Carney v. Hamilton

• Decision Date: 18 December 1906
• Citation: 89 Miss. 747,42 So. 378
• Court: Mississippi Supreme Court
• Parties: WALTER L. CARNEY v. THOMAS HAMILTON, TAX COLLECTOR

42 So. 378

89 Miss. 747

WALTER L. CARNEY v. THOMAS HAMILTON, TAX COLLECTOR

Supreme Court of Mississippi

December 18, 1906

November 1906

FROM the chancery court of Copiah county, HON. ROBERT B. MAYES Chancellor.

Carney appellant, was complainant in the court below; Hamilton, tax collector of Copiah county, appellee, was defendant there. From a decree in favor of defendant the complainant appealed to the supreme court.

Complainant who was engaged in the wholesale grocery business, sued out an injunction to restrain the defendant from proceeding by distress to collect from him a privilege tax of $ 150 for the year 1904, pursuant to instructions of the state revenue agent under Laws 1904, ch. 17, sec. 18, p. 62. This section levies a privilege tax of $ 150 on each factory or bottling establishment for the bottling of coca-cola, celery-cola afri-cola, hecks-cola, cola-beta, colavine, nervo-cola, or any similar or proprietary drink, and $ 150 on each depot for the distribution or shipment of coca-cola, celery-cola, afri-cola, hecks-cola, cola-beta, colavine, nervo-cola, or any similar or proprietary drink. The suit was tried upon agreed statement of facts, as follows:

"Carney, the complainant, was engaged in the wholesale grocery business in the town of Crystal Springs during the year 1904-05, and had a place of business in said town in which he kept the goods, wares and merchandise (such as flour, meal, corn, oats, hay, meat, sugar, tobacco and other things usually kept by wholesale grocery merchants for sale), which he sold by the wholesale to merchants in Crystal Springs and the surrounding country. That he also kept in said place of business coca-cola which he sold and distributed in single case and case lots, just as he sold and distributed the other merchandise kept by him, and that he never sold any coca-cola by the bottle. That during the year 1904-05 the said Carney made numerous purchases of coca-cola from the Canton Bottling Works, which is located at Canton, Miss. and from no one else, and that when said coca-cola was shipped to Carney, it was placed in his store, just as his other goods were placed, and the property in said coca-cola was in Carney, or, in other words, said coca- cola belonged to said Carney. That said Carney paid the privilege tax required of a wholesale merchant to carry on said wholesale grocery business during the year 1904-05, but did not pay the privilege license of $ 150 provided for by Laws 1904, ch. 76, sec. 18, p. 62, under the subdivision 'coca-cola and colavine.' It is further agreed that the tax collector of Copiah county was directed to assess said Carney for keeping a depot for distribution of coca- cola, as appears by the notice of assessment addressed to him by Wirt Adams, state revenue agent, and that he did so assess said Carney as directed, and entered the assessment on the personal assessment rolls of Copiah county; that subsequent thereto and in due time said assessment was formally and duly objected to by said Carney, and said objections were filed with the clerk of the board of supervisors of Copiah county, and the same were sustained by the board of supervisors of Copiah county; and that said revenue agent did not appeal from said order, assuming that the board of supervisors had nothing to do with the assessment. It is further agreed that said Canton Bottling Works paid the privilege tax provided for by the laws of 1904 in reference to bottling establishments for bottling coca-cola, etc., but this tax was paid at Canton, Madison county, Miss. and said Canton Bottling Works had no interest in the coca-cola sold to Carney by it after the same was delivered to him. It is further agreed that the defendant, Hamilton, tax collector, was undertaking to distrain the property of complainant and collect the tax from complainant for keeping a depot for the distribution of coca-cola for the year 1904, as alleged in complainant's bill and as admitted in defendant's answer."

The court dissolved the injunction and rendered decree adjudging the complainant to be due the said privilege tax of $ 150, and also statutory penalty of $ 150 additional; awarded damages upon complainant's injunction bond to the extent of $ 25 as counsel fees to defendant, and dismissed the bill of complaint.

Reversed and case dismissed.

J. S. Sexton, for appellant.

The question here is whether the appellant, Carney, was maintaining a depot for the distribution or shipment of coca-cola, within the meaning of Laws 1904, ch. 76, sec. 18.

If we examine the language of the statute above referred to we find the words "depot for the distribution, " and "depot for the shipment, " of coca-cola, used interchangeably. And the words "manufacturer" and "distributor" used in the same way. There is not even a hint in the statute in reference to the sale of coca-cola, either by wholesale or retail, and, of course, Carney, the appellant, had a right to sell anything not prohibited by law under his license as a wholesale grocer, so the whole question turns here upon the meaning of the terms used by the statute, viz., "depot for the distribution or shipment of coca-cola, " etc.

If, under the agreed statement of facts, Carney's place of business was a depot for the distribution or shipment of coca-cola, it was also a depot for the distribution or shipment of soap and matches, both of which he sold in cases and case lots, just as he did coca- cola, and never by the single box. Suppose that Carney had placed over his door, "Depot for distribution or shipment of soap, " and the ordinary citizen had stepped into this place of business and found it filled with bagging, ties, hay, etc., would he have thought that the sign over the door truly exhibited the nature of the business? Certainly not. If Carney was keeping a "depot" for the distribution or shipment of coca-cola, he was also, under the statement of facts, keeping a dozen other kinds of "depots."

It is shown that the coca-cola sold by Carney was bottled at Canton, Mississippi, by the Canton Bottling Works, which paid the tax of $ 150. If ...