Mathison v. Brister

• Decision Date: 16 January 1933
• Docket Number: 30422
• Court: Mississippi Supreme Court
• Parties: MATHISON, SHERIFF, v. BRISTER

145 So. 358

166 Miss. 67

MATHISON, SHERIFF, v. BRISTER

No. 30422

Supreme Court of Mississippi

January 16, 1933

Division B

Suggestion Of Error Overruled February 27, 1933.

APPEAL from chancery court of Jefferson Davis county, HON. T. PRICE DALE, Chancellor.

Suit by Leon Brister against W. H. Mathison, Sheriff of Jefferson Davis county. From a decree granting an injunction, defendant appeals. Reversed and remanded.

Reversed and remanded.

W. W. Pierce, Assistant Attorney-General, for appellant.

Section 216, chapter 89, of the General Laws of Mississippi, 1932, is applicable to the appellee so as to make him liable for the tax levied thereby, because the legislature has the right to prescribe by statute who are transient vendors or dealers.

29 C J., p. 223; Ex parte Wilson, 19 D. C. 341, 12 L.R.A. 624.

It is clear that an agent may be a peddler while selling the goods of his principal even if he is compensated by salary rather than by commission on his sales.

21 R. C. L., p. 203, sec. 21.

The law does apply to complainant even though the corporation or person whose products he sells or delivers, has already paid the privilege tax for the operation of a bulk sales station and the taxing of complainant would not be double taxation.

Clarksdale Insurance Agency v. Cole, 87 Miss. 637; Mitchell v. City of Meridian, 67 Miss. 644.

Like the equality in taxation ordained by state constitutions, the principle of equality expressed in the fourteenth amendment does not operate to restrict the states in the exercise of their police powers; and license taxes on occupations affecting the public order, health or safety may be imposed under that power without Federal restraint in this respect.

Gray's Limitations of Taxing Power, secs. 1410, 1414; State v. Harrington, 69 Vermont, 622, 35 A. 515.

A statute requiring hawkers or peddlers to obtain a license for which a fee must be paid is a valid exercise of the police power.

DeWitt v. State, 155 Wis. 249.

The equality and uniformity clause of the Constitution, both State and Federal, does not apply to privilege taxes or excise taxes.

Clarksdale Insurance Agency v. Cole, 87 Miss. 637.

The imposition of this tax may be both for revenue purposes, and for the purpose of discouraging the sale of the articles mentioned in the section; but this is no reason for any interference of the court with the legislative discretion, and in so acting the legislature violated no, section of the Constitution of the state, or of the United States. It may be that this tax is both a privilege tax and intended as a police regulation, as well as a tax for revenue.

Coca-Cola Co. v. Skillman, 91 Miss. 677.

The Legislature may classify subjects of taxation at its discretion and if all of the classes are taxed alike, there is no violation of the equality and uniformity required by the Constitution.

Coca-Cola Co. v. Skillman, 91 Miss. 677; Bank v. Worrel, 67 Miss. 47 Holberg v. The Town of Macon, 55 Miss. 112; Stull v. De Mattos, 23 Wash. 71, 51 L.R.A. 892; Postal Telegraph & Cable Company v. Robertson, 116 Miss. 204; State v. Widman, 112 Miss. 1; 72 So. 782; Israels v. State, 127 So. 279; Pryor v. State, 139 So. 850.

Hannah & Simrall, of Hattiesburg, for appellee.

We recognize the right of the Legislature to levy privilege taxes, and to classify businesses and callings for the purpose of levying privilege taxes. There are two fundamental limitations, however, that the legislature cannot and must not transgress. The first is that the classification must be reasonable and there must be uniformity among members of the same class; and the second is, that the amount of tax that is levied must not amount to a prohibition of a useful occupation.

It was not the intention of the Legislature to impose so large an occupation tax upon labor, on the right which a man has by his brawn and muscle, without any other capital being invested, to earn his daily bread by the sweat of his own brow.

Wilky v. State, 93 Miss. 767, 47 So. 465.

Laws of this nature approximate an abridgment of the liberty of the citizen guaranteed to, him by the fourteenth amendment of the Constitution of the United States, and should receive the strictest construction. Liberty, in its broad sense, must consist in the right to follow any of the ordinary callings of life without being trammeled.

Wilby v. State, 93 Miss. 767, 47 So. 465.

It is undoubted that the power of the states to make classification of persons and property for the purposes of taxation, as well as for other purposes, is broad; but it is equally true that the mere fact of classification is not sufficient to relieve a statute from the operation of the equality clause. The classification must be based on some reasonable ground, and some real difference which bears a just and proper relation to the object sought to be accomplished. "Mere arbitrary selection can never be justified by calling it classification," and discriminations against persons and classes of an unusual character are obnoxious to the Constitution.

Adams v. Standard Oil Company, 97 Miss. 879, 53 So. 692; Chicago & St. Paul Ry. Co. v. Westby, 178 F. 619, 102 C. C. A. 65; Southern Ry. Co. v. Greene, 216 U.S. 400, 30 S.Ct. 287.

The classification is not to be made, except upon the basis of some difference between the business of those favored and the business of those not favored a substantial difference warranting the classification.

Ballard v. Oil Co., 81 Miss. 507, 34 So. 533, 62 L.R.A. 407, 95 Am. St. 476.

But where a license tax is imposed under the police power as a means of regulation, it must not be imposed upon such terms and conditions as to operate as the virtual prohibition of a useful and Legitimate occupation of business; and this rule has been held to apply, regardless of whether the license tax is levied under the police or the taxing powers.

37 C. J., p. 187, sec. 37.

This court will not permit the Legislature to prohibit or destroy a useful business, and in considering any Act will look beyond the proclaimed purpose of the Legislature.

Lockner v. New York, 198 U.S. 45, 49 L.Ed. 937; Riley, State Auditor, v. Ayer Lord, 147 Miss. 105, 113 So. 214.

The principle that the state has a broad discretion in classification in the exercise of its power of regulation is constantly recognized by the decisions of this court. But the constitutional guaranty of equal protection of the laws is interposed against discriminations that are entirely arbitrary. In determining what is within the range of discretion and what is arbitrary, regard must be had to the particular subject of the state's action.

Smith v. Cahoon, 75 L.Ed. 1264.

OPINION

Ethridge, P. J.

The appellee, Leon Brister, a resident citizen of Jefferson Davis county, Miss., is the driver of a gasoline truck, and the appellant, W. H. Mathison, is the sheriff and tax collector of Jefferson Davis county. Appellee is employed on a monthly basis to drive a gasoline truck for one P. C. Westfall, and starts out each morning from Prentiss, Miss., to call at various places to ascertain the quantity of gasoline that is desired by such places, and to draw the gasoline from a tank on his truck, and deliver same to the dealers, the filling stations. For his services he is paid seventy-five dollars a month. The performance of his duties required him to go into the counties of Lawrence, Copiah, Simpson, Covington and Lamar, in addition to Jefferson Davis county. The bill further shows that the business in which the appellee is engaged is an honorable, worthy, and useful business or occupation, and not one that is looked upon with disfavor in the law, or one that requires any particular regulation. It further charges that the appellee is not, in reality, a transient vendor of merchandise, in that he does not own any part or parcel of the merchandise which he transports and delivers, but that he is engaged solely and only for the purpose of driving a motor truck by his, employer, Westfall, and goes from one gasoline station to another: the owners of said filling stations being obligated and bound to handle the gasoline sold and delivered by the employer of said appellee. The bill not only attempts to show that the appellee is not a transient vendor or dealer within the purview of the said act, but goes into detail to point out that if the said appellee falls within the purview of the said act, the said act is arbitrary, discriminatory, unconstitutional, and null and void, because it violates not only the fundamental and inherent rights of the appellee, but is also violative of the Constitutions of the state of Mississippi, and of the United States. The bill further charges that said act in unconstitutional and void, because it is destructive of the right of the appellee to perform his daily work and earn his daily bread because of the unreasonableness of the amount of said tax; and that if he is compelled to pay the tax in said several counties, he will also have to pay municipal taxes in a number of cities, and that it will be impossible for him to so do and pursue his occupation.

The state demurred to the bill of complaint which was overruled, and the state declining to plead further, a final order was entered granting an injunction against the Sheriff from collecting a privilege tax from Brister.

The act involves chapter 89. Laws of 1932, being part of the privilege tax chapter, as follows: "Upon each natural person, doing business as a transient vendor, or dealer, as defined in this section, and upon which a privilege not specifically imposed by another section of this act, a state tax, for each county, according to the following schedules . . (f) Upon each transient vendor, or dealer of gasoline,...