S. Zemurray & Co. v. Town of Franklin

LAND, J. This is an injunction suit against the defendants to restrain them from interfering with the plaintiff’s agent in the sale of bananas by bunches from a freight car at Franklin, La., because of the failure of the plaintiff to take out a wholesale license in the town of Franklin for the year 1912. Plaintiff’s firm was domiciled in the city of New Orleans, where it was engaged in the wholesale fruit business. Plaintiff had paid license taxes to the state and to the city of New Orleans for the year 1912. The town of Franklin, for answer to the petition, averred that the plaintiff was engaged in the wholesale fruit business in said town without first obtaining a license, reconvened for the amount of the license, with interest, penalties, and attorney fees, and prayed for the dissolution of the injunction, with costs and attorney fees. There was judgment in favor of the defendant as prayed for, and the plaintiff has appealed. The question of law involved is thus stated by counsel for the plaintiff: “Is a duly licensed mercantile firm, in the fruit business, which ships a car of bananas by rail from town to town, having its own agent accompanying the car, and selling bananas by the bunch to any one who wishes to buy, is such a firm duly licensed at its domicile as a wholesale mercantile firm, subject to a similar business tax in each town where bananas are sold from the car?” The town of Franklin contends that, the car being located in the town, and the sales being in original packages, and for the purpose of resale, plaintiff, under the law, is liable to the minimum license as a wholesale merchant under the ordinance then in effect. Plaintiff’s allegations show that it ships by rail car loads of bananas from town to town, and disposes of them as in the instant case. Counsel for defendant contends that it is of no moment whether the business be carried on from a box car, warehouse, depot, platform, or wharf, as Act No. 171 of 189S does not specify any particular place or business establishment. It is obvious that the plaintiff, under its system of selling bananas from cars, may carry on such business in the town of Franklin, and other towns of this state, throughout the year, and thereby enjoy all the advantages of local sales. The only difference between plaintiff’s business and that of local dealers in the same line is in the use of a car instead of a building for the purpose of storage and sale. Every person who pursues any business becomes liable to a license tax from and after [805] January 2d of each year, or from the date of the commencement of his business. Section 2, Act No. 171, 1898. Plaintiff commenced doing business in the town of Franklin when its agent commenced selling bananas from the car located within the limits of that town. Plaintiff’s counsel contend that the business thus pursued was a peddling business, and cite Pegues v. Ray, 50 La. Ann. 574, 23 South. 904. But that was the case of a commercial drummer selling wrought-iron ranges by samples. Act No. 171 of 1898, § 12, divides peddlers or hawkers into five classes: “When traveling on foot.” “When traveling on horseback.” “When traveling in a one-horse vehicle.” “When traveling in a two-horse vehicle.” “When traveling on any kind of water craft, two hundred dollars.” The same act further provides: “That all traveling vendors of stoves, lightning rods and clocks shall pay a license annually of two hundred dollars.” Selling bananas by wholesale out of railroad cars does not come within the meaning of peddling or hawking, or itinerant vending of articles of merchandise at retail from house to house. Wholesaling is the selling by the original or unbroken package or barrel only to dealers for resale. Act No. 171 of 1898, p. 394. In a supplemental petition plaintiff represents : “That in fact or in truth it was neither a stationary wholesaler nor retailer, and likewise was not a peddler within the revenue act of Louisiana because it was peddling neither from a boat, from a wagon, from horseback, nor from on foot, and that by reason of the laws not having required the payment of a license by your petitioner for the business of peddling fruit from a railroad car, that no license could be demanded of it by the town of Franklin.” Plaintiff, in its supplemental petition, admitted all the facts set forth in the answer, which, among other things, avers that plaintiff’s agent made sales in unbroken packages for resale — ■ “from the car in the same manner as though from a wholesale storehouse.” From the admitted facts, it appears that the plaintiff was engaged in the business of selling bananas at wholesale in the town of Franklin just as effectually as if it had a branch establishment in that place. Plaintiff owes a license for each and every branch of its business. See Sheriff and Tax Collector v. Bokenfor, 108 La. 19, 32 South. 176. Judgment affirmed. PROYOSTY, J., being absent on account of illness, took no part.