Independent Linen Service Co. v. State ex rel. Rice

• Decision Date: 12 February 1934
• Docket Number: 31038
• Citation: 152 So. 647,169 Miss. 62
• Court: Mississippi Supreme Court
• Parties: INDEPENDENT LINEN SERVICE CO. v. STATE ex rel. RICE

152 So. 647

169 Miss. 62

INDEPENDENT LINEN SERVICE CO. v. STATE ex rel. RICE

No. 31038

Supreme Court of Mississippi

February 12, 1934

Division A

Suggestion Of Error Overruled March 12, 1934.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Action by the State, on the relation of Greek L. Rice, against the Independent Linen Service Company. From an adverse judgment defendant appeals. Reversed and rendered.

Reversed, and judgment for appellant.

G. Garland Lyell and Louis C. Hallam, both of Jackson, for appellant.

A statute licensing a business or occupation must be reasonable, and must not be oppressive or confiscatory or prohibitory.

37 C. J. 186, sec. 36; 37 C. J. 192, sec. 42; 37 C. J. 198, sec. 52; 37 C. J. 200, sec. 53; Riley v. Ayer & Lord Tie Co., 147 Miss. 105, 113 So. 214; 37 C. J., pp. 190 and 193; 12 C. J. 1155; Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692; Rodge v. Kelly, 88 Miss. 209, 40 So. 552, 11 L. R. A. (N. S.) 635, 117 A. S. R. 733; State v. Lawrence, 105 Miss. 58, 61 So. 975; Grenada Bank v. State, 98 Miss. 536, 542, 54 So. 8; State v. L. & N. R. R. Co., 97 Miss. 35, 56, 51 So. 918, 53 So. 454; Wilby v. State, 93 Miss. 767, 770, 47 So. 465; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 46 L.Ed. 679; G. C. & S. F. Ry. Co. v. Ellis, 165 U.S. 150, 41 L.Ed. 66; Bell's Gap R. R. Co. v. Pennsylvania, 134 U.S. 232, 33 L.Ed. 892; 17 R. C. L. 509, 510; Kendrick v. State (Ala.), 39 So. 203; Sallsbury v. Equitable Purchasing Co. (Ky.), 197 S.W. 813; State v. Wilson, 249 Ill. 195; Louisville v. Foley (Ky.), 124 S.W. 315; Little v. Turner, 208 F. 605; Ex parte Stoddard (Nev.), 131 P. 133; Sperry & Hutchinson Co. v. State (Ind.), 122 N.E. 584; Owens v. State (Tex.), 112 S.W. 1075; Moffitt v. Pueblo (Colo.), 133 P. 754; Caswell & Smith v. State (Tex.), 148 S.W. 1159; Ex parte Hutchinson, 137 F. 950; Missouri v. Ashbrook (Mo.), 48 L. R. A. 265; Waters-Pierce Oil Co. v. Hot Springs (Ark.), 109 S.W. 293; Hager v. Walker (Ky.), 15 L. R. A. (N. S.) 195.

The appellant was not doing business in Madison county within the meaning of the act.

City of Pascagoula v. Carter, 136 Miss. 750, 101 So. 687.

In the case at bar the appellant maintained no office in Madison county; it kept no stock of goods there; its agent would merely take requisitions for linens there, receive the linens from the Jackson storeroom and deliver them in Canton and collect the rental.

Wm. H. Maynard, Special Agent, for appellee.

Section 119 (a) of chapter 89 of the Laws of Mississippi of 1932 presents a proper classification and is not unconstitutional.

Kehrer v. Stewart, 197 U.S. 60, 49 L.Ed. 663; State v. Waggoner, 77 Minn. 483, 80 N.W. 633; 37 C. J., Licenses, sec. 33; 17 R. C. L., Licenses, sec. 27; Armour Packing Company v. Lacy, 200 U.S. 226, 50 L.Ed. 451.

Every reasonable presumption should be indulged in favor of the constitutionality of a statute.

Mai v. State, 152 Miss. 225, 119 So. 177; State v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710; Clark v. Kansas City, 176 U.S. 114, 44 L.Ed. 392, Whitney v. California, 274 U.S. 357, 71 L.Ed. 1095; Miller v. Sherrard, 157 Miss. 124, 126 So. 903; Sandford v. Dixie Construction Co., 157 Miss. 626, 128 So. 887; Chassanoil v. City of Greenwood, 148 So. 781; 37 C. J., Licenses, sec. 48.

The burden of proving the unreasonableness or invalidity or unconstitutionality of a statute is placed on the licensee.

37 C. J., Licenses, sec. 36.

The proposition that section 112 of the Mississippi Constitution is not involved in cases of privilege tax is too well settled in Mississippi for there to be any dispute.

Clarksdale Insurance Agency v. Cole, 87 Miss. 637; Barrataria Canning Company v. State, 101 Miss. 890, 58 So. 769; Gulf Refining Co. v. McFarland, 264 U.S. 573; Bradley v. City of Richmond, 110 Va. 52, 227 U.S. 477, 57 L.Ed. 643; Cooley on Taxation (4 Ed.), sec. 1685.

License tax is valid if it applies equally and without discrimination to all persons engaged in the same particular business or avocation.

37 C. J., Licenses, sec. 53; Oliver Iron Co. v. Loyd, 260 U.S. 172, 67 L.Ed. 929; Mackay Telegraph Co. v. Little Rock, 250 U.S. 94, 63 L.Ed. 863, 131. Ark. 306; Commonwealth v. Danziger, 176 Mass. 290, 57 N.E. 461; New York Fire Department v. Stanton, 159 N.Y. 225, 54 N.E. 28; 17 R. C. L., Licenses, sec. 30, p. 509; Holberg v. Town of Macon, 55 Miss. 112; Clarksdale Ins. Agency v. Cole, 87 Miss. 637, 47 So. 228; Pryor v. State, 162 Miss. 602, 139 So. 850; Melton, Tax Collector, v. Rombach, 112 Miss. 737, 73 So. 731; Coco Cola Co. v. Skillman, 91 Miss. 677, 44 So. 985; Alaska Bi-Products Co. v. Smith, 255 U.S. 441, 65 L.Ed. 489; Hazleton v. City of Atlanta, 87 S.E. 1043, 144 Ga. 775; Floyd v. City of Corbin, 140 Ky. 827, 131 S.W. 1009; Quong Wing v. Kerkendall, 56 L.Ed. 350.

The amount of license tax imposed by section 119 (a) of chapter 89 of the Laws of Mississippi of 1932 is not unreasonable.

The reasonableness of the amount of a license tax is primarily a legislative question.

Garbutt v. State, 116 Miss. 424, 77 So. 189; Sec. 1714, 4 Cooley on Taxation (4 Ed.); 37 C. J., Licenses, sec. 44; 17 R. C. L., Licenses, sec. 57.

The constitutionality of a statute cannot be tested by isolated cases.

Hudson v. Stewart, 145 So. 611; Alaska Bi-Products Co. v. Smith, 255 U.S. 644, 65 L.Ed. 489.

Appellant was doing business in Madison county within the meaning of section 119 (a) of chapter 89 of the Mississippi Laws of 1932.

The statute provides that the tax shall be imposed on "each person, whether acting for himself, or as agent for another, engaged in the business of renting or leasing towels, linens, etc."

The words in a statute in the absence of a legislative construction, should be given their usual and ordinary meaning.

Chattanooga Sewer Pipe Co. v. Dumber, 153 Miss. 276, 127 So. 450; Warburton-Beacham Supply Co. v. City of Jackson, 151. Miss. 503, 118 So. 606.

Argued orally by L. C. Hallam, for appellant, and by W. H. Maynard, for appellee.

OPINION

McGowen, J.

The attorney general instituted suit and recovered judgment against the appellant, Independent Linen Service Company, for fifty dollars privilege tax alleged to be due and fifty dollars penalty for failure to pay same within the prescribed time.

The statute under which the privilege tax is alleged to be due and in default is section 119(a) of chapter 89, Laws 1932, and reads as follows:

"Upon each person, whether acting for himself or as agent for another, engaged in the business of renting or leasing towels, linens, pillow cases, sheets, bed spreads, clothing, and/or washable materials or apparel of like character, a state tax as follows:

"In municipalities of classes 1, 2 and 3, one hundred fifty dollars.

"In municipalities of class 4, seventy-five dollars.

"In municipalities of classes 5 and 6, fifty dollars.

"In municipalities of class 7, and elsewhere in the state, twenty-five dollars."

The state tax alleged to be delinquent and sought to be collected was based on the allegation that the appellant was engaged in the business of renting linens in the city of Canton, which is conceded to be a municipality of the fifth class. The record shows that the Independent Linen Service Company had storerooms and offices in the city of Jackson and also in the city of Meridian, and that all taxes due the state had been paid for and on account of these two cities. This linen company had no sort of office or place of business in the city of Canton. It was its custom to have a stock of linens, such as is described in the statute, which it furnished initially to its customers, and when the linens became soiled they were taken up by trucks and carried either to Jackson or Meridian, where the linen company had them laundered and delivered to its customers in Canton and elsewhere, charging for the service a rental slightly in excess of what would be paid by the customers to a laundry. The linen company did not own a laundry, but hired other laundries to perform the laundry service. The driver of the truck who delivered the linens in Canton and all other points collected therefor and solicited other business. All of the soiled linens were brought into the main office either at Meridian or Jackson, laundered, and sent out from those two points. In these two cities the company maintained stocks of linen and staterooms, and employed persons such as are usually employed by any business office.

It appears from the briefs that if the Legislature has clearly levied a tax upon this linen company to be collected wherever any of its agents or employees solicit business, in order to do business within the entire state the company would be required to pay many thousands of dollars in privilege taxes on this one organization. It will be observed that no tax was imposed upon each agent, as is the case with steam laundries, demonstrated by section 119 of chapter 89, Laws 1932.

In Gully, State Tax Collector, v. Gulfport Loan & Brokerage Co. (Miss.), 168 Miss. 449, 151 So. 721, this court said that privilege taxes are construed strictly against the taxing powers and liberally in favor of the citizens. It certainly could not have been the intention of the...