State v. Downs, 5 Div. 324.

• Decision Date: 06 June 1940
• Docket Number: 5 Div. 324.
• Citation: 197 So. 382,240 Ala. 74
• Parties: STATE v. DOWNS.
• Court: Alabama Supreme Court

197 So. 382

240 Ala. 74

STATE v. DOWNS.

5 Div. 324.

Supreme Court of Alabama

June 6, 1940

Rehearing Denied June 27, 1940.

Certiorari to Court of Appeals.

Petition of the State of Alabama, by its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case styled State v. J. B. Downs, etc., 197 So. 379.

Writ granted; reversed and remanded.

Thos S. Lawson, Atty. Gen., and John W. Lapsley and J. Edw Thornton, Asst. Attys. Gen., for the motion.

Reynolds & Reynolds, of Clanton, opposed.

BOULDIN Justice.

Certiorari to review the decision of the Court of Appeals in State of Alabama v. J. B. Downs, 197 So. 379.

The statement of facts is set out in the opinion of the Court of Appeals.

The action is to recover the privilege taxes alleged to be due from defendant as a "wholesale dealer in lumber" for the years 1933 to 1937, inclusive, levied under license Schedule 126, Section 361, Gen.Acts 1919, p. 438, and Schedule 84, Section 348, Gen. Acts of 1935, p. 473, after this act became effective.

In the statement of facts it is expressly shown that during the period in question defendant sold timber and lumber from his lumberyard operated in Clanton, Alabama, "to wholesalers, retailers, and consumers in car lots, or in less quantities."

Sales to wholesalers and retailers as thus shown clearly denote the business of a "wholesaler" of lumber.

Whether he is to be classed as a "wholesale dealer in lumber" turns on the meaning of this expression as commonly defined, and in its connotation in our statutes.

In fixing a schedule of privilege or license taxes in the General Revenue Act of 1919, followed by the General Revenue Act of 1935, a privilege tax was levied on special lines of business identified with, and a part of what we may term the lumber industry.

Among them is a privilege tax payable by persons "engaged in operating a saw mill." Gen.Acts 1919, Section 361 Schedule 122, p. 437; Gen.Acts 1935, Section 348, Schedule 123, p. 490.

This is a graduated tax based on the capacity of the mill. Its location does not figure in fixing the amount. This schedule includes all sawmills, from the small portable mill, sawing lumber in the rough, to the large plant, in connection with which lumber is dried and finished ready for the saw and the hammer in the construction industry, and from which shipments are made to wholesale and retail lumber dealers.

Another privilege tax is levied on persons "operating a lumber yard." Gen.Acts 1919, Section 361, Schedule 125, p. 438; Gen.Acts of 1935, Section 348, Schedule 83, p. 473.

This tax is graduated on the basis of the number of inhabitants of the city where located.

In the Act of 1935, supra, it is provided: "This shall not apply to regularly licensed sawmills selling lumber at retail at it or his plant." (Italics supplied.)

It will be noted no separate privilege tax is levied on retailers of lumber. The operation of a lumberyard, bringing in and selling out at retail, is covered by the lumberyard license, based on local demand by reason of location; and retail sales from the sawmill plant, are covered by the sawmill license. Immediately following the "lumber yard" schedule in both the Acts of 1919 and 1935, is the schedule covering the "wholesale dealer in lumber."

In the Gen.Act of 1919, p. 438, Section 361, Schedule 126 reads: "For each exporter, wholesale dealer, or jobber of lumber and timber, and for each dealer in lumber and timber on commission, one hundred dollars."

In the Gen.Act of 1935, p. 473, Section 348, Schedule 84 reads: "For each wholesale dealer, or jobber of lumber and timber and for each wholesale dealer in lumber and timber on commission whether maintaining an established place of business or not, One Hundred Dollars ($100.00)." (Italics supplied.)

We have italicized the clause inserted in the Act of 1935. We deem it significant. A lumberyard, a place of business in filling wholesale orders, does not enter into the definition of wholesale dealer, and, hence, the lumberyard license does not cover wholesale shipments therefrom.

We note in passing, as a matter of information, the Act of March 2, 1937, (Acts Special Session, 1936-37, p. 279) levying a privilege tax on planing mills, etc., but excepting operators of sawmills and wholesale dealers, who have paid the license under Schedules 123 or 84 of the Act of 1935.

Here is a legislative recognition of the well-known fact that processing lumber to meet the demands of the trade is part of the activity of the wholesale lumber dealer. The statement of facts discloses that defendant purchased standing timber; contracted or hired persons to log it to designated sawmills; that he contracted or hired these mills to saw it as specified; contracted or hired it hauled to the lumberyard at Clanton, where it was dried, finished and sold on the wholesale and retail market.

He paid no sawmill license. This presumedly was paid by the sawmill operator....