State ex rel. Brittain v. Hayes

• Court: Louisiana Supreme Court
• Writing for the Court: O'NIELL, J.
• Citation: State ex rel. Brittain v. Hayes, 143 La. 39, 78 So. 143 (La. 1918)
• Decision Date: 25 February 1918
• Docket Number: 22832
• Parties: STATE ex rel. BRITTAIN, Sheriff, v. HAYES

78 So. 143

143 La. 39

STATE ex rel. BRITTAIN, Sheriff, v. HAYES

No. 22832

Supreme Court of Louisiana

February 25, 1918

SYLLABUS

(Syllabus by the Court.)

When the nature and character of a particular business sought to be taxed is proven or admitted, and the only question presented is whether the business is subject to a license tax, the case is one in which the legality of a tax is in contest, and of which the Supreme Court alone has appellate jurisdiction, regardless of the amount involved.

The occupation of a dairyman, going about delivering the milk from his farm to his regular customers according to their previous orders, is not, within the ordinary meaning or acceptation of the term, peddling or hawking.

When a statute has been amended and reenacted any part of the amended act that is omitted from the amending and re-enacting statute is thereby repealed.

A farmer who goes from place to place selling at retail the products of his farm is only pursuing the business or occupation of a farmer, and is not subject to the license tax imposed upon 'peddlers or hawkers.' He comes within the provision of the Constitution exempting from any license tax all persons engaged in agricultural pursuits.

By the terms of the Act No. 229 of 1912, p. 517, the peddlers or hawkers of farm products who are required to pay a license tax are, not those whose industry has produced them, but those who buy and sell or trade in them.

William Paul Carter, of Coushatta, for appellant.

S. R Thomas, or Coushatta, for appellee.

On Rehearing.

OPINION

O'NIELL, J.

The question presented is whether the defendant owes the state the license tax of $ 75, imposed by the Act No. 229 of 1912 upon every peddler or hawker traveling in a one-horse vehicle.

The defendant is a farmer who drives to town daily in his buggy and delivers to his regular customers, according to their orders, milk produced by his cows on the farm.

The defenses are: First, that the defendant is not a peddler or hawker because he does not go about selling the milk, but only delivers to has customers the milk that is already sold or ordered from the farm; second, that the sale and delivery of the milk produced on his farm is done in pursuit of the defendant's agricultural or farming business, which pursuit is exempt, by the terms of article 229 of the Constitution, from any license tax; and, third, that, by the terms of the Act No. 229 of 1912, a person is not required to pay a peddler's license for selling the product of his own industry.

Judgment was rendered in favor of the defendant, and the plaintiff has appealed.

On the first hearing, we sustained the appellee's motion to dismiss the appeal on the ground that the case presented only the question of fact whether the defendant was a peddler. Having reconsidered the matter, our conclusion is that the case presents, not a question of fact, but questions of law, by which we are to determine whether the license tax can be legally imposed upon the defendant. This court alone has appellate jurisdiction of cases in which the constitutionality or legality of any tax is in contest. Const. art. 85. The motion to dismiss the appeal is therefore overruled.

Our opinion is that the defenses to the suit are well founded. It is certain that the occupation of a dairyman, delivering milk to his regular customers in compliance with their previous orders, is not, within the ordinary meaning of the term, peddling or hawking. A peddler or hawker is an itinerant merchant or trader, who goes from house to house or from place to place, exposing and selling the goods, wares or merchandise he carries.

It is argued by the attorney...