Warburton-Beacham Supply Co. v. City of Jackson

Citation151 Miss. 503,118 So. 606
Decision Date29 October 1928
Docket Number27271
CourtUnited States State Supreme Court of Mississippi
PartiesWARBURTON-BEACHAM SUPPLY CO. v. CITY OF JACKSON. [*]

Division A

Suggestion of Error Overruled Nov. 12, 1928.

APPEAL from circuit court of First district, Hinds county, HON. W H. POTTER, Judge.

Suit instituted in a justice of the peace court by Warburton-Beacham Supply Company against the city of Jackson. Plaintiff recovered in the justice court, and in county court to which the case was appealed, but the circuit court on appeal reversed the county court's judgment and remanded the case to it. The county court then rendered judgment that plaintiff take nothing. On appeal to the circuit court the judgment was affirmed, and plaintiff appeals. Affirmed.

Affirmed.

Howie, Howie & Latham, for appellant.

Cited: Planters Lumber Co. v. Johnson, 112 So. 9; Carnie v. Hamilton, 42 So. 378; Levee Commissioners v. Oil Co., 44 So. 828.

Morse & Bryan, for appellee.

Cited: Wilby v. State, 47 So. 465; Vicksburg v. Mullane, 63 So. 412; Folkes v. State, 63 Miss. 81; Alcorn v. State, 71 Miss. 464, 15 So. 37; Pitts v. Vicksburg, 72 Miss. 181, 16 So. 418; Craig v. Patterson, 74 Miss. 881, 21 So. 756.

Howie, Howie & Latham, for appellant, in response to request of court.

In response to the first question propounded by the court, we find that section 239, chapter 118, Laws of 1926, was new in our privilege tax laws and was first enacted in the Laws of 1926 and became in force and effect on April 30, 1926.

In response to the second question, we contend that section 239 above mentioned did not and does not change the rule announced in the case of Planters Lumber Co. v. Johnson. The Planters Lumber Company case went off on the proposition that "privileges are taxed in reference to the known course of business." It was stated there that "the legislature in imposing privilege taxes upon lumber yards, is presumed to have adopted the common understanding of what constituted lumber yards." And in that case, the decision was based upon the facts showing "that during the time mentioned in the declaration, the business of the defendant conducted by the defendant was what is commonly known and called lumber yard business."

We contend that the proof in the present case, which is uncontradicted, shows that the appellant was doing business commonly known as "a plumbing business," and that the name "plumbing business" had at the time of the levy of the taxes in this case and for a long time prior to that time, had a definite meaning and that the expression or name "plumbing business" meant the carrying on of just that business that the appellants carried on during the period in controversy. We submit that under the decision in the Planters Lumber Company case, we were not liable for any tax except the tax levied against the plumbing business.

Morse & Bryan, for appellee, in response to request of court.

This tax and penalty were collected after section 239 of chapter 118 of the Laws of 1926, being section 7813 of Hemingway's Code of 1927, was in full force and effect.

Answering the second question, we call the court's attention to the opinion rendered by the circuit judge in reversing this case the first time when it came up from the county court: "The case of The Planters Lumber Company against Wells, Sheriff, etc., 112 So. 9, relied upon by the Supply Company in this case, is not controlling.

"The license tax there in question was on a sales lumber yard business and the question decided was as to the latitude of the sales privilege.

"The Warburton-Beacham Supply Company is engaged in and is only licensed to do a plumbing business. Under its plumbing privilege, it had the right to buy, store and display its wares, make plumbing contracts, and do all manner of plumbing work and to use its plumbing material in the same, and to receive compensation for the wares in changed condition supplied under its work or contract work, and in this manner sell without limit plumbing material. Eighty per cent of its business was done according to its privilege, but twenty per cent of its wares were disposed of outside of its licensed business, and in its retail and wholesale business for which it paid no privilege, as it was required to under sections 7756 and 7813, Hemingway's Code 1927."

In the case at bar there is no agreement touching the customary method of conducting a plumbing business over a period of years.

OPINION

SMITH, C. J.

The appellant recovered before a justice of the peace, and in the county court, to which the case was appealed, a judgment against the appellee for privilege taxes alleged to have been unlawfully collected from it by the appellee, and paid by it under protest. The circuit court, on an appeal of the case thereto, reversed the judgment of the county court and remanded the case to it. The county court then rendered a judgment that the plaintiff take nothing by its suit, from which an appeal was again taken to the circuit court, where the judgment of the county court was affirmed, from which judgment the appellants have brought the case to this court.

It appears from the written statement of the appellant's claim, and the evidence in support and denial thereof, that the Warburton-Beacham Supply Company is a corporation engaged in the plumbing business in the city of Jackson. It maintains a warehouse, in which it keeps a large stock of plumbing materials and fixtures. It also maintains an office, in connection with which is a room where it displays samples of the materials and plumbing fixtures carried by it in stock. The materials and fixtures used by it in fulfilling its plumbing contracts are taken from the stock thereof carried by it; but it sells from this stock plumbing materials and fixtures to any person applying therefor, irrespective of whether or not they are used in connection with contracts for plumbing entered into by it; in other words, such sales are to the public generally. Such sales constitute about twenty per cent. of the appellant's business.

Persons engaged in the plumbing business have been accustomed, for more than twenty years, to carry plumbing materials in stock for use by themselves in executing their plumbing contracts, and for sale to the public generally.

Section 3854, Code of 1906, imposes a privilege tax on "each individual, firm or corporation doing a plumbing business in cities or towns . . . where they have waterworks and sewerage." In 1920 this statute was amended by omitting the words "where they have waterworks and sewerage," and was made to read "on each individual, firm, or corporation doing a plumbing, steam fitting or gas fitting business in cities." Section 43, chapter 104, Laws of 1920; section 7730, Hemingway's 1927 Code.

Section 3872, Code of 1906 (section 7756, Hemingway's 1927 Code), imposes a privilege tax on each store. Section 3909, Code of 1906 (Hemingway's 1927 Code, section 7808), permits municipalities to impose a privilege tax not exceeding fifty per centum of that imposed by the state.

The record does not disclose any ordinance adopted by the appellee imposing privilege taxes, but the agreed statement of facts assumes that such an ordinance exists imposing a privilege tax on stores and on the plumbing business in accordance with the statute. Section 239, chapter 118, Laws of 1926 (Hemingway's 1927 Code, section 7813), provides that:

"Any person, firm or corporation pursuing more than one of the businesses herein taxed shall pay the privilege tax on each separate business so conducted or pursued," etc.

Prior to 1926, the appellant paid the appellee the tax imposed on persons engaged in the plumbing business, but paid no tax on a store. In January, 1927, the appellee collected from the appellant, over its protest, a privilege tax on a store for the year 1926, damages for not having paid the tax when due, and a privilege tax on a store for the year 1927, and this suit is by the appellant to recover the money so paid.

The appellant's contention is that the plumbing business includes the selling of plumbing materials to the public generally. What we are called on, then, to do, is to define the words "plumbing business" as used in ...

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