State v. Wilson & Co., Inc., of Louisiana
| Decision Date | 26 March 1934 |
| Docket Number | 32625 |
| Parties | STATE v. WILSON & CO., INC., OF LOUISIANA |
| Court | Louisiana Supreme Court |
Rehearing Denied April 23, 1934
Appeal from Civil District Court, Parish of Orleans; William H Byrnes, Jr., Judge.
Action by the State against Wilson & Co., Inc., of Louisiana. Judgment for plaintiff, and defendant appeals.
Affirmed.
Merrick Schwarz, Guste, Barnett & Redmann, of New Orleans, and Wm. R. Brown, of Chicago, Ill., for appellant.
Peyton R. Sandoz, of Baton Rouge, and Charles J. Rivet, Sp. Asst. to Gaston L. Porterie, Atty. Gen., for the State.
OPINION
The present suit is one instituted by the state against Wilson & Co., Inc., of Louisiana, to recover a tax of 1 1/4 per cent. of the gross receipts arising from wholesaling, selling, or jobbing meat products in the state.
The defendant admits having made the gross sales set forth in the petition, but resists payment on the ground that the tax is unconstitutional, because, tersely stated, (1) it is a burden on interstate commerce; (2) because it denies defendant the equal protection of the laws; (3) because it deprives defendant of its property without due process of law; (4) because it is not graduated, the tax being a license tax; and (5) because it takes defendant's property without just compensation.
There was judgment below for plaintiff in accordance with the prayer of its petition. Defendant has brought the case here by this appeal.
The tax sued for is one levied by section 1 of Act No. 17 of 1932, which, so far as pertinent, reads as follows:
"Every person, firm, corporation, partnership or association of persons engaged as manufacturers, wholesalers, jobbers, or engaged in both wholesale and retail business of selling, handling, or exchanging butter, oleo, oleomargarine, * * * beef and veal meats or other beef or veal by-products of the slaughter-house or packing house business or industry arising from the handling of beef and veal meats, shall pay a tax in addition to any tax already imposed thereon for the privilege of engaging in such business of one and one quarter percentum (1 1/4%) of the gross receipts from the sale of the commodities enumerated based on the wholesale prices referred to herein."
Although the tax sued for is levied under section 1 of the act, still, due to the manner in which the case is presented, it is advisable, if not necessary, to quote section 2 of the act. Section 2 reads as follows:
"All persons, firms, corporations, partnerships or associations of persons slaughtering or having cattle or calves slaughtered on their own account or for custom rates in the State of Louisiana shall pay a tax, in lieu of any other tax levied in this Act, for the privilege of engaging in such business, on each head of cattle or calves so slaughtered, according to the following rates, viz; on animals weighing 261 pounds or over dressed weight, fifteen cents (15 cent) for each animal slaughtered; on animals weighing less than 261 pounds dressed weight, ten cents (10 cent) for each animal slaughtered; and the commodities referred to in this section shall not be subject to any further tax under the provisions of this Act."
Section 3 of the act exempts from the taxes levied by the act all milk and milk products produced on the farm and delivered direct to the consumer, and all beef, veal, and meats from animals slaughtered on the farm and sold direct to the consumer, except where such products are bought or slaughtered for the purpose of resale, and raw fluid milk, pasteurized milk, buttermilk, cream, or cottage cheese, whether sold direct from the farm or through jobbers, wholesalers, retailers, or any other distributors.
The purpose of levying the tax, as disclosed by section 9 of the act, is to eradicate the cattle fever tick.
Defendant describes itself in its answer, which is not disputed in this respect, as a corporation with its principal place of business in the city of New Orleans. It is engaged in the business of dealing in, wholesaling, and jobbing dairy and meat products, though not milk, and besides butter, and butter substitutes, in this state. It buys its merchandise from without the state, and, upon its arrival in New Orleans, stores it there, and sells it, in the state, to various customers at wholesale. In disposing of its goods, defendant is now and has been including the tax, and carries it in a separate account with the intention of returning it to its customers in the event the tax is defeated in this suit.
As defendant has collected the tax from its customers, though has not paid it to the state authorities, plaintiff urges that defendant no longer has an interest in resisting the payment of the tax. In our view, this position is not well grounded. Notwithstanding this precaution on defendant's part, defendant is still the debtor for the tax. The tax is laid on the manufacturer, wholesaler, or jobber, and remains on him. It does not pass to the purchaser of the merchandise, although incorporated in the bill to him, whether it appear on the bill separately or not. The purchaser does not pay the tax, although he may pay the vendor more for the goods, because of the vendor's obligation to pay it, but that is all. Lash's Products Co. v. United States, 278 U.S. 175, 49 S.Ct. 100, 73 L.Ed. 251; Shearer v. Commissioner of Internal Revenue (C. C. A.) 48 F.2d 552.
The complaint that the tax levied in section 1 of the act, and sought to be collected here, is a burden on interstate commerce, rests on what we consider a misconstruction of an inartistically drawn statute. To quote from defendant's brief, its position is that:
If counsel were correct in their construction of the act, the case might end here, but it seems clear to us that counsel are incorrect. The act levies two distinct taxes, one of 1 1/4 mills on the gross receipts, and the other of 10 cents or 15 cents on an animal, for the privilege of engaging in two distinct businesses, one of which is the business of manufacturing, wholesaling, and retailing beef, veal, milk, cheese, and other by-products of these animals, and the other is a tax of 10 cents or 15 cents an animal slaughtered, depending upon whether its weight is under 261 pounds, or is 261 pounds or more, when dressed. The act makes no reference to the sources of the products sold; that is, as to whether they come from another state or not. It is immaterial from what state, so far as concerns the tax levied by section 1 of the act, the products come; that is, whether they are Louisiana products, or the products of another state shipped here, at the instance of the purchaser, for resale. Whether they are Louisiana products or the products of another state shipped here, the tax for conducting the business of selling them, in this state, is the same; namely, 1 1/4 per cent. of their gross receipts.
Section 1 of the act, in which classification defendant falls contains no exemption from the tax whatever. The only exemptions are contained in section 3 of the act, exempting beef, veal, and meats of animals slaughtered on the farm and sold direct to the consumer and not for resale, and exemptions of various forms of milk and cream or cottage cheese, the latter, whether sold direct from the farm or through jobbers, wholesalers, or retailers, or other distributors. There is no danger of these exemptions operating to relieve residents of...
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...the rolls. If there had been any doubt about it, the plaintiff could have called Mr. Couvillion, the tax collector, who made the sale, to [154 So. 636] dispute it. He was then living and present when the case was tried, but was not called. Mr. Laborde, the tax debtor, died more than three y......
- State v. Wilson & Co., Inc., of Louisiana