Opinion
No. 34463.
February 24, 1941.
1. HAWKERS AND PEDDLERS.
Since a corporation could not itself actually peddle goods, it was not liable for privilege tax upon transient vendors of tobacco, under statute restricting the term "transient vendors" to persons who themselves actually peddle or sell and deliver (Laws 1940, ch. 120, secs. 1, 3, 221).
2. HAWKERS AND PEDDLERS.
Elimination of the word "natural" in subsequent enactment of statute imposing privilege tax upon each "natural person" doing business as a transient vendor or dealer did not make the statute applicable to corporations, in view of statutory definitions of "transient vendor" restricting the term to persons who themselves actually peddle or sell and deliver goods (Laws 1940, ch. 120, secs. 1, 3, 221).
3. COURTS.
A previous decision was not a precedent on a point not called to reviewing court's attention nor considered by such court in the previous decision.
APPEAL from the circuit court of Hinds county, HON. J.P. ALEXANDER, Judge.
McClendon Edmonds and Creekmore Creekmore, all of Jackson, for appellant.
The defendant is liable for the state tax.
Privilege Tax Code of 1940, Secs. 1, 221; Temple v. Summer, 51 Miss. 13; Prior v. State, 162 Miss. 602, 130 So. 850; Mathison v. Brister, 166 Miss. 67, 145 So. 358; Gully v. Joseph, 183 Miss. 662, 182 So. 814; Ellzey v. Smith, 159 Miss. 57, 132 So. 92; Canal Bank Trust Co. v. Brewer, 147 Miss. 885, 114 So. 127; Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514; Money v. Wood, 152 Miss. 17, 118 So. 358; White v. Miller, 162 Miss. 292, 139 So. 611; Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692.
Prior to the enactment of the 1940 law the tax was levied "upon each natural person." In the new statute the word "natural" was omitted, and there was added a new provision, namely, that the license should be issued in the name of the firm conducting the business. In deliberately making these changes in the statute the Legislature must have done so with the intention that in the future the tax should be imposed not only upon those individuals who engage in business as transient vendors, but also upon corporations or others, who by means of agents engage in precisely the same business. The statute defines the word "person" as including a corporation and defines the word "business" as including any act or activity, personal or corporate, engaged in for the purpose of gain or profit. Under these definitions a corporation is a transient vendor, if through agents it engages in the business. It is no answer to say that by the very nature of the occupation only an individual can be a transient vendor, because the Legislature has full power to define terms for itself, and to levy license taxes upon the exercise of the privileges as so defined.
Laws 1940, Chap. 120, Secs. 1, 3, 221; Chap. 21, Ext. Session 1935, as amended by Section 15 of Chap. 154 of the Laws of 1936 and by Section 14 of Chap. 117 of Laws of 1938; Prior v. State, 162 Miss. 602, 130 So. 850; Mathison v. Brister, 166 Miss. 67, 145 So. 358; Ellzey v. Smith, 159 Miss. 57, 132 So. 92. Lyell Lyell, of Jackson, for appellee.
The appellant, the owner of the tobacco products involved, was not a transient vendor within the meaning of the statute; and the liability, if any, was upon the individual who actually sold and delivered the merchandise.
Temple v. Sumner, 51 Miss. 13; Conard Furniture Co. v. Miss. State Tax Com., 160 Miss. 185, 133 So. 652; 59 C.J. 948, Sec. 567; Ann. Cas., 1914B, 179, note; Mathison v. Brister, 166 Miss. 67, 145 So. 358; Gully v. Joseph, 183 Miss. 662, 184 So. 818.
The term "transient vendor" is defined in the act of 1940 in identically the same words as in the act of 1936, involved in the Joseph case, which must control the same language in the 1940 act.
The inclusion of the word "natural" before "person" in the acts of 1935, 1936, and 1938, and its omission from the act of 1940 neither added nor substracted anything of importance in determining who was liable for the privilege taxes.
The only question involved in Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692, was whether or not the entire privilege tax statute was void because it exempted confederate soldiers from liability for all privilege taxes. The question at issue is therefore not affected by said decision.
Lotterhos Travis, of Jackson, amici curiae.
The tax liability, if any, is not upon the employer, but upon the agent or person actually engaged in vending merchandise.
Temple v. Sumner, 51 Miss. 13; Conard Furniture Co. v. Miss. State Tax Com., 160 Miss. 185, 133 So. 652; Mathison v. Brister, 166 Miss. 67, 145 So. 358; Sec. 221, Chap. 120, Laws of 1940; Gully v. Joseph, 183 Miss. 662, 184 So. 818.
Since the tax is imposed upon each transient vendor, and since the term "transient vendor" is defined in identically the same way in the act of 1940 as in the act of 1936, it necessarily follows that the decision of the court in Gully v. Joseph, 183 Miss. 662, 184 So. 818, will control when identically the same proposition is presented now under the 1940 act.
Argued orally by Henry Edmonds and Rufus Creekmore for appellant, Garland Lyell for appellee, and by Fred Lotterhos amicus curiae.
The appellant attempted but was not permitted by the court below to recover from the appellee a privilege tax imposed by Section 221, Chapter 120, Laws of 1940. That chapter provides that the term "person" shall include "any individual, firm, partnership, joint adventure, association, corporation, estate, trust or any other group or combination acting as a unit . . . unless the intention to give a more limited meaning is disclosed by the context." Section 1. Section 3 of the chapter imposes the privilege taxes thereafter specified. Section 221 imposes "Upon each person doing business as a transient vendor or dealer, as defined in this section, and upon which a privilege tax is not specifically imposed by another section of this act, a state-wide tax for each county according to the following schedules: . . . (o) Upon each transient vendor, or dealer of cigarettes, cigars or other tobaccos ........... $50.00."
The appellant's declaration alleges that the appellee "at all times since the 1st day of June 1940 has been engaged in business in each of the eighty-two counties of the State of Mississippi and in each of the two hundred municipalities listed on `Exhibit A,' and in each county in the Yazoo-Mississippi Delta Levee District, as a transient vendor or dealer of cigarettes, cigars and other tobaccos," without paying the privilege tax required therefor by Section 221, Chapter 120, Laws of 1940; and a similar tax imposed by the municipalities and the Yazoo-Mississippi Delta Levee District. A demurrer to this declaration was sustained, and on the appellant's declining to plead further, the cause was dismissed.
Section 221, Chapter 120, Laws of 1940, appeared in Chapter 154, Laws of 1936, as Section 225 thereof; and in Gully v. Joseph et al., 183 Miss. 662, 184 So. 818, 819, this Court held that it applied only to "the individual actually peddling the goods," and not to the person by whom he was employed so to do. This appellee here, being a corporation, of course cannot itself actually peddle goods, so that it is not liable for the tax here imposed unless there is such a difference between Section 221, Chapter 120, Laws of 1940, and Section 225, Chapter 154, Laws of 1936, as to lift the former without the orbit of the case just cited. We have been unable to discover any such difference.
It is true that Section 225, Chapter 154, Laws of 1936, imposed the privilege tax "upon each natural person doing business as a transient vendor, or dealer, as defined in this section," and Section 221, Chapter 120, Laws of 1940, imposes the tax "upon each person doing business as a transient vendor, or dealer, as defined in this section." The elimination of the word "natural" before the word "person" in the second statute is of no consequence here, for the reason that the eight definitions of a transient vendor in both of the sections are the same, and restrict the term to persons who themselves actually peddle or sell and deliver goods, wares and merchandise. Whether the tax imposed by Section 3849, Code of 1906, on peddlers covered the person for whom the peddler was selling the goods peddled was not called to the attention of the Court or considered by it in Adams v. Standard Oil Company, 97 Miss. 879, 53 So. 692, consequently, that case is not a precedent here.
Affirmed.