Hiller v. Crenshaw

• Decision Date: 13 May 1916
• Citation: 185 S.W. 1082,135 Tenn. 151
• Parties: HILLER v. CRENSHAW, CLERK OF COUNTY COURT, ET AL.
• Court: Tennessee Supreme Court

185 S.W. 1082

135 Tenn. 151

HILLER v. CRENSHAW, CLERK OF COUNTY COURT, ET AL.

Supreme Court of Tennessee.

May 13, 1916

Appeal from Chancery Court, Shelby County; Francis Fentress Chancellor.

Suit by D. M. Hiller against T. B. Crenshaw, Clerk of the County Court of Shelby County, and another, to enjoin the assessment and collection of privilege taxes against the complainant as a wholesale liquor dealer, in which defendants filed a cross-bill, praying judgment. From a decree holding complainant and cross-defendant liable, complainant appeals. Decree affirmed.

P. M Canale and I. H. Peres, both of Memphis, for appellant.

R. L Bartels, of Memphis, for appellees.

WILLIAMS J.

Hiller filed the bill of complaint in this cause against Crenshaw, clerk of the county court of Shelby county, and Woolen, revenue agent for the state, to enjoin the assessment and collection of privilege taxes about to be assessed in behalf of the county and state, respectively, against complainant as a wholesale liquor dealer. The bill alleged that complainant, while doing business as a wholesale liquor dealer, was so engaged exclusively in carrying on interstate commerce, and had confined his business to sales of liquors to nonresidents of this state.

The defendants answered and denied this allegation, and filed a cross-bill, praying judgment for the privilege taxes. The chancellor held complainant and cross-defendant liable for both privilege taxes. Hiller has appealed and assigned errors.

The statute relied on by the state and county is Act 1909, c. 479, § 4, which provides that the occupation or business of a wholesale liquor dealer is subject to a privilege tax of $500, payable to each of the governmental bodies, and defines that persons who sell liquors in quantities of one quart or more are wholesale dealers. It is made a misdemeanor to exercise the privilege without first paying the tax; "but this inhibition shall not apply to any person, firm, or corporation engaged in interstate commerce." Section 16.

1. The first contention of the cross-complainants in support of the claim to the taxes is that the doing of an intrastate business is made manifest by the following facts in proof: In the ordinary course of his business, Hiller customarily replenished his stock by purchases made of various liquor dealers in Memphis. He would either telephone for the liquors or order them in person, and they would be delivered at his place of business in bulk; he would break the packages, distribute the stock in his storeroom, and later ship to customers out of the state.

The decision in Heyman v. Hays, 35 S.Ct. 403, 236 U.S. 178, 59 L.Ed. 527, is relied on by appellant, Hiller. In that case, however, the Supreme Court of the United States apparently took pains to show that the particular feature here involved was not to be deemed one appearing in that case; that is, the replenishing from other dealers located in this state of the stock of Hiller, gathered for shipments to points out of this state. While we think it apparent from the opinion in the Heyman Case that the Supreme Court had this factor (Cargill v. Minnesota, 180 U.S. 452, 21 S.Ct. 423, 45 L.Ed. 619) in mind, and that it was not touched upon, by way of inclusion in its ruling, we are of opinion that the instant case may turn upon another point.

2. Further proven facts are that, as a customary and substantial feature of his business, appellant carried with other liquor dealers in Memphis what he terms a "borrow...