Planters' Lumber Co. v. Wells

Anderson, J., delivered the opinion of the court. Appellees, W. S. Wells, sheriff and tax collector of Hinds county, and A. J. Johnson, city tax collector of the city of Jackson, each brought a separate action in the First district of the circuit court of Hinds county against the appellant, Planters’ Lumber Company, to recover, under chapters 73 and 74, Laws of 1908 (Hemingway’s Code, section 6589), and chapter 104, Laws of 1920 (Hemingway’s Code Sup., section 6589), for Hinds county and the city of Jackson, respectively, privilege taxes alleged to be due them by appellant on an alleged “store” operated by appellant in the city of Jackson, in Hinds county, for the period beginning September 1, 1918, and-in- *288 eluding September 1, 1925. By agreement of the parties tbe two cases were consolidated and tried together on agreed facts before the judge, sitting both as judge and jury. 'A judgment was rendered in favor of appellees, from which judgment appellant prosecutes this appeal. In addition to the general issue, appellant pleaded four special pleas. The view of the case we take renders it unnecessary to notice any of the special pleas except the first. Leaving off the caption and the name of the appellant’s attorney signed thereto, a copy of that plea follows: “And comes the defendant, Planters’ Lumber Company, by Geo. Butler, its attorney, and for further plea in this behalf says: That the plaintiff ought not to have and maintain its action aforesaid against defendant, because it says that on September 1, 1918, and for many years prior thereto, and at all times since said date, the defendant has owned, conducted, and operated a lumber yard, in the city of Jackson, Hinds county, Miss., and duly paid the maximum privilege tax imposed upon ‘lumber yard’ by chapter 73, Laws of 1908, as subsequently amended by section 34, chapter’ 104, Laws of 1920; that in the conduct of its said business the defendant owned and conducted in said city, about one-quarter of a mile north of the main street and business section thereof, a business commonly known and called a lumber yard, on about one square of land which it owned, and upon which was and is situated an office building, wherein it kept and keeps its records, books, and papers and its clerical force, and upon which it has constructed and maintained during all the times aforesaid, and still maintains, a railroad side track leading from the main line of the Illinois Central Bailroad to the rear of said premises, -which it used and uses in and about the receipt and delivery of lumber and other materials hereinafter mentioned, acquired, handled, and sold in the conduct of its said business, and two lumber sheds and lumber ramps used and maintained *289 for the receipt and storage of lumber handled by the defendant in its business, and other commodities hereinafter mentioned, and had and has 'walled up a portion of one of said sheds and has used and uses the same in the receipt, storage, and sale of transom, doors, and windows, composition shingles and roofing, cement, lime, and plaster, and what is commonly known as builder’s hardware, consisting of sash weights and cords and pulleys, grates, nails, door and window hinges, and other building-hardware similar in kind, and also other items of building-supplies and material similar to that hereinbefore enumerated, and also on said premises erected and maintained lumber yards and ramps upon which lumber and shingles and material of like kinds wefie and are kept and stored; that in the operation of said business the defendant bought and buys large quantities of lumber from various and sundry sawmills located away from Jackson,Miss., and sold and sells same both at wholesale and retail-; that practically all of the lumber bought and handled by the said defendant was and is brought into said yard and stored, and, when sold, delivered from said yard to its customers; that, in addition to the lumber sold and delivered by the defendant as aforesaid, it bought and buys, and stored and stores, upon said premises, and sells and delivers therefrom, the building material and supplies above mentioned in connection with said 'lumber yard business, and not otherwise; that seventy-five per cent in value of all materials bought and sold by the defendant consists of lumber and ten per cent shingles, laths, sash, doors, and windows and articles of like kind, making a total of approximately eighty-five per cent in value of all materials handled and sold by defendant as aforesaid consisting of lumber, sash, doors and windows, and articles of like kind, and the remaining fifteen per cent consisting of other building materials. “That prior to 1885 and continuously since said date, lumber yards in the state of Mississippi in the usual and customary course of trade and business have handled *290 and handle lumber, shingles, laths, sash, doors, windows, and other articles of like kind, and the other building material aforesaid, as- a part and parcel of the lumber yard and lumber yard business, and during said time the lumber yard business consisted of dealing in the various kinds of building materials aforesaid, and that this custom and course of business and trade, during the time aforesaid, was well known and established in the state of Mississippi and well known and established when the legislature of said state imposed the first privilege tax upon lumber yards, and has continued to be so well known and established continuously since said date; that prior to the imposition of a privilege tax upon lumber yards as such the same were considered as stores within the meaning of the privilege tax laws of this state, and so paid upon, but that the same have not been considered as stores within the meaning of the privilege tax laws of the state of Mississippi, since a privilege tax was first imposed upon lumber yards in 1890, or prior thereto; that defendant has conducted and conducts no business, has conducted and conducts business in no way, and has kept and keeps, and stored and stores, and sold and sells, no articles of merchandise, other than that in the way hereinbefore set forth, and therefore avers that it is not liable for the payment of a fax as a store in the business conducted by it, and this defendant is ready to verify.” To the first plea appellees interposed a demurrer, which was sustained. The case thereupon was • tried on the general issue, and agreed facts embodied in writing and made a part of the record. For the puipose of the question we decide — which is the main question in -the case- — • it becomes necessary to set out only paragraph 3 of the agreed- facts: “That during the time mentioned in the declaration the business of defendant, conducted by the defendant, was what is commonly known and called a lumber yard business. That during the time mentioned in the declaration seventy-five per cent in value of all materials *291 bought and sold by defendant consisted of lumber, ten per cent wooden shingles, laths, sash, doors, and windows and articles of like land, making a total of eighty-five per cent in value of all materials handled and sold by defendant as aforesaid, consisting of lumber, sash, doors, and windows and articles of like kind, and the remaining fifteen per cent consisting of other building mate.rials, such as composition shingles, roofing, cement, lime, and plaster, and what is commonly known as builder’s hardware, consisting of sash weights and cord, pulleys, grates, nails, door and window hinges, and other building hardware similar in kind, and other items of building supplies and material not included in such articles as lumber, roofing, shingles, laths, sash, doors, and windows, and articles of like kind, hereinafter called ‘other materials.’ ” For the period involved (beginning with September 1,1918, and including September 1,1925) privilege taxes for carrying on the lumber business were covered by section 8 of chapter 73, Laws of 1908, sections 2 and 3 of chapter 74, Laws of 1908 (Hemingway’s Code, sections 6542 to 6544, inclusive), and sections 34 and 35 of chapter 104, Laws of 1920 (Hemingway’s Supp. sections 6542 and 6544), which statutes follow: “6542. (3837) Lumber Yards. — 8. On each lumber yard, whose annual sale exceeds one-half million feet of lumber, one hundred dollars. Same, on each lumber yard whose annual sales are less than one-half million feet, but exceeds two hundred and fifty thousand feet, fifty dollars. “Same, on each lumber yard whose annual sales exceed one hundred thousand feet, but do not exceed two hundred and fifty thousand feet, twenty dollars. “6543. Lumber Dealers or Brokers. — 2. On each lumber dealer or broker whose annual sale of lumber exceeds twenty million feet, one hundred fifty dollars. *292 “Same, when annual sale of lumber exceeds ten million feet and does not exceed twenty million feet, one hundred dollars. “Same, when annual sale of lumber exceeds five million feet but does not exceed ten million feet, fifty dollars. ‘ ‘ Same, when annual sale of lumber is five' million feet or less, twenty-five dollars. “Provided, that any one paying a privilege tax to operate a lumber yard shall not be liable to a privilege tax as a lumber dealer or broker. “6544. Lumber Buyer. — 3. On each person or firm engaged in buying lumber in this state,, twenty-five dollars. “But this shall not apply to an agent buying for a lumber yard on which a privilege tax is paid. “Provided, this shall not apply to the owner of a lumber yard or to a lumber dealer or broker paying a privilege license as. such in this state. “6542. (3837) Lumber Yards. — 34. On each lumber yard whose annual sale exceeds one-half million feet of lumber, two hundred dollars. “Same, on each lumber yard whose annual sales are less than one-half million feet, but exceed two hundred and fifty thousand feet, one hundred dollars. “Same, on each lumber yard whose annual sales do not exceed two hundred and fifty thousand feet, twenty dollars. “6544. Lumber Buyer. — 35. On each person', firm, or corporation engaged in buying lumber in this state, twenty-five dollars. “But this shall not apply to any person or firm who. has paid a privilege tax for buying lumber as an incident to some other business.” During the period involved, there were also privilege taxes imposed on stores by chapter 73, Laws of 1908 (Hemingway’s Code, section 6589), and section 59 of chapter 104, Laws of 1920 (Hemingway’s Supp., section 6589). *293 For all the years appellant has carried on its business, it has paid privilege• taxes on a “lumber yard.” Appellees contend that, because of the fact that appellant, in connection with its lumber yard business, kept and sold shingles, laths, sash, doors, windows, and other building materials, it was liable to and should have paid privilege taxes on a “store,” as well as a “lumber yard.” Appellant by its special plea set up, and the agreed facts sustained the allegation of the plea, that during the period involved appellant conducted in the city of Jackson a lumber yard; that it was a business commonly known as a lumber yard, and was so known in 1908 when chapters 73 and 74 of the Laws of 1908 (Hemingway’s Code, sections 6-542 to 6544, inclusive) were enacted; that seventy-five per cent of all the material bought and sold by appellant consisted of lumber; that ten per cent consisted of wooden shingles, laths, sash, doors, and articles of like kind, making a total of eighty-five per cent; and the other fifteen per cent of building materials, such as composition shingles, roofing, cement, lime, and plaster, and what is commonly known as builder’s hardware, consisted of sash weights and cord, pulleys, grates, nails, door and window hinges, and other building* hardware similar in kind. The agreed facts state the common understanding of the character of the business carried on by appellant in this language: “That during the time mentioned in the declaration, the business of the defendant conducted by the defendant was what is commonly known and called a limber yard business.” (Italics ours.) Then the agreement goes on and sets out, in detail, the proportions of each kind of material, as above shown. In determining the question whether appellant was liable for privilege taxes on a store, as well as on a lumber yard, the principle of law should be kept in mind that laws imposing privilege taxes are liberally construed in favor of the person sought to be charged with such taxes, and therefore strictly construed as against the *294 claim of the state or any of its political subdivisions for such taxes. Ex parte Taylor, 58 Miss. 478, 38 Am. Rep. 336; Railroad Co. v. State, 62 Miss. 105; Bell v. Kerr, 80 Miss. 177, 31 So. 708; Wilby v. State, 93 Miss. 767, 47 So. 465, 23 L. R. A. (N. S.) 677.; Bluff City Railway Co. v. Clark, 95 Miss. 689, 49 So. 177; State v. Grenada Compress Co., 123 Miss. 191, 85 So. 137; Sperry v. Harbison, 123 Miss. 674, 86 So. 455. The legislature, in imposing privilege taxes upon lumber yards, is presumed to have adopted the common understanding- of what constituted a lumber yard. In Mitchell v. City of Meridian, 67 Miss. 644, 7 So. 493, in which case there was involved the construction of the statute imposing a privilege tax on sewing machine agencies, the court said, among other things: “Privileges are taxed in reference to the known course of business. ’ ’ x In Carney v. Hamilton, 89 Miss. 747, 42 So. 378, the court had under consideration the statute imposing a privilege tax on each depot for -the distribution or shipment of Coca-Cola. Carney operated a wholesale grocery business, and in his place of ’business kept for sale flour, meal, corn, oa.ts, and other things usually kept by wholesale grocers. ín addition, he kept and sold, in case lots, Coca-Cola. The question was whether Carney was liable for a privilege tax on a depot for the distribution or shipment of Coca-Cola in addition to his privilege tax for conducting the business of a. wholesale merchant. The court held that the sale of Coca-Cola by Carney was a mere incident to his business as a wholesale merchant; that, although he sold and distributed Coca-Cola in single cases and in case lots, that did not constitute a Coca-Cola depot for the distribution and shipment of Coca-Cola in the sense of the statute. In Levee Commissioners v. Oil Co., 91 Miss. 480, 44 So. 828, the court construed the statute imposing a privilege tax on lint cotton and also seed cotton not ginned in the levee district. The court said, in considering- the *295 case, what (constituted lint cotton and what constituted seed cotton was to be determined by the established meaning of those phrases at the time of the passage of the statute. If appellees are right in their position, there would be no difference whatever between the character of the business of a lumber yard and that of a lumber dealer. The statute, however, makes a very marked difference between the two. The privilege tax on a lumber yard whose annual sales exceeded one-half million feet of lumber was one hundred dollars under section 8 of chapter 73, Laws of 1908; while under section 2 of chapter 74, Laws of 1908, for a privilege tax of two hundred fifty dollars, a lumber dealer was permitted to sell annually twenty million feet or more; and where the sales ranged between ten million feet and twenty million feet, the tax was one hundred dollars; and where the annual sales ranged between five million feet and ten million feet, the tax was fifty dollars. It is evident that the legislature did not intend that a “lumber yard” and a “lumber dealer ’ ’ should mean the same thing, otherwise each one would not have been dealt with by a separate section of the statute, and such widely different privilege taxes imposed on each. Appellees argue that because of the fact that the statute imposed a graduated privilege tax on lumber yards based on the number of feet of lumber annually sold, shows that the legislature did not understand that a lumber yard business included the purchase and sale of any other material except lumber. We do not think there is much force in that position. Privilege taxes on lumber yards' are graduated by the statute, as they are on lumber dealers and stores. The tax had to be graduated according to some standard. The legislature saw fit, in graduating the tax, to disregard other building materials than lumber kept and sold in a lumber yard. Probably this was done to avoid some supposed inconvenience. *296 Applying those principles' to the case in hand, we are of the opinion that appellant, as it conducted its business for the period involved, was only liable for a lumber yard privilege tax. Reversed, and judgment for appellant.