores at night and lower them the next morning; to see that lights in the stores are extinguished; in winter, to observe the heating plant and see that the heat is properly maintained; if fire is observed, to notify the fire department, and in case of burglary to notify the employer and the police department. Upon these facts the...