Sheely v. McLemore
| Decision Date | 05 June 1926 |
| Citation | 284 S.W. 61 |
| Parties | SHEELY v. McLEMORE, County Court Clerk. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Shelby County; D. W. De Haven, Chancellor.
Suit by Edward V. Sheely against John C. McLemore, Clerk of the County Court of Shelby County, to test complainant's liability for a privilege tax. Decree holding that complainant was not liable for the tax, and respondent appeals. Reversed and dismissed.
McKellar, Kyser & Allen, of Memphis, for Sheely.
L. D. Bejach, of Memphis, W. T. McLean,
W. H. Swiggart, Jr., of Nashville, and C. P. J. Mooney, Jr., of Memphis, for appellee.
This suit was brought against the clerk of the county court of Shelby county by Edward V. Sheely, a druggist in Memphis, to test complainant's liability for a privilege tax imposed by chapter 134 of the Acts of 1925, § 4, upon "each person, firm or corporation selling electric fixtures, apparatus, supplies," etc. The chancellor held that the complainant was not liable for the tax, and the county court clerk has appealed to this court.
Counsel for the parties have referred to various cases decided by this court, construing different revenue acts, as upholding the contentions of each side herein. Among these cases are Wender v. Lobertini, 151 Tenn. 476, 267 S. W. 367; Chero-Cola Bottling Co. v. McDaniel, 145 Tenn. 615, 237 S. W. 1101; Stockell v. Hailey, 144 Tenn. 49, 229 S. W 382; Refining & Producing Co. v. Davidson County, 139 Tenn. 401, 201 S. W. 737; Gulf Refining Co. v. Chattanooga, 136 Tenn. 505, 190 S. W. 463; Barlin v. Knox County, 136 Tenn. 238, 188 S. W. 795, 2 A. L. R. 112; Cigar Co. v. Cooper, 99 Tenn. 472, 42 S. W. 687.
Owing to the distinctive language employed by the Legislature in assessing the tax here involved, we find none of the cases cited directly in point. Barlin v. Knox County, supra, considered a section of the Revenue Act of 1915 quite similar to the section of the act of 1925 under construction, and this case we shall presently discuss.
Chapter 134 of the Acts of 1925 declares numerous things to be a privilege, and fixes the amount of privilege tax that each of these things shall bear. In this schedule (page 450) the following appears:
Each person, firm or corporation selling electric
fixtures, apparatus, supplies, etc., including
radio parts, in cities and towns of
50,000 inhabitants and over, per annum......... $50 00
In cities of less than 50,000 inhabitants, per
annum .......................................... 25 00
Provided, that this act shall not apply to electric power and light companies selling such appliances, fixtures, apparatus and supplies in connection with the business of furnishing electric current for power and lighting purposes, nor to radio dealers, paying the privilege tax on such dealers provided in this act.
The act also levies an ad valorem tax upon merchants (section 3), and also a privilege tax upon merchants of 15 cents per annum on each $100 of the average capital invested. Page 461.
The complainant, as stated before, is a druggist, and has paid his ad valorem tax and his merchant's privilege tax. He avers that it is customary for druggists in Memphis and elsewhere in the state to carry a small line of electric appliances, such as bulbs, flash lights, etc.; that such goods are an integral part of his stock as a druggist; that they were included in the valuation of his stock for ad valorem taxation and for his merchant's privilege tax; that the value of such electrical appliances carried by him is trivial in comparison with the remainder of his stock; and that the handling of such articles is a mere incident to the conduct of his business as a druggist. All these charges of the bill are admitted by the demurrer, and, upon these facts, the complainant insists that he is not liable to a privilege tax as one "selling electric fixtures, apparatus, supplies," etc.
This argument is plausible, and, if the privilege had been declared in different terms, this case might fall under the authority of Stockell v. Hailey, supra, and others cited, and the complainant held exempt.
It will be noticed that the tax in question is levied upon "each person, firm or corporation" selling electric appliances, except electric power and light companies selling such appliances in connection with their business, and except radio dealers who have paid the privilege tax laid on their business. The exception of electric power and light companies and radio dealers from this tax, under a well-settled rule of statutory interpretation, makes it certain that the tax was intended to be assessed against all others selling electric appliances. When exceptions are expressed, the conclusion follows that no other exceptions were intended.
Lewis' Sutherland on Statutory Construction, § 494.
The foregoing has been quoted and approved by this court in Kelly v. State, 123 Tenn. 516, 132 S. W. 193; Burns v. City of Nashville, 132 Tenn. 429, 178 S. W. 1053; Turner v. Eslick, 146 Tenn. 236, 240 S. W. 786.
This rule of construction was considered at length in Turner v. Eslick, supra, and the authorities sustaining it reviewed. The rule is clearly applicable here, and seems to demonstrate that it was not proposed to relieve any one selling electric appliances from the privilege tax imposed upon such sales, save electric power and light companies and radio dealers. The sale of such appliances is but an incident of the business of electric power and light companies and of radio dealers, just as it is an incident of the business of a retail druggist. Nevertheless the statute must have contemplated that those selling such appliances with two exceptions should pay a privilege tax, even though such sales were incidental to the main business carried on, else other exceptions would have been made.
"...
To continue reading
Request your trial