Opinion
6 Div. 675.
June 11, 1940. Rehearing Denied June 29, 1940. Reversed on Mandate November 6, 1940.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Action to recover privilege license by the State of Alabama against the Birmingham Beauty Shop, a partnership composed of A. C. Ramsey and I. T. Wilcox. From a judgment for defendant, plaintiff appeals.
Affirmed.
Certiorari granted by Supreme Court in State v. Birmingham Beauty Shop, 6 Div. 727, 198 So. 435.
The agreed statement of facts upon which the case was tried is as follows:
"Agreed Statement of Facts"It is hereby stipulated and agreed by and between the parties in the above entitled cause that the following and none other are the facts:
"On October 1, 1935, The Birmingham Beauty Shop was a partnership composed of A. C. Ramsey and I. E. Wilcox, doing business in the City of Birmingham, Jefferson County, Alabama, hereinafter referred to as defendant.
"The Defendant holds itself out to the public and is engaged in the business of maintaining and operating what is generally known as a Beauty Parlor, or other place where hair dressing, facial treatment, manicuring or hair waving is done for a livelihood.
"A. C. Ramsey, one of the partners, personally is engaged in beauty culture work at the Birmingham Beauty Shop, located at 212 1/2 North 20th Street, Birmingham, Alabama, and ten other persons are engaged in like business and rendering like services at said address. A. C. Ramsey leases from the landlord the premises known as 212 1/2 North 20th Street, in the City of Birmingham, Alabama, a city of more than 60,000 inhabitants. A sign is displayed on the door of said premises, namely; 'The Birmingham Beauty Shop.' A. C. Ramsey, one of the partners, owns most of the equipment on said premises used by himself and the ten other persons engaged in said beauty culture work. The Defendant for the privilege of engaging in business, obtained a license from the State Board of Cosmetological Examiners, and a license from the City of Birmingham. The Defendant has paid $15.00 for a State and County license for operating a beauty shop at said address.
"For the year commencing October 1st, 1935, and ending September 30th, 1936, there were ten other persons on the premises leased by the Defendant under an agreement with the Defendant, engaged in giving various and sundry kinds of beauty treatment to the public generally. Those ten persons engaged in said beauty culture work were not servants or employees of the Defendant, but were independent contractors and operators, on their own, paying the Defendant a percentage of their income collected by them from their customers for the privilege of operating there.
"On December 4th, 1935, Defendant was duly and legally cited by the License Inspector of Jefferson County, Alabama, to appear before the Commissioner of Licenses of Jefferson County, Alabama, and show cause why it should not procure an additional license for the ten operators engaged in doing beauty culture work for the year commencing October 1st, 1935, a copy of said citation showing said service being filed with the commissioner of Licenses of Jefferson County, Alabama. Defendant failed to appear and make any showing or to procure said licenses in accordance with said citation.
"The said ten persons working on the premises leased by the Defendant, as independent contractors and operators, have not procured the license levied by Schedule 86 of the Revenue Acts of 1935, nor were same demanded."
Thos. S. Lawson, Atty. Gen., and John W. Lapsley, and J. Edw. Thornton, Asst. Attys. Gen., for appellant.
Each person engaged in the business of operating a beauty parlor shall pay an annual State and County license based on the number of operators so employed in giving hair dressing, facial treatments, manicuring or hair waving on the premises. Gen. Acts 1935, pp. 256, 447, § 348, Schedule 21. Every word in a statute must be given meaning and operation if possible. The word "so", as used in the schedule, must be given effect, as meaning "in the same manner". Elmore v. State, 24 Ala. App. 368, 137 So. 462; Montgomery v. Smith, 205 Ala. 557, 88 So. 671; Hawkins v. Louisville N. R. Co., 145 Ala. 385, 40 So. 293; 58 C.J. 779; Fuqua v. City of Mobile, 219 Ala. 1, 121 So. 696; Chesapeake O. R. Co. v. Patton, 9 W. Va. 648; Blanton v. State, 1 Wn. 265, 24 P. 439; Kephart v. Buddecke, 20 Colo. App. 546, 80 P. 501; State v. Ketterman, 89 Wn. 264, 154 P. 182. The legislature intended that the privilege license levied by Schedule 21 on beauty parlors should be graduated in accordance with the number of those engaged in beauty parlor work. Watson v. Clayton, 230 Ala. 59, 159 So. 481; State v. Seals Piano Co, 209 Ala. 93, 95 So. 451; Nat. Linen Service Corp. v. State Tax Comm., 237 Ala. 360, 186 So. 478; Powell Const. Written Instr. XXV; Am. Bar Asso. Journal, 185 (Mar. 1939); 2 Cooley, Taxation (4th Ed.) p. 1123. To determine the legislative intent in a statute, recourse may be had to consideration of public policy and the legislature's established policy as disclosed by the general course of legislation. Allgood v. State ex rel. Wilson, 20 Ala. App. 665, 104 So. 847, 849; Id., 213 Ala. 426, 104 So. 851; Caylor v. State, 23 Ala. App. 1, 121 So. 9; Id., 219 Ala. 12, 121 So. 12; City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159, Pappanastos v. State Tax Comm., 235 Ala. 50, 177 So. 158; State v. Stone, 237 Ala. 78; 185 So. 404; 5 Wealth of Nations (Adams Smith) (2d Ed.) 414; 21 Ency. Britannia (14th Ed. 1929) Taxation, p. 838; 25 Ency. Americana (N.Y. 1939) pp. 287-294. In ascertaining the legislative intent weight must be given to the practical effect which a proposed construction would have. Worthen v. State ex rel. Verner, 189 Ala. 395, 66 So. 686; Shepherd v. Clements, 224 Ala. 1, 141 So. 255; Abramson v. Hard, 229 Ala. 2, 155 So. 590. The intention of the legislature should not be defeated by a narrow construction based upon nice distinctions in the meaning of words. Thomason v. Court of County Com'rs, 184 Ala. 28, 63 So. 87; Kennedy's Heirs v. Kennedy's Heirs, 2 Ala. 571; Thompson v. State, 20 Ala. 54; Cocciola v. Wood-Dickerson Supply Co., 136 Ala. 532, 33 So. 856; Nunez v. Borden, 226 Ala. 381, 147 So. 166; Tennessee C., I. R. Co. v. State, 235 Ala. 152, 177 So. 905; Broaddus v. Johnson, 235 Ala. 314, 179 So. 215; State v. Dodd, 17 Ala. App. 20, 81 So. 356.
Wm. B. McCollough, of Birmingham, for appellee.
The schedule must be considered as a whole, and when so considered must be construed as it was in the court below. It was not the legislative intent to impose upon the operator of a beauty parlor a license for other persons not employed by him but operating independently of him and for themselves.
This is an appeal by the State from a judgment rendered in favor of the defendant (appellee) in an action at law for privilege license for the license year 1935-1936.
The case was submitted in the lower court on a complaint which claimed the privilege license for operating a "beauty parlor with ten operators" — levied under Schedule 21 of Section 348 of the Revenue Code of 1935. Gen. Acts 1935, pp. 256, 447.
Issue was taken on the complaint by a plea in short by consent of the general issue.
The case was tried upon an agreed statement of facts, which appears in the report of this case.
Schedule 21 of Section 348 of the Revenue Code of 1935, supra, reads in pertinent part as follows, to-wit: "Each person operating what is generally known as a Beauty Parlor, or other place where hair dressing, facial treatments, manicuring, or hair waving is done shall pay a license of ten dollars ($10.00) and for each operator so employed, as follows: In cities of more than sixty thousand (60,000) inhabitants, six dollars ($6.00)."
Aggressive, resourceful, and ingenious counsel for the State has treated us to a rather elaborate dissertation on the theory of taxation, as announced by Adam Smith; and has given to us a very learned disquisition — with ample citation of authorities — on the principles of statutory construction; all brought forth in his desire that we attribute to the little word "so," where it appears in Schedule 21 of Section 348 of the Revenue Code of 1935, supra, a meaning which would support the theory of the State in this litigation. But if we agreed with his argument as to the meaning of the word "so" — and it is indeed a brilliant argument — still, or yet, we do not think that would result in a reversal of the judgment.
To us it seems perfectly plain — as it did to the learned nisi prius judge — that the intention of the Legislature by the enactment of this Schedule 21 of Section 348 of the Revenue Code of 1935 was to exact from each person operating what is generally known as a Beauty Parlor, or other place where hair dressing, facial treatments, manicuring, or hair waving is done — a license of $10 (with, of course, $5 additional for the county) — and (to exact from each such person) for each operator so employed by said person "as follows," — i. e., here, $6.
And that concludes the matter for us.
If it be thought that the construction we have placed upon the said Schedule 21 operates to cause those working upon the premises of said "each [such] person operating what is generally known as a Beauty Parlor," etc. — but not employed by such person — to be able to ply their trade without being licensed, attention is called to Schedule 86 of Section 348 of the said Revenue Code of 1935, supra, which takes care of this situation.
All that other argument of the State's counsel as to the hardship, or burden, placed upon the license inspector, in placing upon him the duty of "ascertaining the legal conclusion of whether the particular operator occupied the relationship of master — servant or principal and independent contractor;" or the counsel's criticism of the 'holding by the trial court (as evinced in his judgment here under review) "that the privilege license for operating a beauty parlor depends upon the relationship between the operator of the shop and those engaged in doing beauty shop work on the premises" leaves us unimpressed.
We do not make the laws. We merely declare them.
The judgment is affirmed.
Affirmed.
Reversed and remanded on authority of State v. Birmingham Beauty Shop, 6 Div. 727, 198 So. 435.