Pryor v. State
| Decision Date | 29 February 1932 |
| Docket Number | 29574 |
| Citation | 139 So. 850,162 Miss. 602 |
| Court | Mississippi Supreme Court |
| Parties | PRYOR v. STATE |
1. HAWKERS AND PEDDLERS. Licenses.
Business of transient vending of merchandise possesses distinguishing characteristics justifying classification and legislation thereon, both in matter of license fees and police regulation.
2 LICENSES.
License fee for transient vendors of merchandise may be fixed at amount which will bring them into some fair equality in respect to their share of taxation in community.
3 LICENSES.
Two hundred dollars license tax imposed on transient vendors of fruit and vegetables held not excessive (Laws 1930, chapter 88, section 207).
APPEAL from circuit court of Yalobusha county HON. GREEK L. RICE, Judge.
Howard Pryor was convicted of violating statute requiring payment of privilege license tax by transient vendors of fruit and vegetables, and he appeals. Affirmed.
Affirmed.
Chas. S. Mitchell, of Tupelo, for appellant.
It is well settled that a demurrer is a proper pleading to test the constitutionality of any statute.
State v. Lawrence, 66 So. 747; State v. Tucker, 59 So. 826; Williams v. State, 94 So. 882.
The statute (chapter 88, Laws of 1930), not only violates the letter and spirit of the constitution of the state of Mississippi, but it also violates the letter and spirit of the constitution of the United States.
In the case at bar, the licenses imposed is a "state tax" which requires that the fee exacted, be paid in each of the eighty some odd counties of the state of Mississippi before one would be entitled to engage in this business throughout the state of Mississippi. In other words, a merchant who desired to sell fruits or vegetables within the state of Mississippi, whether they were raised within the state or not, would be required to pay the exhorbitant and unreasonable sum of five hundred dollars to each of the tax collectors of the eighty some odd counties within the state, which would amount to the exhorbitant sum of more than forty thousand dollars annually.
If there is one rule of law that is well settled, when we deal with these questions of licenses and privileges, it is that rule which requires that they shall be reasonable and not arbitrary.
The fee in this case being a license, the legislature of the state would have no power to require such an amount as would be confiscatory or prohibitive, unless the business to be taxed, or licensed, were of such a nature as to be injurious to the public welfare, hurtful to public morals, productive of disorder, and injurious to the public generally.
It is well settled that, except as to those occupations or privileges in respect to which a restrictive or prohibitive fee or tax may be imposed, a license fee or tax, whether under the police power or under the taxing power, can legally be imposed only in such amount as, under the circumstances, is just and reasonable.
37 C. J., par. 41, p. 190; Riley, State Auditor, v. Ayer & Lord Tie Company, 113 So. 214.
W. D. Conn, Assistant Attorney-General, for the state.
Under the facts of this case appellant came within the definition of a peddler as laid down by this court in the case of Israels v. State, 127 So. 279, 157 Miss. 143.
The amount of the tax (privilege) is primarily a legislative question. But of course the reasonableness or unreasonableness of a license fee is a judicial question. But the test in each case must necessarily be: On the facts of the case can the legislature be said to have acted unreasonably in fixing or determining the amount of license fee in any particular case.
Garbutt v. State, 116 Miss. 424; 21 R. C. L. 182, sec. 3.
The license fee imposed by section 207 of chapter 88 of the Laws of 1930 is not unreasonable under all of the circumstances.
O'Hara v. Collier, 139 N.W. 870; Duluth v. Krupp, 49 N.W. 235; State v. Jensen, 100 N.W. 644; Garbutt v. State, 77 So. 189, 116 Miss. 424.
Appellant was convicted of a violation of section 207, chapter 88, Laws 1930, which levies, and requires the payment of, a privilege license tax, as follows:
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