Shelton v. Silverfield

• Decision Date: 27 January 1900
• Citation: 56 S.W. 1023,104 Tenn. 67
• Parties: SHELTON, County Clerk, v. SILVERFIELD et al. ETTERMAN v. SHELTON, County Clerk.
• Court: Tennessee Supreme Court

56 S.W. 1023

104 Tenn. 67

SHELTON, County Clerk, v. SILVERFIELD et al.

ETTERMAN v. SHELTON, County Clerk.

Supreme Court of Tennessee.

January 27, 1900

Error to circuit court, Davidson county; J. W. Bonner, Judge.

Silverfield & Feldman, pawnbroker, paid under protest a state tax imposed on dealers in secondhand clothing, and sued P. A. Shelton clerk of the county court, to recover it. For that paid to the county, certiorari and supersedeas was obtained. There was a judgment in favor of plaintiffs, and defendant brings error. Action by H. Etterman against P. A. Shelton, clerk of the county court, to recover a tax imposed on dealers in secondhand clothing, paid under protest. Judgment in favor of defendant, and plaintiff brings error. Both cases heard together. Judgment in the first case affirmed, and in the second case reversed.

Lellyett & Barr, for plaintiffs J. A. Cartwright, for defendant.

GRIGSBY J.

In the first of the above-styled cases the defendants in error Silverfield & Feldman, are pawnbrokers in the city of Nashville, and as such have paid the pawnbroker's privilege tax required by the act of 1899, and were regularly licensed to do business as such. By an agreed statement of facts (that is, facts set out in defendants in error's petition for certiorari and supersedeas) it is shown that the regular course and practice of the business engaged in by the defendants in error are to loan money on articles pawned as security therefor, and to sell such articles when the time for redemption expires, if the debt is not paid, and, in the event of purchasing to save the debt, to sell again the articles that are or may be pledged, which are as numerous in variety as the kinds of personalty that admit of ownership and value, both first and second hand, including among the several classifications precious stones, jewelry, timepieces furniture, clothing or wearing apparel, utensils, etc. The plaintiff in error, being the clerk of the county court of Davidson county, through proper officials demanded (and issued a distraint warrant therefor against them) the additional privilege tax on dealers in secondhand clothing or wearing apparel, under section 4 of the act of 1899, imposing a privilege tax, etc. The defendants in error paid the tax (under protest) that was claimed by the state, and sued for it back, and obtained certiorari and supersedeas for that of the county. By agreement the motion to dismiss the petition was heard by the court, as also, at the same time, the merits of the case.

The revenue act of 1899 (chapter 432) provides: "Sec. 3. Be it further enacted, that all merchants shall pay an ad valorem tax upon the average capital invested by them in their business of 50 cents on the $100, 35 cents of which shall be for state purposes, and 15 cents of which be for school purposes, and a privilege tax of 15 cents on each $100 worth of taxable property, 7 1/2 cents of which shall be for school purposes and 7 1/2 cents for state purposes: provided that such privilege tax, without regard to the length of time they do business, shall in no case be less than $5.00, which $5.00 is to be paid when the license is taken out, and in case of those whose privilege tax amounts to more than $5.00, the $5.00 paid shall be a credit when the balance of the taxes is paid: provided, further, that said $5.00 shall be equally divided between the state and counties." By section 4 privilege taxes are fixed as follows: "(a) Dealers in secondhand clothing. Persons, firms, or corporations dealing in secondhand clothing or wearing apparel, each per annum $250.00. (b) Pawnbrokers. In cities, towns or taxing districts of 30,000 inhabitants or over each per annum $150.00."

It is insisted by the plaintiff in error the clerk of the county court that under the act of 1899, above cited, the defendant in error is not only a merchant and pawnbroker, but is also a dealer in...