Opinion
No. 33428.
December 5, 1938.
HAWKERS AND PEDDLERS.
The obligation to pay privilege tax imposed on transient vendors and peddlers was on persons who peddled produce in trucks as agents for a firm engaged in the wholesale fruit and vegetable business, rather than on members of the firm, who owned the trucks (Laws 1934, ch. 118, sec. 233; Laws 1935, Ex Sess., ch. 20, sec. 225; Laws 1936, ch. 154, p. 143, sec. 225).
APPEAL from the chancery court of Hinds county; HON. V.J. STRICKER, Chancellor.
Alexander Satterfield and Cecil Heidelberg, all of Jackson, for appellant.
The sole question involved herein is whether a partnership can be a transient vendor or dealer and liable for the privilege licenses due the state as such.
The privilege tax laws involved are Chapter 118 of Laws of 1934, Chapter 20 of the Laws of 1935 and Chapter 154 of the Laws of 1936.
If A. Joseph Company, a partnership composed of Albert and Ellis Joseph, cannot be held liable for a privilege tax as transient vendor or dealer under the statutes and under the charges set out in the bill of complaint, then the case should be affirmed; otherwise, the case should be reversed and the case remanded for trial.
We would call special attention of the court to sub-section (o) of Section 225 of the privilege tax law which says: "Provided, however, that where any person subject to the payment of the tax imposed by this section makes use of more than one vehicle in carrying on such business, the tax herein imposed shall be paid for each vehicle used in carrying on such business."
The above quotation would clearly indicate that the Legislature contemplated that the words "vendors or dealers" would include persons who used more than one vehicle. This would exclude the construction of the act as being limited to only a natural person. No one man can operate several vehicles in various counties at the same time, and consequently this section (o) of the act clearly implies that the person who shall be taxed is the owner of, or the ones that make use of, the various vehicles in carrying on such business.
Certainly the Legislature did not intend that only one individual or the party who actually drives the truck and makes the sale and delivery shall be considered as a transient vendor or dealer, and he alone liable for the tax.
We are frank to admit that we find no Mississippi case that decides the issue here presented directly, but we refer the court to the following Mississippi cases which by analogy should give the court some enlightenment on the question.
Temple v. Sumner, 51 Miss. 13; 37 C.J. 266; Ellzey v. Smith, 132 So. 92.
If corporations can be transient vendors, then we see no reason why partnerships should not likewise be held to be transient vendors or dealers. A corporation can only act through its agents or employees who alone can make the actual sale and delivery of the product, and therefore, it is clear that the Legislature did not intend to limit the application of its definition of transient vendors or dealers solely to a natural person.
Mathison v. Brister, 145 So. 358; Temple v. Sumner, 51 Miss. 13; Gully v. Alexander, 158 So. 201.
It will be well to notice that the Legislature has broadened the scope under which such privilege taxes are applied by adding the section "transient vendors or dealers (Peddlers)." The word "dealer" would aptly cover some one who was selling through agents acting for him. The word "peddler" ordinarily refers to one man.
94 A.L.R. 1076; Mathison v. Brister, 145 So. 358, 166 Miss. 67.
We respectfully submit that a reasonable interpretation of the privilege tax acts in force and the construction of similar acts shown by the Mississippi decisions hereinbefore referred to, the words "traveling vendor or dealer" are not limited solely to the person who actually makes the sale and the delivery of the produce, but also applies to the one who is engaged in the business and who owns the trucks and for whom the sales are made.
Howie, Howie McGowan, of Jackson, for appellee.
The bill of complaint does not claim that Albert Joseph or Ellis Joseph, the members of the partnership, at any time peddled goods at any place, but to the contrary it alleges that the agents and employees of Albert Joseph and Ellis Joseph did peddle from place to place and person to person the goods of the partnership.
To begin with, each section of the privilege tax laws of 1932, 1934, 1935 and 1936; Section ____, Acts of 1932; Section 233, Chapter 118, Acts 1934; Section 225 of Privilege Tax Laws 1935; and section 225, Chapter 154, Acts 1936, each state: "Upon each natural person doing business as a transient vendor or dealer as defined in this section, etc., a state tax for each county according to the following schedule."
We do not see how the Legislature could have more plainly stated that the person who was doing the selling was the one to pay the privilege tax, but in Section 257, Acts of 1934, and Section 249, Acts of 1935, the acts provide: "The privilege license herein provided shall be and constitute a personal privilege to the person named therein, to conduct that business specified and the license shall not be transferrable to any other person and shall be construed to limit to the county and location specified therein, the person named in the license in conducting the business and exercising the right named," etc.
Section 271, Acts of 1934, and Section 263, Acts of 1935, prescribe a penalty as follows: "Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $500.00 or imprisoned in the county jail not exceeding six months, or both, which fine and imprisonment to be within the discretion of the court within the limitation aforesaid."
The lawmakers not only said who shall pay the privilege tax, namely the one who actually does the selling, but it provides a penalty to prevent any infringement of this act.
If the law were other than this then any corporation who desire to go in the peddling business, or any individual who desired to do extensive peddling, would pay one license and send out, if profitable, hundreds of agents and pay only one license. The Legislature clearly intended to prevent any such contingency arising by providing that each and every person, whether principal or agent, if he become a peddler must pay peddler's license, and that only those who actually peddle would be due to pay peddler's license.
Ellzey v. Smith, 122 So. 134; Mathison v. Brister, 145 So. 358.
Argued orally by James Alexander, for appellant, and by J.H. Howie, for appellee.
Appellees, A. Joseph Company, were, during the years 1932 to 1937, inclusive, and are now, engaged in the wholesale fruit and vegetable business, including other produce, with their sales and distributive store situated in Jackson. During the 1932-37 period, they sent out agents with trucks over several counties in the central part of this state loaded with their goods for sale. Such agents peddled their goods from place to place. Neither appellees, nor their agents, paid the $200 privilege tax for each county for engaging in such business, provided by Chapter 154 of the Laws of 1936, and the statutes which that act amends. The state tax collector filed the bill in this case to recover the aggregate of those taxes amounting to $22,800. Appellees demurred to the bill; the demurrer was sustained and the state tax collector declining to plead further, a final decree was entered dismissing the bill. From that decree, he appeals to this Court.
The pertinent part of the bill is in this language: "That the said defendants, Albert Joseph Ellis Joseph have since January 1st, 1932 to the present time owned and operated in connection with their said businesses various and sundry trucks which are used for the hauling and delivery of all products sold or offered for sale by them.
"That the said defendants, Albert Joseph and Ellis Joseph, by and through their authorized agents acting by and with the consent and knowledge of the said defendants and under their specific directions, orders and instructions have from the year January 1st, 1932 to June 1st, 1937 extensively operated as transient vendors of fruits, vegetables and other produce in Hinds County, Mississippi and other counties hereafter set out. That in their operation as said transient vendors or dealers that the said Albert Joseph and Ellis Joseph operating as A. Joseph Company at various and sundry times for the period aforesaid, carried or transported fruits, vegeables and other produce in and about the County of Hinds and the other counties hereinafter to be shown and peddled and sold the same indiscriminately to such purchasers as they might find by solicitation, peddling or display, going from dealer to dealer, from place to place, and selling and offering to sell at wholesale and retail the goods, wares and merchandise stated above; that the said Ellis Joseph and Albert Joseph also maintained a regular place of business open at all times at regular business hours in the said City of Jackson and elsewhere than at such place of business, to-wit: In the counties hereinafter alleged did sell and offer for sale and, at the time of such sale and offer, deliver said goods, wares and merchandise in the manner aforesaid. That as such transient vendors or dealers of fruit, vegetables and other produce the said Ellis Joseph and Albert Joseph were subject to a privilege tax according to the laws of the State of Mississippi for each truck so used by them in each County and for each year within which each of said trucks were so used in their operations as transient vendors or dealers (peddlers)."
The privilege tax statutes involved are Chapter 118 of the Laws of 1934 (section 233), and Chapter 20, of the Laws of 1935, Ex. Sess., sec. 225, and Chapter 154 of the Laws of 1936, sec. 225, p. 143. The applicable parts of these statutes are the same in all three of them. They are contained in certain provisions of Section 225, Chapter 154, of the Laws of 1936, p. 143, which follow:
"Transient vendors or dealers (peddlers).
"Sec. 225. Upon each natural 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 tax for each county according to the following schedules:
. . . . . .
"(j) Upon each transient vendor, or dealer of fruits, vegetables, and other produce ................ $200.00
. . . . . .
"(n) . . . Provided, that a transient vendor, or dealer traveling on foot, or with push cart, or bicycle, or with a pack animal, shall pay one-half of the amount set out in the above schedule.
"Provided, that in making application for the license required by this section, the applicant shall state whether or not he intends to exercise the privilege taxed in more than one county, and if so, he shall procure a license for each of such counties, and shall have upon his person, or in his possession, the license for each county before exercising the privilege therein.
"Provided, that the provisions of this section shall not apply to transient vendors, or their agents, or representatives, in the sale or delivery of gasoline, oil or similar petroleum products when drawn, conveyed and distributed from a stock maintained at a warehouse, oil depot, distribution station, or established place of business in this state, upon which has been paid all privilege taxes required, when the same is sold, conveyed, or distributed to another station owned, leased, contracted or commissioned by the owner of the said depot, warehouse, distribution station, or established place of business.
. . . . . .
"(o) Provided, however, that where any person subject to the payment of the tax imposed by this section makes use of more than one vehicle in carrying on such business, the tax herein imposed shall be paid for each vehicle used in carrying on such business."
The question is whether the liability for the privilege taxes is upon appellees or its peddlers, the truck drivers. We are of the opinion that under the authority of Temple v. Sumner, 51 Miss. 13, 24 Am. Rep. 615, the obligation was on the truck drivers. That decision is directly in point. So far as this question is concerned, there appears to be no substantial difference between the statutes involved in that case and those involved in the present case. The Court held in that case that the license tax imposed was a personal privilege conferred alone on the individual actually peddling the goods, and who alone was liable for the tax; that it was the occupation taxed, not the goods. The opinion in that case concludes in this language: "The statute has a twofold purpose, one is revenue, the other is to protect the resident merchant and trade. If the construction contended for by the plaintiff should be adopted, the door would be opened wide to defeat the policy of the law. Mr. Sumner need only take out license for himself, and under it, put a half dozen canvassers in the field to operate under it in the sale of his wares."
We do not think Ellzey v. Smith, 159 Miss. 57, 132 So. 92; or Mathison v. Brister, 166 Miss. 67, 145 So. 358; or Gully v. Alexander, 171 Miss. 567, 158 So. 201 in point here.
Affirmed.