Planters' Lumber Co. v. Wells

• Decision Date: 14 March 1927
• Docket Number: 26329
• Citation: 147 Miss. 279,112 So. 9
• Parties: PLANTERS' LUMBER CO. v. WELLS, SHERIFF AND TAX COLLECTOR. [*] SAME v. JOHNSON, CITY TAX COLLECTOR
• Court: Mississippi Supreme Court

112 So. 9

147 Miss. 279

PLANTERS' LUMBER CO. v. WELLS, SHERIFF AND TAX COLLECTOR. ^[*]

SAME v. JOHNSON, CITY TAX COLLECTOR

No. 26329

Supreme Court of Mississippi

March 14, 1927

Division B

Suggestion of Error Overruled April 11, 1927.

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

Separate actions by W. S. Wells, sheriff and tax collector, and by A J. Johnson, city tax collector of the city of Jackson against the Planters' Lumber Company, which actions were consolidated and tried together. Judgment for plaintiffs, and defendant appeals. Reversed and judgment rendered.

Reversed.

George Butler, for appellant.

I. Under the facts alleged in appellant's second plea and admitted by the demurrers thereto, is the appellant liable for a privilege tax for conducting a store in addition to the privilege tax for conducting a lumber yard?

At the October term, 1885, the supreme court of this state in Folkes v. State, 63 Miss. 81, held that the word store as used in section 585, Code of 1880, which levied a privilege tax on "each store" was intended to designate any place where goods are deposited and sold by one engaged in buying and selling such goods, whether in a house or not. The Code of 1880 did not levy a privilege tax on "lumber yards" and in the Folkes case it was held that a lumber yard on which lumber was stored and sold was a store. In Pitt v. Vicksburg, 72 Miss. 181, a store was also defined. In Craig v. Patterson, 74 Miss. 881, the Pitt case was reaffirmed. It is, therefore, established that if there was no statute imposing a privilege tax upon lumber yards as such and by that name, under the authorities above cited, they would be liable to pay a privilege tax as a store.

It is perfectly apparent that various businesses would be taxable as a store under the Folkes, Pitt and Craig cases if they had not been specially dealt with by the legislature and placed in a separate and distinct class. The legislature has seen fit to take dealers in certain classes of merchandise out of the "store" class and place them in a separate and distinct class, making the tax higher or lower than the tax on a store, depending upon the nature and character of the business.

It is significant that section 3367, Code of 1892, the first statute imposing a tax upon lumber yards as such, and section 3837, Code of 1906, impose the tax on "each lumber yard or dealer." By section 8, chapter 73, Laws of 1908, and section 2, chapter 74, Laws of 1908, the legislature fixed a tax on "lumber yards" and a separate and distinct tax on "lumber dealers or brokers." Up to this time a lumber dealer, though not conducting a lumber yard, paid the same tax as a lumber dealer selling lumber and other commodities through a lumber yard. The legislature manifestly recognized that a dealer who sold no commodities other than lumber should be permitted to sell a greater quantity of lumber for the same tax than that paid by a dealer selling lumber and other commodities through a lumber yard, the separation was then made, the lumber yard dealer and the other lumber dealer placed in a different class, and the tax graduated and fixed accordingly.

The fact that appellant deals in articles other than lumber does not affect the situation. The legislature had this well-known custom of business in mind when it levied a privilege tax upon lumber yards. And if the legislature had intended that lumber yards should pay one tax as a lumber yard and another as a store, would it not have said so?

II. Are the act and ordinances imposing a privilege tax on lumber yards constitutional if construed to limit licensed lumber yards to the sale of lumber, and is this an unconstitutional discrimination?

We grant that the legislature can classify, we say that they have classified, the amount of privilege upon store, not as stores, but as wharf boats, trading boats, lumber yards, warehouses, meat markets, cigar stands, etc. They have classified lumber dealers as those dealing at yards and those dealing without placing the lumber on yards. They have placed a higher tax proportionately on lumber yards than they have on lumber dealers, because the legislature knew that lumber yards sold other building materials than lumber, while lumber dealers sold only lumber. This court will not impute to the legislature an intent to discriminate. Smith v. Perkins, 112 Miss. 870; Johnson v. Long Furniture Co., 113 Miss. 373; Hyland v. Sharp, 88 Miss. 567; Adams, St. Rev. Agt., v. Standard Oil Co., 97 Miss. 879; Ballard v. Oil Co., 81 Miss. 507; Railroad v. Adams, 90 Miss. 559; Vicksburg v. Mullins, 106 Miss. 217; Adams, St. Rev. Agt., v. Miss. Lbr. Co., 84 Miss. 23; Toombs v. Sharkey, 106 So. 273.

We respectfully submit that if the act is given the construction which appellee's counsel contends for, it creates an arbitrary discrimination and runs counter to the equal protection clause of the state's constitution.

If two constructions of a statute are admissible and to construct it one way would present grave constitutional questions, the court will adopt such construction as will eliminate the question of the constitutionality of the statute. N. O., etc., R. R. Co. v. State, 110 Miss. 290; Robinson v. State, 108 So. 903; Staple Co-op. Ass'n v. Hemphill, 107 So. 24.

III. Has the city the power to impose a one hundred per cent penalty? The statutes may be searched in vain for any legislative authority for a municipal corporation to impose a one hundred per cent penalty for the failure to pay a privilege tax when due. It will not do to say that the municipality has the implied power to impose a one hundred per cent penalty by reason of the express grant of power to impose and collect the tax. 19 R. C. L. 976; Leonard v. Canton, 35 Miss. 189; Sykes v. Columbus, 55 Miss. 115; Crittendon v. Booneville, 92 Miss. 277, 45 So. 723; Wise v. Yazoo City, 96 Miss. 507, 51 So. 433; Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890; Steinroth v. Jackson, 99 Miss. 354, 54 So. 955; Jackson v. Newman, 59 Miss. 385; Pitt v. Vicksburg, 72 Miss. 181; Biloxi v. Bories, 78 Miss. 654; Harris v. Water Valley, 78 Miss. 659; Johnson v. Hartford Fire Ins. Co., 109 Miss. 808; Zemurray v. Boulden, 87 Miss. 583.

The plea which goes to that part of the city's declaration attempting to collect a penalty is good. 16 Ency. Pl. & Pr. 574; Williams v. Harris, 2 How. (Miss.) 627; and Harrison v. Balfour, 5 S. & M. 304.

IV. Did the enactment of the several ordinances set forth in and exhibited with the fourth plea in the suit brought by the city tax collector operate as a repeal of the prior ordinance and thereby preclude the city from claiming the tax and penalty for the period of time prior to September 1, 1923? See section 3406, Code of 1906 (section 5935, Hemingway's Code).

The above sections are similar in import to section 61 of the Constitution of Mississippi and go further in that it is expressly provided that when such ordinance is amended or revised "the original shall thereby be repealed;" whereas, under section 61, the repeal takes place by implication. Nations v. Lovejoy, 80 Miss. 401.

The court is committed to the doctrine that the right to collect the tax was abrogated by the amendment and re-enactment of these several ordinances where they contained no saving clause. Bradstreet v. Jackson, 81 Miss. 233; Crowe v. Cartledge, 99 Miss. 281.

If, therefore, the several ordinances undertaking to impose the tax repeal upon the prior ordinance, as stated in section 3406, Code of 1906, it is clear that as to the taxes and penalties mentioned in the pleas, the plea is good, and the demurrer should have been overruled.

J. H. Sumrall, for appellee.

I. The question here is whether or not it was the intention of the legislature, when imposing a privilege tax on "lumber yards" to impliedly permit the handling of any other commodities which might be dealt in by lumber yards for the convenience of their patrons, regardless of the classification of such articles of material or the amount thereof.

Counsel for appellant calls the court's attention to Folkes v. State, 63 Miss. 81; Pitt v. Vicksburg, 72 Miss. 181; and Craig v. Patterson, 74 Miss. 881, relied on by the appellees to demonstrate the fact that it is the long-established policy of this state to class as a "store" all establishments engaged in the business of selling merchandise, or any article sold, until some specific class of merchandise is singled out by the legislature as being entitled to pay a special privilege tax for the sale thereof.

The cases referred to are simple authority, in my opinion, for the contention that all articles of merchandise or all objects of sale which are not specifically classified by the legislature and a special tax imposed for the sale thereof come clearly within the general privilege tax levied on a "store" for the sale of such articles. To my mind, the effect of the passage of a statute specifically imposing a privilege tax upon lumber yards, has the effect of separating the business of selling lumber kept in stock for sale, from the general class of merchandise which comes under the general term of "store."

The language of the statute in force during the several years included in the demand graduates the tax according to number of feet of lumber sold annually. Reference to the volume of business done and number of feet, indicates, according to the opinion of appellee, that this arbitrary fixing of the amount of tax in proportion to the number of feet sold, without reference to the kind, character, or value of such lumber plainly indicates that this tax imposed has reference solely to that restricted business of selling lumber from a "lumber yard" and being restricted solely to that...