Johnston v. Long Furniture Co.

• Decision Date: 05 March 1917
• Docket Number: 18741
• Citation: 113 Miss. 373,74 So. 283
• Court: Mississippi Supreme Court
• Parties: JOHNSON, STATE REVENUE AGENT, v. LONG FURNITURE CO

74 So. 283

113 Miss. 373

JOHNSON, STATE REVENUE AGENT, v. LONG FURNITURE CO

No. 18741

Supreme Court of Mississippi

March 5, 1917

Division B

APPEAL from the circuit court of Copiah county, HON. J. B. HOLDEN Judge.

Suit by J. C. Johnson, state revenue agent against the Long Furniture Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Case reversed.

M. S McNeil and Stokes V. Robertson, for appellant.

The questions involved in this case were determined by this court in an opinion rendered by COOK, P. J., Division B, recently in a case, styled W. Ed. Smith, Tax Collector, v. C. B Perkins. Our side of the case cannot be more forcibly argued than by adopting the opinion of the court in the said case and the brief of the district attorney and attorney-general who represented the case for the state.

We therefore adopt as appellant's argument in this case the said opinion of the supreme court and the briefs on file in said case and respectfully submit that the judgment of the lower court should be reversed and judgement entered here for appellant.

H. J Wilson, for appellee.

Statutes levying privilege tax are an abridgment upon the rights of citizens and this court has always strictly construed them and has refrained always heretofore from reading into the statutes that which does not clearly appear from the language of the statute itself.

On this subject; in the case of Abbott v. State, 106 Miss. 340, Judge COOK says: "It is contended that it was the intention of the legislature to do this very thing, but we must look to the law itself for the legislative intent, and it is not within the province of the court to write the law that power rests with the legislative department." State v. Traylor, 100 Miss. 563.

We maintain the statute here under consideration is plain and unambiguous; is expressed in simple, clear terms, free from doubt. In fact, it is expressed so clearly that the laity may read and understand, as well as the trained lawyer.

We maintain there can be no doubt as to the meaning but if there is doubt, it should be solved in favor of the person sought to be taxed. It is a well established rule of construction in this state that statutes imposing a privilege tax are penal and must be strictly construed.

In the case of Bell v. Kerr, 80 Miss. 179, CALHOUN, J., speaking for the court with reference to the construction of a statute imposing a privilege tax, says: "This statute is penal and must have strict construction." V. & M. R. R. Co. v. State, 62 Miss. 105; Alfred Wilby v. State of Mississippi, 93 Miss. 767.

We maintain therefore that the opinion of the court in the case of Smith v. Perkins, is in irreconcilable conflict with both of the principles above stated. The court invades a statute expressed in the clearest of terms, in words that are not ambiguous and imposed upon it the strictest construction imposing a high and severe penalty upon the person proposed to be taxed.

We cannot believe that this court intends to reverse the rules of construction above quoted, and for that reason, as stated in the outset, we have some hopes that upon further reflection this court will right itself.

This court does not hold that the clause exempting merchants who deal in coffins and pay privilege tax on their stock, including coffins, is unconstitutional, because it creates a favored class. We maintain that the legislature did intend to create two classes of dealers in coffins, but the classification is based upon a substantial and not a fictitious or artificial basis; the purpose was to prevent the imposition of a double privilege tax. The merchant who pays privilege tax upon his stock, including the coffins, who is also required to pay a privilege tax as a dealer in coffins, is subjected to a double tax. The burden is made so great as to deter and prevent many individuals from dealing in coffins at all, thereby restricting and limiting the number of persons or concerns dealing in this commodity, and tending to create a monopoly in the business.

We do not presume that any one would clamor for a larger sale of coffins, but, at the same time, none of us would like to see a corner on the coffin market, and it is easy to see that the legislature, in its wisdom, was undertaking to make it possible for a larger number of merchants to carry coffins in their stock in order that the very abuses referred to by the court might be in a measure eliminated.

On the other hand, if this court should hold that the...