Zager v. Cobb
| Decision Date | 09 March 1951 |
| Citation | 192 Tenn. 79,237 S.W.2d 560,28 Beeler 79 |
| Parties | , 192 Tenn. 79 ZAGER v. COBB. |
| Court | Tennessee Supreme Court |
Horace Osment, County Atty., Nashville, for appellant.
Elkin Garfinkle, Nashville, for appellee.
This suit presents the question of whether or not the appellee, Morris Zager, was operating a 'Delicatessen Shop' from May 1, 1947 through May 1, 1950.
Zager paid to the County Court Clerk a privilege tax under protest for the years 1947-8 and 1949 and brought this suit to recover the taxes thus paid. The County Court Clerk demurred to the bill. The Chancellor overruled the demurrer and, since counsel stated that he did not desire to answer further, gave judgment for the amount of taxes. The County Court Clerk has appealed from this judgment.
Code, Section 1248.47 provides: 'Each person engaged in the business of maintaining a delicatessen shop or place shall pay per annum as follows:'
The Legislature of 1947 amended this Code Section by adding: 'Any person who advertises his place of business as a delicatessen shop or place shall be liable for the tax imposed by this item.'
Obviously the reason for this amendment was to obviate the necessity of the taxing authorities trying to define delicatessen in view of the character of goods that the ordinary modern grocery store carries. When we look at the dictionary definition of delicatessen we must take judicial knowledge of the fact that the average modern up-to-date grocery store carries the various and sundry things as listed by the dictionary constituting those things carried by a delicatessen.
The bill in the instant case, after setting forth the fact of the payment of taxes above referred to, says that the complainant Zager 'pays a general merchandise and ad valorem tax, tobacco tax, restaurant tax, beer tax and bakery tax; that he is not engaged in the delicatessen business, does not advertise as such and is not subject to said tax.'
The bill also avers that the complainant carries 'prepared meats, fine foods, rare and assorted varieties of cheese, relishes, salads and other delicacies.--fruits, vegetables, milk, canned vegetables, canned fruits, coffee, bakery products, shortening, soap, washing powders, cleaners, beer, soft drinks, cigars, and cigarettes, and other items usually carried by grocery stores.' It is also shown in the bill that in this place of business there is connected therewith a restaurant and a bakery shop. The bill also avers that in 1941, an Assistant Attorney General of the State and the County Attorney inspected his place and advised him that if he would take down certain signs advertising it as a delicatessen, that since he carried the products that the average procery store carried that then he would not be liable for the delicatessen tax. He avers that in view of this suggestion by the Assistant Attorney General and the County Attorney that these signs were all taken down and that he is not operating a delicatessen but a combination grocery store--restaurant and bakery and that he pays taxes for these things.
The bill also alleges that the tax herein was collected under a distress warrant for him and paid under protest because the County Court Clerk saw in the telephone directory under the classified adds of delicatessens the add 'Zager, Morris Delicatessen 230--4th Ave. N.' It is further alleged in the bill by Zager that he did pay the telephone company over a period of years for an advertisement but that he did not authorize the advertisement to be listed under delicatessens and that he had no knowledge that the telephone company had placed his advertisement under the delicatessen heading and that this was done without any authorization from him.
The bill was demurred to--the demurrer stating that the facts as averred in the original bill showed that the complainant was operating a delicatessen shop and was therefore liable for the tax collected by the County Court Clerk.
By the demurrer the appellant (defendant below) confessed the truth of all the properly pleaded facts as set...
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