J. H. Allison & Co. v. Killough

• Decision Date: 19 December 1927
• Citation: 300 S.W. 5
• Parties: J. H. ALLISON & CO. v. KILLOUGH et al.
• Court: Tennessee Supreme Court

300 S.W. 5

J. H. ALLISON & CO. v. KILLOUGH et al.

Supreme Court of Tennessee.

December 19, 1927.

Appeal from Chancery Court, Hamilton County; W. B. Garvin, Chancellor.

Suit by J. H. Allison & Co. against T. W. Killough and others. From the decree, complainant appeals. Reversed and rendered.

J. H. McLean and Sizer, Chambliss & Sizer, all of Chattanooga, for appellant.

T. W. Stanfield and Will F. Chamlee, both of Chattanooga, for appellees.

SWIGGART, J.

J. H. Allison & Co., Incorporated, the appellant here, filed its bill in the chancery court of Hamilton county to enjoin the issuance and execution of a distress warrant against it, whereby the county court clerk was about to collect from it the privilege tax levied by the state on persons, firms, and corporations engaged in the business of wholesale dealers in fresh meats or poultry, and a similar tax levied by Hamilton county. The tax claimed was that levied by Acts 1925, c. 134, the Revenue Act for that year.

J. H. Allison & Co. operate a business commonly known as a packing house. Its business is of the kind and has the essential characteristics of the business described in the opinion of this court in Neuhoff Packing Co. v. Sharpe, 146 Tenn. 293, 240 S. W. 1101. It was therefore engaged in the business of a manufacturer, and was not, therefore, a "dealer," as that term is used generally in the Revenue Act. Neuhoff Packing Co. v. Sharpe, supra; Chattanooga Plow Co. v. Hays, 125 Tenn. 148, 140 S. W. 1068; General Refining & Producing Co. v. Davidson County, 139 Tenn. 401, 201 S. W. 737.

As stated in the concluding paragraph of the case last cited, we do not consider the power of the Legislature to levy a privilege tax on the business of a manufacturer, such as a packing house, but, following the cases cited, we hold that the Legislature has not levied such a tax by language applying only to dealers.

But in the present cause the chancellor found that, in addition to the appellant's business as a manufacturer of meat products, it happened that, on an average of about once a month, appellant received orders for goods manufactured by it which it could not supply from its own manufactured stock; that on such occasions appellant purchased such goods from other packers or dealers at a price less than its own price, and furnished the goods so purchased to its own customers at a profit. While the chancellor held that this business was small as compared with appellant's annual gross sales of...