Foppiano v. Speed

• Decision Date: 04 June 1904
• Citation: 82 S.W. 222,113 Tenn. 167
• Parties: FOPPIANO v. SPEED, County Clerk.
• Court: Tennessee Supreme Court

82 S.W. 222

113 Tenn. 167

FOPPIANO v. SPEED, County Clerk.

Supreme Court of Tennessee.

June 4, 1904

Appeal from Circuit Court, Shelby County; J. P. Young, Judge.

Action by James Foppiano against R. A. Speed, as county clerk of Shelby county, etc. From a judgment in favor of defendant plaintiff appeals. Affirmed.

Randolph & Randolph, for appellant.

Charles T. Cates, Jr., Atty. Gen., and C. D. M. Greer, for appellee.

NEIL J.

The facts upon which the questions to be determined in this case rest fully appear in the agreed statement appearing in the record, and need not be more particularly referred to than as stated below.

For the purpose of deciding the question involved, it need only be stated that the steamer C. H. Organ is owned by the West Memphis Packet Company, a corporation chartered under the laws of the state of Arkansas, and engaged in plying between two or more points in that state and the city of Memphis Tenn.; that Foppiano is the lessee of the bar privileges, and as such lessee retailed liquors and beer thereon during the years 1901, 1902, and 1903, and is still so engaged. Liquors are sold from the bar at all times when customers desire to be served, including such times as the boat may be at its landing in Memphis, Tenn. The boat referred to makes regular landings at its wharf in the city of Memphis, there receiving and discharging freight and passengers. At such times Foppiano, during the years aforesaid, has been accustomed to make sales of liquors and beer to such persons as desired to make purchases thereof.

The county court clerk of Shelby county, deeming Foppiano liable for the taxes imposed by the state of Tennessee upon persons selling beer and liquors upon steamboats, notified him through the revenue agent of the state. After a hearing the clerk held that Foppiano was liable for the tax, and from this holding an appeal was taken to the State Board of Equalization, which board affirmed the holding of the county court clerk. Thereupon plaintiff in error paid, under protest, the amount of the tax, with penalties and costs, and instituted this suit to recover therefor.

The statutes under which the tax was imposed, contain the following provisions:

"Liquor Dealers. *** Persons selling beer, or any quantities of liquor on steamboats, or any other vessel, or watercraft, or from railroad cars, shall pay a tax, each, in lieu of all other taxes, to be paid in any county they may elect, per annum two hundred dollars." Acts 1903, p. 615, c. 257; Acts 1901, p. 214, c. 128; Acts 1899, p. 1032, c. 432.

1. It is insisted that the county court clerk had no authority to back assess the taxes for the years 1901, 1902, 1903, upon plaintiff in error, Foppiano.

Section 30, c. 258, p. 660, Acts 1903, provides that the clerk of the county court shall collect all privilege taxes. Section 31 provides: "That any property or properties included in this act shall be back, or reassessed for the period now provided by law, viz.: (1) When the same have been omitted from or escaped taxation. *** (5) When the owner, or his agent, fails, refuses, or neglects to list the property to the assessor, as required by law."

Section 46 provides: "That it shall be the duty of the assessor to make a return to the county court clerk of the name of each person, company, firm, or corporation, engaged in any business liable in any way to pay a privilege tax in each district or ward under the provisions of the law. It shall be the duty of the judge or chairman of the county court, and of the county court clerk to examine the lists so returned, and compare the same with the list of persons paying privileges; and he shall report the result to the quarterly court at the July term following the assessment, and the said report shall be read in the full meeting of the county court." See, also, Acts 1901, p. 334, c. 174, § 31; Acts 1899, p. 1112, c. 435, § 32.

Ordinarily of course, the terms "assess" and "assessment" apply only to ad valorem taxation, when used in respect of tax laws; but it is seen that under ...