Zemurray v. Bouldin

• Decision Date: 12 February 1906
• Citation: 40 So. 15,87 Miss. 583
• Court: Mississippi Supreme Court
• Parties: SIMON ZEMURRAY v. MALACHI J. BOULDIN, TAX COLLECTOR

40 So. 15

87 Miss. 583

SIMON ZEMURRAY v. MALACHI J. BOULDIN, TAX COLLECTOR

Supreme Court of Mississippi

February 12, 1906

FROM the circuit court of, second district, Coahoma county, HON SAMUEL C. COOK, Judge.

Zemurray the appellant, doing business under the name of Zemurray &amp Company, was the plaintiff in the court below; Bouldin, the appellee, the sheriff and tax collector of Coahoma county was defendant there. From a judgment in favor of defendant and dismissing the suit the plaintiff appealed to the supreme court.

Zemurray & Co. were fruit dealers, who shipped bananas in car-load lots from New Orleans for sale at stations in Mississippi. Among the towns on the route selected by them on which to offer bananas for sale were Jackson, Miss. and Clarksdale Miss. On May 1, 1904, they shipped a car load of bananas to Jackson and exposed them for sale. The tax collector of Hinds county, in which Jackson is situated, demanded the payment of a privilege tax of $ 100 for operating a trading car. The law under which this tax was demanded was and is the act of March 16, 1904 (Laws 1904, ch. 76, p. 58), the first section of which provided for the levy of a privilege tax on the industries thereinafter mentioned, and then followed many sections designating the industries upon which the tax was imposed, among them being sec. 93, in these words:

"Section 93. On each trading car, traveling two hundred and fifty miles or more, $ 250; same, traveling less than two hundred and fifty miles and more than one hundred and fifty miles, $ 150; same, traveling less than one hundred and fifty miles, $ 100."

Appellant paid the license tax of $ 100 for operating the trading car a distance of less than one hundred and fifty miles, protesting that he was not operating a trading car such as was contemplated by the law. On November 5, 1904, appellant shipped a car load of bananas to Clarksdale, Miss. a point north of Jackson, Miss. and more than one hundred and fifty miles from the southern border of the state, where the car shipped from New Orleans entered the state. The tax collector of Coahoma county, in which Clarksdale is situated, and which lies within the Yazoo- Mississippi Delta levee district, demanded of appellant the payment of an additional sum of fifty dollars, on the ground that the car was being operated a distance of more than one hundred and fifty miles, since the point at which it entered the state was more than one hundred and fifty miles from Clarksdale. Appellant contended that after taking out the privilege license at Jackson he had a right to run the car into the state and to open the same at any station and sell bananas at any point in the state less than one hundred and fifty miles from the station where the car was first opened and bananas offered for sale. The tax collector also demanded a penalty of fifty dollars for failure on the part of appellant to pay a privilege tax from the first of May of $ 150, the privilege-tax law of 1904 having authorized a collection of double the amount of privilege taxes as a penalty for failure to procure a license during the month in which it was due. The tax collector also demanded a privilege tax of $ 150 for levee purposes, acting under sec. 93 of the privilege-tax statute, and Laws 1902, ch. 80, sec. 4, p. 133, which is as follows:

"Section 4. Any person or corporation desiring to enjoy any of the privileges levied as aforesaid, by said board of levee commissioners, shall first pay the taxes as prescribed to the collector of taxes for the county wherein the privilege is to be exercised, and obtain from him the license hereinafter required; and any person or corporation who shall exercise any of the privileges so levied without first paying the tax and procuring the license, as required, shall, upon conviction, be fined not less than double the amount of the tax imposed on such privilege," etc.

The tax collector then demanded a penalty of $ 150 for failure of the appellant to pay the levee tax on the first of May. The total amount demanded was $ 400, which appellant paid under protest, and brought this suit to recover it. The plaintiff, in his suit against the tax collector, insisted that the $ 300 represented by the fifty dollars additional privilege tax, fifty dollars penalty, the fifty dollars additional levee tax, and the $ 150 paid the levee board, was illegally demanded. The law authorizing the Yazoo-Mississippi Delta levee district to levy privilege taxes was passed February 26, 1902, and provided that a penalty of ten per cent should be added on all delinquents; but the tax collector insisted that the act of 1904, which levied privilege taxes on certain occupations and provided a penalty of double the taxes, applied not only to general state and county taxes, but to levee taxes as well.

Cause reversed and remanded.

J. W. Cutrer, for appellant.

A search of the various dictionaries, law dictionaries, digests, and text-books has failed to disclose any definition or decision on this subject, aside from the case of Vicksburg, etc., R. R. Co. v. State, 62 Miss. 105.

There is one idea which seems to be crucial in determining whether or not a car is a trading car, and that is, the fact should clearly appear that the goods sold are replenished; for one who sells without replenishing his stock is not a merchant or a trader, and his car cannot be a trading car. Agonett v Edmonson, 9 Bax., 610. As stated by this court, "no occupation is to be taxed unless clearly within the provisions of the law." In the instant case, the car in question was an ordinary railroad freight box car, which was hired for a short time, to transmit fruit. The appellant did nothing to the car--fitted up no counters or shelves, nor in any way altered the car. Furthermore, the appellant did not travel in the car, nor did he have other persons to do so. The car was simply transported to a designated point by the railroad company, and there for the first time delivered to the consignee thereof. Again, the appellant had the right to open this car throughout its trip but three times, and each time he had to pay five dollars for this privilege. Nor did appellant have the...