L. H. Conard Furniture Co. v. Mississippi State Tax Commission

• Decision Date: 20 April 1931
• Docket Number: 29386
• Court: Mississippi Supreme Court
• Parties: L. H. CONARD FURNITURE CO. v. MISSISSIPPI STATE TAX COMMISSION

133 So. 652

160 Miss. 185

L. H. CONARD FURNITURE CO. v. MISSISSIPPI STATE TAX COMMISSION

No. 29386

Supreme Court of Mississippi

April 20, 1931

Division B

1 STATUTES. Contemporaneous construction of statute by governmental department charged, with its execution, while not controlling, is entitled to great weight.

Such contemporaneous construction of statute by department of government charged with its execution should not be disregarded or overturned except for most convincing reasons and unless it be clear that such construction is erroneous.

2 STATUTES.

Construction of privilege tax statute by state tax commission under express statutory authority should be persuasive with court (Laws 1930, chapter 238, section 2 (3, 5, 6).

3. HAWKERS AND PEDKLEBS. Transient vendor of merchandise to obtain statewide license held required to pay three times amount of privilege tax for each motor vehicle used, by agents or employees hawking or peddling merchandise (Laws 1930, chapter 88, section 205).

Privilege Tax Law, section 205 (Laws 1930, chapter 88), imposes privilege tax on transient vendors of merchandise making deliveries with motor vehicle, and provides that a "state-wide license may be procured by paying three times the license levied herein." Construction placed upon such statute pursuant to Laws 1930, chapter 238, section 2 (3, 5, 6), by state tax commission was to effect that payment of three times tax for statewide license should only authorize the use of one of the methods of conveyance provided in the statute. Transient vendor of merchandise at time of application for state-wide license owned four automobiles which it operated in its business. It contended that, on payment of three times sum of privilege tax stated, it was entitled to state-wide license to peddle its goods throughout state in motor vehicles without limit as to number.

4. STATUTES.

All taxing statutes are to be construed most strongly against the taxing power.

5. STATUTES.

Court, in construing statute of doubtful meaning, should consider consequences of any particular construction, whether good or bad.

HON. W. H. POTTER, Judge.

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

Mandamus proceeding by L. H. Conard, trading as the L. H. Conard Furniture Company, against the Mississippi State Tax Commission. From a judgment dismissing the petition, petitioner appeals. Affirmed.

Affirmed.

Thos. L. Bailey, of Meridian, and Watkins, Watkins & Eager, of Jackson, for appellant.

Section 1, chapter 88, Laws of 1930, defines "state wide license."

The tax imposed by section 205, chapter 88, Laws of 1930, is upon the business of a transient vendor of merchandise and not upon the individual salesman, from which it necessarily follows that the payment of the tax by the principal authorizes the exercise of the privilege in any of the counties of the State of Mississippi.

State ex rel. Collins, Attorney General, v. Grenada Cotton Compress Co., 55 So. 137, 123 Miss. 191; Sperry & Hutchinson Co. v. Sheriff, 86 So. 455, 123 Miss. 674; Moore, Sheriff, v. Standard Oil Company, 117 So. 370, 151 Miss. 100; Ellzey, Tax Collector v. Smith, 132 So. 92.

Laws enforcing privilege taxes are liberally construed in favor of the citizen.

Planters Lumber Co. v. Wells, 112 So. 9, 127 Miss. 79.

Thos. L. Bailey, of Meridian, for appellant.

The case of Temple v. Sumner, 51 Miss. 13, is distinguishable from the case at bar in two respects. First, the expression "whether principal or agent" is not found in the statute considered by the court in that case. Second, the statute in that case does no contain the legislative definitions set forth in section 1, of the Privilege Tax Law of 1930.

Walter A. Scott, Jr., Assistant Attorney-General, for the state.

Chapter 238 of the Laws of 1930, which vests in the State Tax Commission the necessary power and authority to enforce the Privilege Tax Laws of 1930, and the Revenue Act of 1930, and other Revenue Laws of the state, provides under section 2; sub-section 5 thereof, as follows:

Instructions for enforcement of law. To promulgate and have printed for distribution to revenue officers, and to taxpayer when requested, instructions for the enforcement of the Privilege Tax Law of 1930 and the Revenue Act of 1930, and rules and regulations governing the application of the said laws: and shall promptly advise all revenue officers of any decisions of the courts with reference to the said laws.

Sperry v. Harbison, 123 Miss. 674, 117 So. 370.

The proper construction of section 205 of chapter 88, Laws of 1930, is that everybody selling merchandise away from a licensed place of business and delivering it at the time of the sale is liable for the taxes levied by said section 205; that each agent shall pay the tax; that a privilege tax license cannot be used by more than one person.

Temple v. Sumner, 51 Miss. 13.

Butler & Snow, of Jackson, Amicus curiae.

The tax imposed by section 205, chapter 88, Laws of 1930, is upon each place of business; that with the transient vendor each motor vehicle represents and is a separate place of business just the same as the store is a separate place of business, and being thus a separate place of business, a separate license is required for each separate motor vehicle.

Argued orally by Thos. L. Bailey, for appellant, and by George Butler, for appellee.

OPINION

Anderson, J.

The appellant, L. H. Conard, trading as L. H. Conard Furniture Company, having its principal place of business at Meridian, in this state, and engaged in selling furniture and household furnishings, filed its petition for mandamus against appellee, the state tax commission, to force the latter to issue to appellant a statewide license authorizing it to peddle its goods over the entire state by means of as many motor vehicles and agents operating the same as appellant might desire.

Appellee demurred to the petition, which demurrer was by the court sustained, and, appellant declining to plead further, the petition for mandamus was dismissed. From that judgment appellant prosecutes this appeal.

Perhaps no better statement of appellant's case could be made than to set out the material parts of its petition, which follows, leaving off the exhibit thereto, the substance of which exhibit will be hereinafter stated:

"That petitioner is a citizen of Meridian, Lauderdale county, state of Mississippi, and is the owner of a retail furniture business operated in said city, county and state, and that he has conducted and operated the said business in said city for a period of nine years.

"That petitioner has paid annually unto the state of Mississippi the privilege taxes prescribed by law for the conduct of said business.

"That said petitioner, in the conduct of his business, sells furniture and house furnishings and merchandise usually carried in a retail store to the public for cash and on credit on what is commonly known as the installment plan retaining the title to said furniture and merchandise sold in himself until the purchaser has paid the price therefor; that it is necessary for petitioner to employ collectors and to use vehicles in his business, both for the purpose of delivering furniture and household furnishings sold by him to the purchaser and for the purpose of repossessing and returning to his place of business any furniture or household furnishings purchased from him, the purchase price of which the purchaser has failed and refused to pay; that as an incident to the operation of said business, the petitioner has lately sought to reduce his overhead and to increase the volume of business conducted by him at his place of business aforesaid in the city of Meridian, Mississippi, by permitting collectors employed by him to carry certain household furnishings such as carpets, pillows, bed spreads, and other articles carried by him in his store out on their routes and to sell and to offer for sale said articles from the cars of the petitioner and as the agents and representatives of petitioner which said goods are usually carried in general merchandise stores--Delivery of said goods is made at the time of making the sales.

"That at the present time petitioner owns four automobiles, one of which operates in the State of Alabama; two others of the number he uses in connection with his said business in the City of Meridian, principally for the collection of accounts for merchandise sold in the store. One other is used in Newton and Neshoba counties and from the same the agents of petitioner sell and offer for sale household furnishings, furniture and merchandise carried by him and taken from the stock of merchandise, household goods, and furniture carried by him in his place of business aforesaid.

"That prior to the enactment by the legislature of the state of Mississippi of the 1930 Privilege Tax Law, petitioner purchased a peddler's license for the county of Neshoba, which license expires on January 1, 1931.

"That prior to July 1, 1930, petitioner made application to the State Tax Commission for a state-wide privilege license to engage in the business of transient vendor of merchandise, and the State Tax Commission, acting by and through its duly constituted agent, issued to the petitioner state-wide privilege license number 151 in which said State Tax Commission undertook to limit and restrict the business of the said petitioner to the sale of merchandise by agent with motor vehicle.

"That section 205 of the Privilege Tax Code of 1930 places no such restriction on petitioner and that the State Tax Commissioner, under the law, was obligated to issue a state-wide license to petitioner, authorizing him to conduct the business of transient vendor...