Opinion
No. 34596.
April 28, 1941. Suggestion of Error Overruled June 9, 1941.
1. LICENSES.
A person who operated a portable sawmill by which he sawed timber into large dimensions suitable for sale to mills which would then resaw the timber and thereby put it into condition popularly understood as "lumber" rather than "timber" was liable for tax of 1/4 of 1 per cent. of value of products produced under statute imposing tax upon persons engaging in business of manufacturing, compounding or preparing for sale, directly or indirectly, any articles or commodities (Laws 1934, chap. 119, sec. 2-b).
2. LICENSES.
A portable sawmill operator who sawed timber into large dimensions suitable for sale to mills which would then resaw timber was in no position to complain of lesser tax of 1/4 of 1 per cent. of value of products produced because state might have lawfully demanded the higher tax provided by statute (Laws 1934, chap. 119, secs. 2-a, 2-b).
APPEAL from the circuit court of Hinds county, HON. J.F. BARBOUR, Judge.
T.J. Wills, of Hattiesburg, for appellant.
Appellant contends that Section 2-b has no application to the timbers produced by him and that if a tax is interposed and due it's the tax levied under Section 2-a of Chapter 119 of the Laws of 1934, which levies a tax upon every person engaging or continuing within this state in the business of felling and producing timber for sale, profit or commercial use, or buying, logging, or selling timber for commercial purposes.
Secs. 2a 2b, Chap. 119, Laws of 1934.
The word "timber" used as a generic term, according to Mr. Webster, means "that sort of wood which is proper for buildings or for tools, utensils, furniture, carriages, fences, ships and the like, usually said of felled trees but sometimes said of those standing" and not the articles in their completed state, for the manufacture of which the timber may be used.
Butler Barrow v. McPherson, 95 Miss. 635, 49 So. 257.
J.H. Sumrall, of Jackson, for appellee.
When it is recognized that by the Emergency Revenue Act, the Legislature sought to tax every form of activity for pecuniary gain engaged in by a citizen of this state; and when the broad definition of the activities taxed by Section 2-b is considered in this light, then it is inconceivable that a person engaged as this appellant is admitted to have been engaged in the operation of a sawmill in which some processing was done on timber, and the result of such processing was to transform the raw material into a state at which it could be purchased and used by a plant in connection with which no sawmill is operated, was engaged in such an activity as was not contemplated by said Section 2-b of the Sales Tax Law, Chap. 119, Laws 1934.
Argued orally by T.J. Wills, for appellant, and by J.H. Sumrall, for appellee.
During the month of November, 1937, appellant owned and operated a portable sawmill, in and by which he sawed timber owned by him into certain large dimensions suitable for sale to mills which would then resaw the timber thus prepared and thereby put it into the condition popularly understood as lumber rather than timber.
The State Tax Commissioner demanded of and collected from appellant one-fourth of one per cent. of the value of the products turned out by appellant at and by his said portable sawmill, under Section 2-b, Chap. 119, Laws 1934. The tax was paid by appellant under protest, and he sued to have it refunded, contending that he should have been taxed under Section 2-a of that chapter, and that he was due nothing under Section 2-b.
We are of the opinion that he was liable under Section 2-b, which, by its terms, imposes the tax demanded "upon every person engaging or continuing within this state in the business of manufacturing, compounding, or preparing for sale, profit or commercial use, either directly or through the activity of others, in whole or in part, any article or articles, substance or substances, commodity or commodities . . ."
Whether what was produced by appellant be called timber or whether lumber, nevertheless he was engaged in the substantial and definite activity of preparing the material so that it would be suitable for use by, and sale to, resaw operators; and appellant's activity was by his own mill and machinery in which definite and separate operation by him he had the protection of the laws of the state, and all the force of the State in furtherance of that protection, in respect to which the State exacted the remuneration prescribed. It may be, as to which we express no opinion, that the state may have lawfully demanded of him the higher tax provided by Section 2-a, but since the State did not do so, appellant is in no position to complain of the lesser tax imposed by Section 2-b.
Affirmed.