Barataria Canning Co. v. State

Mates, O. J., delivered the opinion of the court. This suit is instituted by the state, on relation of the-attorney general, for the purpose of recovering from the Barataria Canning Company the sum of two hundred eighty-four dollars and twenty-six cents claimed to be due the state by reason of the fact that the canning company bought and canned, in its factory situated in this state, some nine thousand barrels of oysters. In the declaration filed by the state it is stated that the oysters bought by the canning factory were' taken from the wa — 896 — ters of the state of Alabama, and brought into the city of Biloxi by the canning factory, and that the oysters so brought into the state,’ and bought by the canning company, were thereafter opened, shucked, and canned in the factory. The declaration then claims that by virtue of this fact the canning company became liable to pay to the state the sum of three cents per barrel on the aboveoysters, which aggregates the sum above named. A demurrer was filed to the declaration, the grounds of demurrer being that under Sec. 3498 of the Code of 1906, as amended by Acts 1908, Ch. 192, the tax sought to be collected does not comprehend oysters shipped from another state into the state of Mississippi. The second cause of demurrer asserts that, if the statute does include oysters shipped from other states, it is unconstitutional and in violation of Art. 1, section 8, of the Constitution of the United States, vesting in congress the exclusive power to regulate commerce between the states. A third ground of demurrer is that, if the statute applies to shipments of oysters from other states, it also violates Art. 1, Sec. 10, of the Constitution of the United States, which prohibits any state from levying any duties upon imports or exports except such as are necessary for executing its inspection laws. A fourth ground of demurrer is that the statute violates Sec. 112 of the Constitution of the state of Mississippi, in that it destroys the equality and uniformity of the taxation laws. This demurrer was overruled, and, the defendant declining to plead further, judgment final was taken, from which judgment the canning company prosecutes an appeal. The particular statute involved in this litigation is thé amendment made by the Laws of 1908 to Sec. 3498 of the Code of 1906. This law is found in Ch. 192 of the Laws of 1908. The part of the above statute specifically involved is as follows: “In addition to the privilege license required by this chapter, a further tax fee of — 897 — three cents per barrel is hereby laid upon all oysters •canned and packed in, and all oysters shipped raw in or from, this state, and on all oysters caught or taken from the public reefs or private bedding grounds for packing, canning, and for shipment or sale raw. . . . This tax shall be paid by the person, firm, or corporation packing or canning said oysters; and in case of oysters sold or .shipped raw by the dealer selling or shipping the same; that is to say, by the first dealer who handles said oysters, and any oysters sold by any person who has purchased same from a dealer who has paid the license thereon, shall not again be taxed.” It seems to us that the law is clear and consistent with the Constitution •of the state and the United States. The above statute is a supplement to the privilege tax law; in fact, it is' a privilege tax law itself. While in another place the act has fixed the tax at one hundred dollars for the privilege of conducting this business, it does not intend that •one section of the statute shall fix the exact sum that must be paid for the privilege. The Laws of 1908 provide a method for the collection of an additional privilege tax to that named in section 3497, and the plan for .ascertaining and fixing the additional amount of privilege tax is fixed by Ch. 192, section 3498, Laws of 1908. The tax is not imposed on the oysters, it is not imposed on the shipper from the foreign state into this state; but the whole tax is to be paid by the local person engaged in packing or canning the oysters in this state, •or upon the local dealer selling or shipping the oysters, but the tax is imposed as a privilege tax for conducting the business in this state. Counsel for appellant calls the court’s attention to the •case of Foote & Co. v. Clagett, 116 Md. 228, 81 Atl. 511. It is contended by counsel for appellant that the above case is directly in point and conclusive of this controversy, but we do not so read the ease. The statute of Maryland, which was being reviewed by the court, was — 898 — very different from our statute. In the above case it is shown that the state of Maryland for the purpose of raising revenue, undertook by statute to impose a tax on oysters shipped from foreign states before they could be sold, and the Maryland court held that the statute was void under Art. 1, section 8, of the Constitution of the United States, prohibiting any state from levying any ■duties upon imports or exports, except such as are absolutely necessary for executing its inspection laws. One of the contentions in the above case was that the statute was only designed as an aid to the inspection laws of the state of Maryland, but the court held that although the act provided for an inspection of oysters, since it also imposed a charge of two cents per bushel on all oysters shipped from foreign states, the act showed on its face that it was a revenue measure, and because of this held the act void as in conflict with that article and section of the federal Constitution above referred to. But the act of 1908 of this state is a very different law. The tax in this state is levied on the person, firm, or corporation packing or canning the oysters in this state after they have reached here and been sold by the foreign owner. The same is true of the privilege tax placed'upon a dealer selling or shipping raw oyster's. The act of 1908 does not contemplate that any tax shall be imposed upon any person importing or selling oysters in this state. Such person is not prohibited by the act from so doing. In other words, a party living in Alabama may himself ship into this state as many oysters as he desires and sell same, and, unless he localizes himself as a dealer or canner of oysters, no tax is imposed on him by the act. The tax is imposed upon the person who buys and cans them in this state as a privilege for conducting that business. And, again, the tax is imposed upon the local dealer in this state for the privilege of conducting that business in this state. A canning factory, or a dealer, may purchase all the oysters they‘desire from any per — 899 — son in any other state without liability to this tax, unless the above person cans and packs the oysters after they buy them, or unless they sell or ship them as a dealer. This act violates no section of the Constitution of the state or United States. The case of Applegarth v. State, 89 Md. 140, 42 Atl. 941, is a case directly in point. It appears from the above case that the state of Maryland had a law very similar to the law of this state. Applegarth was indicted in Maryland for a violation of the act. The state introduced testimony showing that Applegarth was engaged in the packing and canning of oysters in the city of Baltimore. The state then proved that he had failed to pay the tax of one dollar per thousand on each one thousand barrels of oysters packed and canned in excess of the amount named in the license issued to him. In defense, Applegarth offered evidence showing that the oysters in question were purchased by him in the state of Virginia, and shipped to him from that state, and that they were taken from the waters of that state. This evidence on the part of Applegarth was objected to by the state, and the court sustained the objection, and refused to admit the evidence. The opinion of the court in the above case so thoroughly states the contention in the case now on trial before this court that we can do no better than to quote it with approval. In the above case the court says: “Does the fact that the appellant bought the oysters in the state of Virginia, and had them shipped to him from that state to the state of Maryland, exempt him from the payment of the license fee? The appellant contends that the provisions of the act of 1894 relate solely to the oyster industry of the state of Maryland; and further, that it was not the intention of the legislature to tax the canning of oysters caught in other states by this statute, or to place a burden on the packer for which he did not receive a corresponding benefit in the protection and preservation of — 900 — an article to be packed; and, further, it is contended that such a construction would be unreasonable and would impose an unjust burden, and, if the legislature had so intended the tax to apply to other oysters than such as have been caught in Maryland waters, it would have said so in the words of the statute. But we fail to comprehend in what respect the Constitution has been violated by the provisions of this act, unless it be true that every license issued to a merchant is unconstitutional, because he may sell goods that were made in, and shipped from, some other state. In other words; on whatever stock he purchased outside of the state he would not be required to pay any license. To sanction the contention of the appellant would he to grant immunity to the citizens of the state of Virginia by releasing them from taking out certain licenses which the citizens of Maryland are under the act of 1894 required to obtain. We know of no act ever passed by the legislature of this state which was intended to confer benefits upon other states, but which denied to this state equal benefits. Mr. Justice Field, delivering the opinion of the court in the case of Webber v. Virginia, 103 U. S. 350 [26 L. Ed. 565], says: “No one questions the general power of the state to require licenses for the various pursuits and occupations conducted within her limits, and to fix their amount as she chooses.’ And again from the same case: ‘A state may require a license for the sale of sewing machines, although the machines are patented under the laws of the United States, where there is no discrimination against machines outside the state.’ Mr. Justice Boyd, delivering the opinion of this court in the case of State v. Applegarth, 81 Md. 296, 297, 31 Atl. 961, 28 L. R. A. 812, says: ‘ The appellees were indicted for engaging in the business of packing and canning, for sale and transportation, oysters taken in the waters of this state, without obtaining from the state a license therefor. The prosecution'is based on Secs.‘66, 67, Art. 72, of the Code of — 901 — Public General Laws, as amended by Ch. 380 of the Laws of 1894. It is contended on behalf of the appellees, that these sections are (1) in conflict with .the Constitution of this state, because the license provided for is an arbitrary and unequal tax, contrary to the fifteenth article of the Bill of Bights, and not a lawful exercise of the police power of the state; and (2) that they are a regulation of interstate commerce, in violation of the Constitution of the United States. . . . The privilege of carrying on the business of packing and canning oysters is made, by this law, to depend upon the taking out of a license, and we do not think the provisions of the state Constitution looking to equality and uniformity in taxation are thereby violated. It is said in Tied. Lira. 282, that ‘the most common objection raised to the enforcement of a license tax is that it offends the constitutional provision which requires uniformity of taxation, since the determination of the sum that shall be required of each trade or occupation must necessarily; in some degree, be arbitrary, and the amount demanded more or less irregular. But the courts have generally held that the constitutional requirement as to uniformity of taxation had no reference to taxation of occupation.’ The right to require the payment of license fees for the privilege of carrying on business of different kinds has been recognized for many years in this state, and the license fees required to be paid have been fixed, in the discretion of the legislature, according to circumstances and the character of the business.” Affirmed.