State v. Milam Grain & Milling Co.

BRUNOT, J. This appeal is from a judgment on a rule condemning the defendant to pay a retail license to the state for the years 1930, 1931, and 1932, with interest and attorney’s fees. The sum of the judgment is $540 with 2 per cent, per month on $180 from March 1, 1930, until paid, like interest on $180 from March 1, 1931, until paid, like interest on $180 from March 1, 1932, until paid, and 10 per cent, of the sum of the principal and interest as.attorney’s fees. The facts are admitted. Defendant sells its merchandise in unbroken packages only, to all purchasers, without inquiry as to whether the purchaser is a dealer or con- ■ sumer. Its defense is that it does not bréale the original packages and, therefore, it is not. a retailer. It alleges that it has paid the required wholesale license for the years 1930, 1931, and 1932; that its retail business is-conducted at locations other than its manufacturing site; and that each of its retail establishments has paid a retail license for said years. The question presented is whether or not a wholesaler who sells in unbroken packages to consumers, as well as to dealers, for resale, is subject to a retail license. Section 7 of Act No. 205 of 1924, as amended by Act No. 132 of 1928, defines a “wholesaler” as follows: “Provided, that no person or persons shall be deemed wholesale dealers unless he or they sell by the original or unbroken package or barrel only; and provided further, that no-'person or persons shall he deemed wholesale dealers unless he or they sell to dealers for re-sale. If they sell in less quantities than original unbroken package or barrel, they shall be considered retail dealers and pay license as such.” (Italics by the court.) Counsel for appellant contends that license laws are strictly construed. They cannot be *541 extended by construction, and omissions cannot be supplied by courts. This rule was recognized and properly adhered to in State v. Norman Mayer & Co., 170 La. 237, 127 So. 743. In that case it was found that the vocation sought to be taxed was not included in any provision of the license laws of the state. That is not true of this case. In our opinion, the provision of section 7 of the license act of 1924, quoted supra, admits of but one interpretation, viz., that a wholesaler who sells in unbroken packages direct to consumers, or one who sells in broken packages to dealers, for resale, is subject to the payment of a retail license. There is nothing in this record to indicate the volume of retail business done by the appellant, but the sum of the license claimed is set forth in a properly attested rule, and, therefore, the burden was upon the appellant to show that fact. Having omitted to do so, we have no alternative and must affirm the judgment appealed from. EOr the reason assigned, the judgment is affirmed, at appellant’s cost. O’NIELL, C. J., dissents and hands down reasons.