Wilby v. State

• Decision Date: 09 November 1908
• Docket Number: 13,423
• Citation: 47 So. 465,93 Miss. 767
• Court: Mississippi Supreme Court
• Parties: ALFRED WILBY v. STATE OF MISSISSIPPI

47 So. 465

93 Miss. 767

ALFRED WILBY v. STATE OF MISSISSIPPI

No. 13,423

Supreme Court of Mississippi

November 9, 1908

From the circuit court of Forrest county, Hon. WILLIAM H. COOK Judge.

Wilby appellant, was tried and convicted of "doing a plumbing business" without having paid a privilege tax for so doing, and appealed to the supreme court. The facts of the case are fully stated in the opinion of the court.

Reversed and remanded.

R. S Hall, for appellant.

The peremptory instruction asked for by the appellant should have been granted. The record fails to disclose that appellant was in the year 1907 engaged in the "plumbing business." Code 1906, § 3854 reads: "On each individual, firm, or corporation doing a 'plumbing business' in cities and towns of 10,000 or more inhabitants where they have waterworks and sewerage." The section means what it says when the words "doing a plumbing business" are used. It certainly does not mean to tax an individual working at the plumbing trade. It certainly was not the intention of the legislature to levy a tax upon honest toil and labor; it undertook to tax those who "set up shop" carry stock and carry on a "plumbing business." I do not think that the time has yet arrived in this good state when our courts will hold that a man must pay a privilege tax to do honest toil by which to make bread for himself and family, even though he may receive as much as $ 5 per day for his work and toil.

This court has wisely interpreted similar statutes as the one now under construction in which the privilege tax is involved. City of Jackson v. Newman, 59 Miss. 385; Lynch v. State, 78 Miss. 347, 29 So. 76; Bell v. Kerr, 80 Miss. 177, 31 So. 708. In the opinion rendered in the last decision Justice Calhoon of this court speaking of the privilege tax statute says: "This is penal and must have strict construction." Carney v. Hamilton, 89 Miss. 747, 42 So. 378.

George Butler, assistant attorney general, for appellee.

The contention of appellant that because he had no regular place of business and did not employ men to do the work he was not in the plumbing business will not stand the test. The law does not regulate the licence upon the volume of the business done, but upon the size of the city. The individual who contracts and does his own work in a given city pays the same tax as an individual or firm who contracts and employs a dozen men to perform the actual labor, and one is as much liable for the tax as the other. Whether the business is conducted on a large or small scale, whether materials are bought for cash or credit or shipped, released or with bill of lading attached, or whether the manual labor is performed by one man or ten men does not affect the tax.

The question is "Was he engaged in plumbing on his own responsibility, or as a journeyman?" He of course was not liable for the tax while employed as a journeyman by the Cook Plumbing Company, but when he set up business in his own right the liability at once attached.

Argued orally by R. P. Willing, for appellant, and by George Butler, assistant attorney general, for appellee.

OPINION

MAYES, J.

Code 1906, § 3854, in the chapter on "Privilege Taxes," following a preceding section levying a privilege tax on occupations, callings etc., provides that: "On each individual, firm or corporation doing a plumbing business in cities or towns of ten thousand or more inhabitants, where they have waterworks and sewerage, $ 50. Same, in cities and towns of less than ten thousand land more than five thousand, $ 25. In all cities and towns where they have waterworks, $ 10." Alfred Wilby, the appellant, is a practical plumber, living in the city of Hattiesburg, and working at his trade for a livelihood. One Hanna was engaged in the barber business at Hattiesburg, and, desiring to have certain plumbing work done in his shop, employed Wilby to do the work, agreeing to pay therefor the sum of $ 240. Wilby did the work for Hanna, procuring the material, getting one Batson and Hanna to secure the purchase price, used in the work. It also appears that Wilby did some work for Batson. It does not appear from this record that Wilby was engaged in the business of making plumbing contracts and employing others to do or assist him in doing the work. He had no established place of business in which he kept plumbing supplies for the purpose of furnishing the material to carry out contracts. He was merely a practical plumber, doing such work as he obtained to do himself, performing his own labor, maintaining no bureau for the purpose of obtaining contracts and employing others to do the work or to assist him in doing it, but was simply engaged in making a living by working at his trade from day to day, taking such contracts and doing such work in this line as he found to do. This constitutes the substantial facts of this case.

While so engaged, the sheriff of the county demanded of him a privilege tax under the section of the Code above referred to. The city of Hattiesburg has twenty thousand inhabitants; the tax, under these circumstances, being $ 50. Wilby declined to pay same and on the 1st day of November, 1907, an indictment was returned by the grand jury, charging him with unlawfully conducting a plumbing business in the city of Hattiesburg, without first paying the privilege tax, etc. At the conclusion of the testimony the defendant asked a peremptory charge acquitting him; but the court declined to give this instruction, whereupon he was convicted, and has appealed. Since the case is to be decided upon the refusal of this instruction, it is not necessary to enter into any discussion of the other instructions in the case.

We have no difficulty in reaching the conclusion, from the facts presented here, that Code 1906, § 3854, has no application to this case. It applies only to an individual firm, or corporation making contracts and completing them by the employment of other plumbers to do the work. It has no application to any individual plumber working by the day or taking contracts for himself alone. A plumber cannot be said to be "doing a...