Craig v. Mills

• Decision Date: 26 January 1948
• Docket Number: 36698.
• Citation: 33 So.2d 801,203 Miss. 692
• Court: Mississippi Supreme Court
• Parties: CRAIG v. MILLS.

33 So.2d 801

203 Miss. 692

CRAIG v. MILLS.

No. 36698.

Supreme Court of Mississippi

January 26, 1948

Jackson, Young, Daniel & Mitchell and George J. Schweizer, Jr., all of Jackson, for appellant.

Alexander, Alexander & Chill, of Jackson, and Hunt & McEwan, of Chattanooga, Tenn., for appellee.

McGEHEE, Justice.

This suit was brought by the appellees, Olan Mills and others, as members of the partnership of Olan Mills Portrait Studios, of Chattanooga, Tennessee, to enjoin the appellant, Carl N Craig, as State Tax Collector of Mississippi, from collecting or attempting to collect for any county outside a municipality, and for any municipality, the privilege taxes provided for in the second paragraph of Section 143, Chap 137, Laws 1944, known as the Local Privilege Tax Code, and also the privilege taxes provided for under a similar provisions of Section 150 of the Privilege Tax Code of 1944 for the Yazoo-Mississippi Delta Levee District; and also to enjoin the state tax collector from causing the threatened arrest and prosecution of any of the employees of the complainant in this state for failure and refusal to procure a privilege-tax license as a condition precedent to carrying on the activities set forth in the said provision of these two privilege tax codes.

At the hearing a temporary injunction was granted as prayed for after a demurrer interposed by the state tax collector had been overruled; and when he declined to plead further a final decree was rendered making the said injunction permanent which prohibited the said official from collecting any privilege taxes whatsoever under the particular provision of the statutes in question.

Prior to the enactment of these local privilege-tax codes, the state had reserved unto itself the right to levy such taxes upon most of the businesses and occupations therein specified, but the Legislature then saw fit to repeal a great number of the former statutes in that behalf and to substitute therefor the right of these governmental subdivisions, adopting such codes, to levy taxes on thep rivileges therein mentioned as a means of securing additional revenues for local purposes.

Section 3 of said Chapter 137, Laws of 1944, provides in substance that any person desiring to engage in any business or exercise any privilege which is enumerated in the said Chapter 137 shall first pay for and obtain from the tax collector of the county, if such business is located outside a municipality, a privilege license authorizing him to engage in such business, and shall likewise obtain such a license from the tax collector of the municipality, if such business is located within a municipality.

Section 143 of said Chapter 137, Laws 1944, provides, when construed in connection with said Section 3 thereof, for the levying of privilege taxes in the following manner, to wit:

'Upon each person engaged in the business of photography, including any, or all the processes thereof, as follows:

'In municipalities of classes 1 and 2 .............................. $20.00

'In municipalities of classes 3, 4 and 5 ........................... $10.00

'In municipalities of classes 6 and 7 and elsewhere in the county ... $5.00

'Upon each person engaged in the business of selling, delivering or handling phorographic coupons, certificates, or other devices used as or in exchange on photographs, or making or developing such photographs so procured to be made, the word person herein meaning, or limited to, an individual human being or person taking photographs in this state and developing same outside this state, as follows:

'In municipalities of classes 1 and 2 ............................ $25.00

'In municipalities of classes 3, 4 and 5 ......................... $15.00

'In municipalities of classes 6, 7 and elsewhere in the county .. $10.00'

The legality of the tax provided for under the second paragraph of the above-quoted statute is challenged on the ground, (1) that it imposes an undue burden on interstate commerce in violation of Article I, Section VIII of the Constitution of the United States, and (2) because the amount of the tax is so unreasonable and discriminatory as to result in the destruction of the appellees' business of taking photographs in this state for development outside of the state, when compared with the tax paid by photographers under the first paragraph of said statute where the photographs are both taken and developed in this state, and that, therefore, the imposition of such tax is in violation of Article IV, Section II, of said Constitution and also the Fourteenth Amendment thereto.

The appellees, as members of the partnership of Olan Mills Portrait Studios, according to the allegations of their bill of complaint herein, maintain permanent studios in Jackson, Vicksburg, and Hattiesburg, Mississippi, three of our larger municipalities, and in addition thereto they operate in numerous other municipalities, and in counties outside thereof, throughout the state by means of traveling units, which usually consist of two to five men, but in some instances of a larger number. These men canvass a town and solicit appointments to have pictures taken and are immediately followed by a photographer who takes the same--as a local activity in this state. He may or may not be a nonresident of the state so far as the bill of complaint discloses. A fee of 50 cents is collected by the solicitor when the appointment is made and the customer is advised when and where the photographer will take the picture. A hotel room is generally used by the photographer for the purpose of taking the customer's picture, and at which time another 50 cents is collected. Therupon a negative is made by this photographer and the same is sent either by express or mail to a developing plant of the appellee at Tuscaloosa, Alabama, where proofs are made which are then sent to another representative of the appellees in Mississippi, who notifies the customer by mail of the arrival of such proofs. This representative then submits the proofs to the customer for his approval and takes an order for the number of photographs desired, if any, and thereupon the proofs and order are sent back to the plant at Tuscaloosa for final proceeding. Upon final development of the photographs thus ordered, the same are mailed from said plant direct to the customer in Mississippi, cash on delivery.

The bill of complaint does not specifically allege that the appellees are 'engaged in the business of selling, delivering or handling photographic coupons, certificates, or other devices used as or in exchange on photographs, or making or developing such photographs so procured to be made.' But there is filed as an exhibit to the bill of complaint a copy of the written demand made by the state tax collector for the payment of the privilege taxes in question, wherein it is recited that the appellees are so engaged in business in this state, and the case was proceeded with and the demurrer disposed of as if such allegation had been made, and no point is raised in regard thereto on this appeal.

Thus it is that the case is here on the contention that the appellees are engaged in business in this state in the manner set forth in the second paragraph of the quoted statute. And it is the contention of the state tax collector that the appellees are required to procure and pay for a separate privilege-tax license not only for the photographer who takes the pictures in this state but also for each individual canvasser who solicits the prospective customer to have his photograph taken and arranges for the appointment between him and the photographer for that purpose; and also it would seem that the tax is demanded for the representative of the stadios in this state to whom the proofs are later mailed from its plant at Tuscaloosa, Alabama, to be submitted to the customer for approval and for the purpose of obtaining an order for the number of photographs desired.

It appears that the appellees agree with the above-stated interpretation of the state tax collector as to the intention of the Legislature in the enactment of the second paragraph of the said statute, hereinbefore quoted, but they contend that such an interpretation has the effect of imposing an unreasonable and confiscatory tax, and of rendering the said provision of the statute unconstitutional and void for the reasons heretofore stated.

It is to be noted that this statute declares that 'the word person herein meaning, or limited to, an individual human being or person taking photographs in this state and developing same outside this state' (Italics ours); and hence the soundness of the contention that the tax applies to each of the several solicitors who canvass the town or county to solicit appointments between the prospective customers and the photographer who actually takes the picture, as well as to the person who later submits to such prosecutive customer the proofs which he has received by mail from Tuscaloosa, Alabama, and solicits an order for the photographs which are to be developed at this place outside of the state, to be returned by mail direct to the customer, cash on delivery, is at least very doubtful.

It is also to be observed from the facts hereinbefore stated that neither of these canvassers for appointments with the photographer nor any of those submitting the proofs to the customer for approval and taking the order for the finished product has any part in the actual making of the negatives or the development of the proofds thereof, which work requires the knowledge and skill of experts inthat line of endeavor that is to say, that the employees, other than the photographer, neither take photographs in this state nor develop the same outside of the...