Thibaut v. Kearney

The opinion of the court was delivered by Nicholls, C. J. On a rule taken by plaintiff against the defendant the latter was “ condemned to pay $105 with 5 per cent, on said .amount for lawyer’s fees and all costs” for a license carrying on business as retail merchant and liquor dealer. The defendant in .answer to the rule pleaded the general issue, and denied specially that he was a retail merchant owing a license. He avers that he keeps a store on his plantation, in which are sold only such goods and merchandise as are needed on his plantation, and that he makes mo sales to the general public, or to persons other than his laborers [150] on the plantation. That defendant being engaged in agriculture is otherwise exempt from license taxation by the Constitution of this State and that of the United States. On trial of the case plaintiff testified that defendant is the owner of the Belle Chasse plantation; that he knows that he carries on the business of retail merchant and liquor dealer; that he made demand on him for a license for carrying on the business of liquor dealer and retail merchant, and that he answered he did not owe any license because he sold only to hands employed by him on his plantation. This witness was not cross-examined. Defendant’s manager testified that there was no store on the plantation wherein merchandise was sold to any persons other than the plantation laborers; that supplies are sold only to the hands employed thereon; that he himself, and not the defendant, attended to the store; that several applications by persons who did not reside on the plantation were made for the sale of supplies, and that he positively refused to sell to any but those employed on the place; that the sales were restricted to the incidental supplies required by the laborers on the plantation; that no sales were made to any persons working on the levees who were not connected with the plantation; that there were about fifty-eight men employed on the plantation, with the exception of two or three men who are ditching on the place, who live at Little Rock; that all the rest reside on the plantation; that groceries in general were sold in the store, also liquors; that the profits are merely enough to pay the man for keeping the store, and the freight and general expenses of the store; that it was kept merely for the accommodation of the hands and not with a view of making any profits; that liquor was sold to no person other than those employed on the plantation; that the ditchers went to work every morning and remained until night; that the nearest public store to the plantation was two miles off. The defendant on appeal claims that under these pleadings and evidence the judgment of the District Court should be reversed. He relies greatly on the case ot Lulingvs. Labranche, reported in 30 An. 973, and asserts that there is a difference between his position and that of Diamond, the defendant in the case of Thibaut vs. Diamond, 37 An. 902, in this, that it was shown that in the Diamond store sales were made to outsiders, whereas the evidence in this case establishes the'fact that he dealt exclusively with his employees. [151] For the purposes of his case we will assume this last statement to be correct, and examine the defendant’s rights on that theory. We have referred to Act No. 123 of 1866 (p. 236) and to Act No. 89 of 1868 (p. 119) alluded to in 30 An. 973, and find that the former act was an act entitled “An act to authorize planters and farmers to furnish their freedmen and other employees with articles of merchandise without incurring the penalties of retail merchants,” and that it was evidently passed to exempt planters and farmers so dealing with their employees from the operation (under which they would otherwise fall) of the existing general law by which retail merchants were required to pay a license, and we also find that Act No. 89 of 1868 was entitled “An act to repeal an act entitled an act to authorize planters to furnish their freedmen and other employees with articles of merchandise without incurring the penalty of retail merchants, approved March 26, 1866,” and that it reads as follows: “ Whereas the act of the Legislature the title of which is set forth in the title of the present Act 15 is against the interest of the laborer and an act of injustice to the paying storekeeper, be it enacted, etc., that the same be repealed.” It is conceded in the case of Luling vs. LaBranehe that the passage of Act No. 123 of 1866 is a clear legislative interpretation of the words “retail merchant” in the antecedent license law, and that but for the act of 1866 merchants and farmers furnishing their employees with supplies would fall under the terms of the revenue act, and that the second act was intended to deprive the planters who thus sold of the benefit of the latter statute, but the court goes on to declare that the effect of this repeal is to leave “ the question as a judicial one,” since the “ designation of a class would then appear in the revenue act without any explanatory or qualifying interpretation elsewhere.” We think the court was mistaken in saying that the farmers and planters mentioned were exempted from license as retail merchants simply by a “ declaration” in the act of 1866 that they did not fall under the definition of the words “ retail merchant.” They were exempted by force of a direct affirmative exemption, one which the court rightly declared inconsistent with their being not held by a license before. We think the court was also mistaken in saying that when the exemption law was repealed it left the meaning of [152] the words “retail merchants” a judicial question without any explanatory or qualifying interpretation elsewhere. ~We do not see how the repealing of an “ exemption” law, when the repealing statute assigns as a reason for the repeal that the further continuance of the exemption was against the interests of laborers and an injustice to tax-paying storekeepers, could be held to bring about the very reverse of what the repealing act declared to be its purpose. We do not think the matter was “ set at large” by this repeal, but that the original legislative interpretation of the words gained, on the contrary, additional strength thereby. It was the exemption and not the interpretation which was repealed. We are of the opinion that the words of the present law, that a license is exacted for any business of selling at retail,” reach the case of the defendant, both under legislative and judicial construction, and that he is liable as claimed by the plaintiff. To construe the law otherwise would be to place it outside the rule of equality and uniformity. Defendant’s manager testifies that the store on defendant’s plantation was not kept with a view of profit; that the profits are merely enough to pay the man for keeping the store and the freight and general expenses of the stor.e. The motive which the defendant might have in keeping the store on his place is not the controlling factor in the case. We think the preamble of the repealing act of 1868 is as applicable now as it was then, and that it would be “ against the interests of the laborers and an injustice to the tax-paying storekeepers” to sustain defendant’s position, and we have no reason to believe that the Legislature has changed its views on that subject. The conclusions we have reached do away with the necessity of an examination of the question raised in defendant’s brief, as to whether a liquor license was demandable of him unless and until it had been determined that he was a retail merchant, his claim being that he would be only liable as a liquor dealer when it should have been established that he sold liquors in connection with business as a retail merchant. We understand the defendant to contend in his brief that, granting his liability to pay a license, there is not sufficient evidence in the record to justify a judgment of the amount which he has been condemned to pay. There are several reasons why we can not [153] accede to his views. It was defendant’s duty, if liable, to have gone forward and demanded a license at the beginning of the year, presenting an exact statement of his situation. Not only did he fail to do this, but when applied to for payment he, without contesting the amount claimed, denied, as he still denies, all liability. Not only has he not pleaded that he was “ overcharged,” but when plaintiff, in connection with the demand set up by him, testified that he knew defendant to be a retail merchant and liquor dealer, defendant failed to take the stand as a witness. If he was overcharged, he was better informed and better able to show that fact than any one else and he should have done so after his default. For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed.