Humphries v. Carter

• Decision Date: 12 February 1938
• Citation: 112 S.W.2d 833
• Parties: HUMPHRIES v. CARTER.
• Court: Tennessee Supreme Court

112 S.W.2d 833

HUMPHRIES v. CARTER.

Supreme Court of Tennessee.

February 12, 1938.

Appeal from Chancery Court, Shelby County; John E. Swepston, Chancellor.

Suit by Nettie Price Humphries against E. B. Carter, under Code § 1790 to recover a tax paid under protest. From a decree sustaining the defendant's demurrer, the complainant appeals.

Affirmed.

John W. Palmer and G. P. Douglass, both of Memphis, for appellant.

F. H. Gailor, of Memphis, for appellee.

COOK, Justice.

The defendant, county court clerk of Shelby county, required complainant to pay the privilege tax imposed on each person operating a nursery, or operating a greenhouse by article 2, section 1, item 40, chapter 108, the Revenue Law of 1937. The tax was paid under protest, and the bill filed to recover under Code, § 1790. The chancellor sustained defendant's demurrer, and complainant appealed.

It is insisted that the decree of the chancellor should be reversed (1) because the act does not extend to complainant's use of her land for the production of plants and shrubs; (2) a contrary construction of the act would result in taxation of products of the soil contrary to article 2, § 28 of the Constitution; (3) and any taxation of the use of her land in addition to the imposition of a direct tax would result in double taxation contrary to the requirement of equality of taxation.

It appears from statements of the bill, which are to be taken as true, that complainant owned a house and lot in Memphis, where she resides with her family. She pays a property tax of $35 a year on the lot. To aid in supporting her family, she uses a portion of the lot for the production of plants and shrubs, some of which are propagated in a greenhouse 10 feet wide and 64 feet long. This, she alleges, is an outbuilding on her lot, a part of the lot; that she uses it solely in starting the less hardy plants which are later transplanted in the open soil and developed for sale to persons who come to her premises, select them, and carry them away. The gross receipts from such sales do not exceed $500 a year.

After the court construed chapter 13, article 3, section 1, Pub.Acts 2d Extra Sess. 1931, in the case of Doran v. Crenshaw, 166 Tenn. 346, 61 S.W.2d 469, and held that the provision taxing dealers in flowers did not extend to persons who produced plants for sale, the Legislature broadened the language by declaring it a taxable privilege, and by taxing, not only those who sell cut flowers and potted plants at a regular place of business, but also imposed a tax upon each person operating a nursery or operating a greenhouse.

Privileges embrace any and all such occupations that the Legislature may in its discretion declare to be privileges and tax as such. State v. Schlier, 3 Heisk. 281, 50 Tenn. 281; Kurth v. State, 86 Tenn. 134, 5 S.W. 593; ...