(Italics by writer of this opinion.) To the same effect see Fleischmann Company v. Conway, 168 La. 547, 122 So. 845, wherein it was again found that the tax in reality was imposed upon "dealers in yeast." The present statute, at the beginning of section 3, assailed here, says that the tax is imposed upon "every person, firm, corporation or association of persons engaged in the State * * * in any business or occupation, which * * * uses in the conduct of such business or occupation" such power.
The realities and substance of the tax must be examined, not its form. City of New Orleans v. Scramuzza, supra; City of New Orleans v. Christian, 229 La. 855, 87 So.2d 6 (1956); Fleischmann Co. v. Conway, 168 La. 547, 122 So. 845 (1929); Lionel's Cigar Store v. McFarland, 162 La. 956, 111 So. 341 (1927). A sales and use tax is a tax on the privilege of selling or purchasing and using or consuming tangible personal property.
This case so thus attacked has had in Mississippi naught but approval, elsewhere more approval than criticism. Locke v. Dantzler Lumber Co., supra, Hattiesburg Grocery Co. v. Robertson, supra; Barnes v. Jones, supra; State ex rel. Knox v. Gulf, M. N.R. Co., supra; City of Jackson v. Deposit Guaranty Bank Trust Co., supra; Southern Package Corporation v. State Tax Commission, supra; Stone v. General Contract Purchase Corporation, supra; Dawson v. Kentucky Distilleries W. Co., 255 U.S. 294, 65 L.Ed. 646; Union Sulphur Co. v. Reed, 249 F. 172; Freiberg Co. v. Dawson, 274 F. 420; Northern Commercial Co. of Alaska v. Territory of Alaska, 289 F. 786; Ohio Oil Co. v. Wright, supra; Sheip Co. v. Amos, 100 Fla. 863, 130 So. 699, 705; Floyd Fruit Co. v. Florida Citrus Com., 128 Fla. 565, 175 So. 248, 250; Florida Sugar Distributors v. Wood, 135 Fla. 126, 184 So. 641, 644; Lionel's Cigar Store v. McFarland, 162 La. 956, 111 So. 341, 344; Fleischmann Co. v. Conway, 168 La. 547, 122 So. 845, 848; State ex rel. Porterie v. Hunt, supra; Republic Iron Steel Co. v. State, 204 Ala. 469, 86 So. 65, 68; Redfield v. Fisher, supra; Flynn v. City County of San Francisco, 18 Cal.2d 10, 115 P.2d 3, 6; Diefendorf v. Gallet, 51 Idaho 619, 10 P.2d 307, 311; Foster Creighton Co. v. Graham, 154 Tenn. 412, 285 S.W. 570; Floyd v. Miller Lumber Co., 160 Ark. 17, 254 S.W. 451, 458, 32 A.L.R. 811, 817; Sims v. Ahrens, supra; Craig v. E.H. Taylor Sons, 192 Ky. 36, 232 S.W. 395; County Com'rs. v. English (Md.), 35 A.2d 135, 142; Peoples Natural Gas Co. v. Pittsburgh, 317 Pa. 1, 175 A. 691; Reif v. Barrett, 355 Ill. 104, 188 N.E. 889, 892; Flynn, Welch Yates v. State Tax Commission, supra.
This text is abundantly supported by the cases cited. See, also, 61 C.J. 81, 82, 83, § 10; Fleischmann v. Conway, 168 La. 547, 122 So. 845; Ex parte Asotsky, 319 Mo. 810, 5 S.W.2d 22, 62 A.L.R. 95 and note; Lionel's Cigar Store v. McFarland, supra; Exchange Drug Co. v. State Tax Com., 218 Ala. 115, 117 So. 673. [13-15] It is common knowledge that at the time the legislature enacted chapter 78 there were many of our citizens unemployed and others actually in distress for the common necessities of life.
So far as we are informed, these legislative provisions have never been attacked. This court, in numerous cases, has upheld the validity of tax statutes imposing the duty of collection on officials other than the sheriffs or the state tax collector of the city of New Orleans. Among these cases are the following, viz.: Gulf Refining Co. v. McFarland, 154 La. 251, 97 So. 433; Lionel's Cigar Store v. McFarland, 162 La. 959, 111 So. 341; Fleischmann Co. v. Conway, 168 La. 547, 122 So. 845; State v. Federal Sales Co., 170 La. 893, 129 So. 520; State v. Tri-State Transit Co., 173 La. 682, 138 So. 507; State v. Armbruster, 174 La. 914, 142 So. 125; State v. Violet Oil Co., 176 La. 651, 146 So. 322; Conway v. Lane Cotton Mills Co., 178 La. 626, 152 So. 312. It is true, the question raised in this case was not specifically presented in those cases.
In the light of the jurisprudence of this state, respondent's contention is falacious. The validity of tax statutes which impose the duty of collecting the tax on others than the sheriffs or state tax collector for the city of New Orleans has been maintained by this court in seven recent decisions, viz.: Gulf Refining Co. v. McFarland, 154 La. 251, 97 So. 433; Lionel's Cigar Stores v. McFarland, 162 La. 957, 111 So. 341, 345; Fleischmann Co. v. Conway, 168 La. 547, 122 So. 845; State v. Federal Sales Co., 170 La. 893, 129 So. 520; State v. Tri-State Transit Co., 173 La. 682, 138 So. 507; State v. Armbruster et al., 174 La. 914, 142 So. 125; State ex rel. Porterie v. Violet Oil Co., 176 La. 651, 146 So. 322. In Lionel's Cigar Stores v. McFarland, the court said:
The constitutional clause exempting "all public property" from taxation follows immediately the clause limiting the rate of the perennial ad valorem property tax. It is followed by exemptions of other property which, if taxable at all, would and could be subjected only to the aforesaid perennial ad valorem property tax. It has no application to any other tax. The tax herein involved is clearly a tax upon the sale, distribution, or use of the gasoline. It is therefore an excise tax. Gulf Refining Co. v. McFarland, 154 La. 251, 97 So. 433; Lionel's Cigar Store v. McFarland, 162 La. 956, 111 So. 341; Fleischmann Co. v. Conway, 168 La. 547, 122 So. 845; State v. Johnson, 173 La. 680, 138 So. 503. And exemption from a property tax does not include exemption from an excise tax. City of Portland v. Kozer, 108 Or. 375, 217 P. 833, 835, citing 1 Cooley on Taxation (3d Ed.) page 357; Matter of Merriam's Estate, 141 N.Y. 479, 36 N.E. 505; U.S. v. Perkins, 163 U.S. 625, 16 S. Ct. 1073, 41 L. Ed. 287; 37 Cyc. 1574. IV.
The tax is laid, not upon the gasoline, but upon the right or privilege of selling, using, or consuming it; the amount to be paid being based upon the quantity involved. Lionel's Cigar Store v. McFarland, 162 La. 956, 111 So. 341; Fleischmann Co. v. Conway, 168 La. 547, 122 So. 845. The title of the Act 6 of Extra Session of 1928, page 14, reads in part:
It is urged that, in view of the manner of shipment, the sales were not completed until the drafts were paid and the bills of lading surrendered, and, as these things were done in this state, that the sales should be considered as sales made in Louisiana, and hence that liability for the tax arises. In Fleischman Co. v. Conway, Supervisor, 168 La. 547, 122 So. 845, it was held that the tax levied by Act No. 4 of 1928 (Ex. Sess.) was a license tax, and that the mere handling, possessing, and storing of malt would not create a liability for the tax, but that it is the handling for sale, the selling, and distributing of malt that creates liability for the tax. Therefore, the question is fairly presented as to whether the sales were made in this state.
The sole question presented in this case is whether the tax imposed by Act No. 4 of the Legislature at its extra session in 1928 is a property or a license tax. In the case of the Fleischmann Co. v. Conway (No. 29808 on the docket of this court), 122 So. 845, we held, in an opinion this day handed down, that the tax was not a property tax but a license tax. Ante, p. 547.