City of Pascagoula v. Carter

• Decision Date: 10 November 1924
• Docket Number: 24559
• Citation: 101 So. 687,136 Miss. 750
• Court: Mississippi Supreme Court
• Parties: CITY OF PASCAGOULA v. CARTER. [*]

101 So. 687

136 Miss. 750

CITY OF PASCAGOULA v. CARTER. ^[*]

No. 24559

Supreme Court of Mississippi

November 10, 1924

Division B

1 LICENSES. Law placing, privilege tax on automobile dealers held not to include dealers' salesmen.

Under section 6, chapter 117, Laws of 1924, providing a privilege tax on automobile dealers, the statute means that those engaged in the business of selling automobiles shall pay the privilege tax, and does not mean that each employee engaged in the service of the seller in making sales shall pay such tax.

2 LICENSES. Occasional sale by setter having no place of business, and no stock of automobiles, held not conducting business tinder law providing privilege tax on automobile dealers.

The making of an occasional sale in a municipality where the seller has no place of business, and no stock of automobiles an hand, is not conducting a business as dealer in automobiles.

HON. D M. GRAHAM, Judge.

APPEAL from circuit court of Jackson county, HON. D. M. GRAHAM, Judge.

James J. Carter was convicted in the city court of Pascagoula of the violation of an ordinance, and on appeal to the circuit court was discharged, from which judgment the city appeals. Affirmed.

Judgment affirmed.

H. B. Everitt, for appellant.

The liability of the appellee depends on the construction of section 6, chapter 117, Acts of 1924, and section 5864, Hemingway's Code, as well as on the restrictive provisions of section 6639. As to the first of the propositions, I desire to call the court's special attention to the peculiar wording of the Act of 1924, requiring a privilege license from persons, firms or corporations dealing in automobiles and the concluding clause "and each person or individual selling or offering for sale automobiles, whether new or second hand, shall pay this tax."

There are several instances that are familiar to us all requiring each individual to pay a privilege tax regardless of their association as co-partners or as officers or managers of corporate businesses. Clarksdale Insurance Agency v. Cole, 87 Miss. 637; Mitchell v. State, 67 Miss. 644; Hendon v. State, 61 Miss. 146.

But in each of the above cases the amount to be paid by the agency was different from the amount required of the individual agent which tended to make clear the idea that a distinction was intended.

In this case if my contention is correct, the amount required of the firm or corporation is the same as is required of the individual and where there is an agency or a dealer in automobile doing business as a firm or corporation it seems clear that a license must be paid by the firm or corporation for doing business in such capacity and a person doing such business alone pays the same amount. But it now becomes necessary if this provision is clear, to find some separate meaning and use for the last clause of this last paragraph of the section to which attention is called. "And each person or individual selling or offering for sale automobiles, whether new or second hand, shall pay this tax." It was certainly not necessary to use this language to make clear the idea that selling or offering for sale automobiles would render a person liable as a dealer. And had this been the purpose it would have been much more clearly expressed by saying that any person, firm or corporation so operating would be liable, whereas the word "individual" is here used for the first time. And manifestly the individual liability on the part of every individual offering automobiles for sale was the matter in mind. Certainly any other construction would render this clause senseless.

And as a matter of common knowledge there exist the same reasons based on a similarity of methods of business and scope of operation for requiring this double tax that apply to the operation of insurance agents both fire and life and to sewing machine agents. If it can put one agent in Pascagoula without payment of the privilege license, it can put as many more as the business will justify and carry on the great bulk of its business in larger towns and cities while located in a small town or hamlet requiring the minimum amount of privilege license.

Section 5864, Hemingway's Code, was construed in Greenwood v. Delta Bank, 75 Miss. 162, to mean that municipalities were given the power to levy and collect this tax required to be paid by all persons doing business within the municipal limits, which business or calling is taxed by the state and to limit the amount to fifty per cent of the state tax. It will not be denied that the legislature, in conferring this power could have fixed other and further limitations, but since the legislature did not, certainly the courts cannot fix other limitations such as were insisted upon in this case in the court below.

No brief filed for appellee.

OPINION

ETHRIDGE, J.

The appellee, James J. Garter, was charged with violating an ordinance of the city of Pascagoula by carrying on the business of automobile dealer in said city without paying the privilege tax. He was convicted in the city court and appealed to the circuit court, where the case was tried on an agreed statement of facts which is as follows:

"It is agreed by the parties hereto that this cause may be submitted to the presiding judge for decision, a jury being waived, on the following state of facts, which are agreed to be the facts on which the charge was made, and on which the defendant was convicted in the city court, from which he appealed,...