Miller v. Sherrard

• Decision Date: 17 March 1930
• Docket Number: 28515
• Citation: 126 So. 903,157 Miss. 124
• Court: Mississippi Supreme Court
• Parties: MILLER, STATE TAX COLLECTOR, et al. v. SHERRARD et al

126 So. 903

157 Miss. 124

MILLER, STATE TAX COLLECTOR, et al. v. SHERRARD et al

No. 28515

Supreme Court of Mississippi

March 17, 1930

Suggestion of Error Overruled March 31, 1930.

(In Ban.)

1 LICENSES. Statute exempting from privilege tax merchants retailing oil in regular course of business held not to exempt merchants selling oil in same way as filling stations statute exempting from privilege tax merchants retailing oil in regular course of business only exempts merchants retailing oil, gas, or kerosene in same way they sell other goods (Hemingway's Code, 1927, section 7712).

Section 7712 of Hemingway's 1927 Code, imposing privilege tax upon oil depots and containing the provision "provisions of this section shall not apply to merchants who retail oil to their customers in the regular course of business," does not protect a merchant who conducts the selling of oil and gas in the same way that a filling station does, and who has a tank of a capacity of more than five thousand gallons and actually has more than that amount in the tank at times, from the payment of the tax. The statute only exempts merchants who retail oil or gas or kerosene in the regular course of business In the same way that they sell other goods.

2. CONSTITUTIONAL LAW. If reasonably possible, statute should be

construed to avoid rendering statute unconstitutional or seriously endangering its constitutionality.

In construing statutes the court should place a construction on them, if it can be reasonably done without doing violence to the language of the legislature, to avoid rendering them unconstitutional, or seriously endangering their constitutionality.

3. CONSTITUTIONAL LAW. Court will not decide question of constitutionality of statute, where facts involved do not require it.

Where the facts involved in a lawsuit do not require the declaring of an act of the legislature unconstitutional, the court will not decide it.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county, Second district HON. W. A. ALCORN, JR., Judge.

Action by W. J. Miller, State Tax Collector, suing for the use of the State and of Coahoma county, against J. H. Sherrard and another. Judgment for defendants, and plaintiff appeals. Reversed and rendered.

Judgment reversed.

Greek P. Rice, Jr., of Clarksdale, for appellant.

Hemingway's Code 1927, section 7712, exempting from privilege tax merchants retailing oil in regular course of business does not exempt merchants retailing oil in same way as filling stations, it only exempts merchants selling oil in the same way they sell other goods.

A law is unconstitutional which is discriminating or denies the equal protection of the law.

37 C. J., pp. 186, 190, 192, 193, 198 and 200; 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 Am. St. Rep. 733; State v. Lawrence, 105 Miss. 58, 61 So. 975; State v. Allen, 83 Fla. 214, 91 So. 104, 26 A.L.R. 735; Roach v. Ephern, 82 Fla. 523, 90 So. 609; Fiscal Court v. F. & A. Cox Co., 132 Ky. 738, 117 S.W. 296, 21 L.R.A. (N.S.) 82; Kendrick v. State, 142 Ala. 43, 39 So. 203; Salisbury v. Equitable Purchasing Co., 177 Ky. 348, 197 S.W. 813, L.R.A. 1918A, 1114; People v. Wilson, 249 Ill. 195, 94 N.E. 141, 35 L.R.A. (N.S.) 1074; Louisville v. Pooley, 136 Ky. 286, 124 S.W. 315, 25 L.R.A. (N.S.) 582; Ex parte Stoddard, 35 Nev. 504, 131 P. 133; Sperry & Hutchinson Co. v. State, 188 Ind. 173, 122 N.E. 584; Owens v. State, 53 Tex. Cr. R. 105, 112 S.W. 1075, 126 Am. St. Rep. 772; Caswell & Smith v. State (Tex. Civ. App.), 148 S.W. 1159; Ex parte Hutchinson C. C., 137 F. 949, 950; Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 509, 109 S.W. 293, 16 L.R.A. (N.S.) 1035; Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 225, 41 L.Ed. 666; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679; Bell's Gap R. R. Co. v. Pennsylvania, 134 U.S. 232, 10 S.Ct. 533, 33 L.Ed. 892.

Brewer & Brewer, of Clarksdale, for appellees.

Section 7712 of Hemingway's Code of 1927, among other things provides:

The provisions of this section shall not apply to merchants who retail oil to their customers in the regular course of business.

Appellant cannot insist that the exception to the statute is unconstitutional in this court for the reason that no constitutional question was raised in the court below.

Alabama Brokerage Co. v. Boston, 93 So. 289; So. Railway Co. v. Jackson, 49 So. 738.

It is the general rule that a statute will, if possible, be so construed as to render it valid.

State v. Louisville & Nashville Ry. Co., 53 So. 454; Natchez Ry. Co. v. Crawford, 55 So. 596; 99 Miss. 697; Richards v. City Lumber Co., 57 So. 977, 101 Miss. 678; Eastland Lumber Co. v. Pierce, 64 So. 461, 106 Miss. 672; Darnell v. Johnston, 68 So. 780, 105 Miss. 570; Thompson v. Box, 112 So. 597, 147 Miss. 1; Johnston v. Reeves Co., 72 So. 925, 112 Miss. 227; L. N. Dantzler Lumber Co. v. State, 53 So. 1, 97 Miss. 355; Smith County v. Eastman-Gardiner Co., 53 So. 7; Hinds County v. Johnson, 98 So. 95, 133 Miss. 591; State v. Henry, 40 So. 152, 87 Miss. 125; Hart v. State, 39 So. 523, 87 Miss. 171; Board of Trustees, University of Miss., v. Waugh, 62 So. 827, 105 Miss. 623.

OPINION

Ethridge, J.

Appellant, suing for the use of the state and of Coahoma county, brought this action against appellees under chapter 118 of the Laws of 1926, section 7712 of Hemingway's Code of 1927, to recover the privilege tax provided by that statute for conducting the business of an oil depot. The charging part of the declaration is in this language:

"That the said defendants operated and controlled an oil depot with a capacity and volume of business of over five thousand gallons and less than twenty thousand gallons for the year beginning June, 1928, to June, 1929; that the privilege license fee and tax duly and lawfully assessed and levied against said business was in the amount of fifty dollars and by reason of the operation and conduct of the said business as aforesaid and the privilege tax due and lawfully assessed and levied by reason thereof, the said defendants became liable to the plaintiff herein in the amount aforesaid, but the said privilege license fee and tax, although frequently demanded of the said defendants, remains due and unpaid; that by reason of said non-payment of said license fee and tax and the refusal to pay said privilege license fee and tax as aforesaid, there accrued by law a damage for nonpayment of said license and tax in the sum of fifty dollars, as prescribed for by law and that said damage is now demanded of said defendants and that the total sum due and payable for the period aforesaid is in the sum of one hundred dollars, for which although frequently demanded, the same remains due and unpaid.

"Plaintiff further charges that he is entitled to interest at six per cent per annum from the time the said taxes accrued until paid."

Appellees pleaded the general issue. There was a trial on agreed facts, resulting in a judgment in favor of appellees, and from that judgment appellant prosecutes this appeal. The agreed facts are as follows:

"That the defendants are engaged in the business of merchants in the village of Sherrard in Coahoma County, Mississippi, trading under the firm name of J. H. Sherrard & Son; that as such merchants they do a general mercantile business selling dry goods, shoes, hardware, groceries and other commodities usually carried in general mercantile stores; that among other things the defendants retail gasoline to their customers in the regular course of their mercantile business, and that they have one gasoline pump in front of their store. That said defendants have a storage tank for gasoline with a capacity of more than five thousand gallons and in this storage tank they place or cause to be placed gasoline from time to time in quantities exceeding five thousand gallons.

"It is further agreed that the only use made by the said defendants of the said gasoline purchased by them is to transfer it from the storage tank aforesaid to the gasoline pump in front of said store or place of business, which said gasoline is transferred by means of a pipe connecting the storage tank, which holds in excess of five thousand gallons, to the tank directly used in connection with the gasoline pump.

"That the gasoline is sold in the regular course of business by said defendants to their customers, and that no gasoline is sold by defendants except to the retail trade in the regular course of business from the pump in front of the store aforesaid, and that the defendants do not directly deliver gasoline to anyone from said storage tank.

"And it is further agreed that the defendants make no distribution of any kind of gasoline from said storage tank except the transfer as aforesaid of the gasoline from the storage tank to the gasoline pump.

"It is further agreed that the said defendants have paid all necessary privilege taxes for the operation of said gasoline pump but they have not paid any special privilege tax on the storage tank aforesaid with a capacity of more than five thousand gallons.

"It is contended by the plaintiff that defendants are liable under Section 7712 of Hemingway's Code of 1927, which section has to do with oil depots, but defendants deny that they are liable for any such tax and deny that they operate an oil depot, either directly or indirectly."

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