Opinion
No. 29239.
January 26, 1931.
1. LICENSES.
Words "person" and "himself," used in statute levying privilege tax on transient vendors of merchandise, held to include corporations (Laws 1930, chapter 88, sections 1, 205).
2. EVIDENCE.
Court will take judicial notice of fact that tobacco is a farm product.
3. LICENSES. Agent or employee of corporation manufacturing tobacco products, selling and delivering such products direct from manufacturer to purchaser, held not subject to license tax imposed on transient vendors of merchandise ( Laws 1930, chapter 88, section 205).
Laws 1930, chapter 88, section 205, imposes license tax upon transient vendors of merchandise usually carried for sale in general merchandise store and making delivery thereof at time of sale, but provides that statute should not apply to person selling farm products raised, produced, or grown by himself and/or products manufactured by himself.
APPEAL from circuit court of Pike county. HON.E.J. SIMMONS, Judge.
Butler Snow, of Jackson, for appellant.
But for the proviso in section 205, chapter 88, Laws of 1930, it is perfectly clear that the statute would apply to each individual going from place to place, whether such individual was acting as principal or as agent for another.
The rule is universal that he who claims an exemption from taxation must show affirmatively an exemption expressly declared, and that the claimant is clearly embraced within the terms of the exemption; that statutes exempting from taxation must be strictly construed and the legislative intent to exempt must be expressed in terms clear and unambiguous, and that doubts as to whether an exemption is granted must be resolved in favor of the taxing power.
Morris Ice Company v. Adams, 75 Miss. 410; Adams v. Y. M.V.R.R. Co., 77 Miss. 194; State v. Simmons, 70 Miss. 485; Barnes v. Jones, 139 Miss. 625; North American Accident Ins. Co. v. Miller, 155 Miss. 641; Carrington v. City of Birmingham, 125 So. 208.
An exemption from license taxation under a constitutional or statutory provision is in derogation of common right and must receive a strict interpretation and no claim to exemption can be sustained unless it is clearly within the scope of the exempting clause. The existence of an exemption will not be presumed but must be clearly proved, and if there is any doubt, the uncertainty will be resolved against the exemption.
37 C.J. 238.
There are several sections in the privilege tax chapter of the Laws of 1930 which are in pari materia with section 205, which show that the individual, under section 205, when acting as an agent for another, is not exempt.
Chapter 88 of the Laws of 1930.
The context shows that the word "person" in the proviso of section 205, chapter 88 of the Laws of 1930, is given a limited meaning and relates only to the individual actually making the sale of the products produced by the individual thus making the sale.
The court has repeatedly held that where the meaning of the statute is not plain, resort must be had to the real purpose and intention of the legislature in adopting the statute, which, when ascertained, the court should give effect thereto, even though the letter of the statute be violated; that what is within the intention is within the meaning of the statute, though not within the letter, and converso. And, furthermore, the court in construing a statute will not impute an unjust and unwise purpose to the legislature when any other reasonable construction can save it from such imputation.
Gunter v. City of Jackson, 130 Miss. 637.
Sections 219, 220, 221, 222, 226 and 227 go far to show that the law intends that the individual actually selling the merchandise is the one liable for the tax. He is required to have it in his actual possession and to produce it when demanded. It constitutes a personal privilege.
Temple v. Sumner, 51 Miss. 13.
The unmistakable construction of these sections of the privilege tax law, considered with the context, is that he is a transient vendor, who, in his own person, goes from house to house with his goods and offers them for sale. As the tax is on the appellee and he did not produce or manufacture the tobacco, there is no basis for the claim of exemption.
Temple v. Sumner, 51 Miss. 13.
R.H. J.H. Thompson and G.G. Lyell, all of Jackson, for appellee.
Section I of the Privilege Tax Law of 1930 defines the word "person" as used in the act to include a corporation.
A proviso in a statute is a clause which defeats its operation conditionally, and differs from an exception, which exempts something absolutely from the operation of the statute by express words in the enacting clause.
An exception takes out of the statute something that otherwise would be part of the subject-matter of it. A proviso avoids them by way of defeasance or excuse.
Western Assurance Company v. J.H. Mohlan Co., 40 L.R.A. 561; Allen's Lessee v. Parish, 3 Ohio, 187.
A recognized effect and operation of a proviso is to deny or prohibit, and, when connected with the delegation of authority, it is tantamount to a command not to exercise the authority.
I.C.R.R. Co. v. Levy Commissioners of Orleans District, 33 So. 385.
The tax provided in section 205 of chapter 88 of Laws of 1930 does not apply where the person making the delivery of goods is filling orders previously taken.
Israels v. State, 127 So. 279.
Under the provisions of the proviso section 20, chapter 88 of the Laws of 1930 the producer-manufacturer, preserver, bottler, or canner may sell his output either by himself or through his agents, without being liable for the tax imposed by said section.
A corporation is an artificial person which can act only through its agents.
No tax has been imposed by Section 205 of the Privilege Tax Law of 1930 on persons or corporations selling goods manufactured by themselves. The statute ought to be construed most strongly against the taxing power.
Argued orally by George Butler, for appellant, and by G.G. Lyell and R.H. Thompson, Jr., for appellee.
Section 205, chapter 88, Laws 1930, the said chapter being the revised privilege tax laws of the state, reads as follows:
"Sec. 205. Transient Vendors of Merchandise. — Upon each person (whether principal or agent) going from person to person and/or from dealer to dealer and selling, at retail and/or at wholesale, any goods, wares and/or merchandise usually carried for sale in a general merchandise store and making delivery thereof at the time of the sale thereof, as follows:
(1) On foot ........................................ $15.00 (2) With push cart or bicycle ...................... 25.00 (3) With pack animal ............................... 40.00 (4) With vehicle and draft animal or animals or with motor vehicle or with motorcycle, or with watercraft ..................................... 100.00 "Provided the provisions of this section shall not apply to a person selling dairy, poultry, and/or farm products raised, produced or grown by himself and/or products manufactured, preserved, bottled and/or canned by himself."The taxes levied by this section are for `State License.' A state-wide license may be procured by paying three times the license levied herein."
Section 1, of said chapter, provides that the word "person," when used in the chapter, shall be taken to include a corporation, "unless the intention to give a more limited meaning is disclosed by the context."
The agreed statement of facts discloses that the R.J. Reynolds Tobacco Company is a corporation and is the manufacturer of tobacco products, and that appellee, Smith, is an employee or agent of said tobacco company, serving solely on a salary; that, with the motor vehicle and other appliances owned and maintained by the said company, appellee is engaged as employee or agent in making deliveries and sales in the manner mentioned in the said statute, but direct from the manufacturer to the purchaser; and that appellee carries no other goods than those of his principal, and only the tobacco products manufactured by his said principal.
It is plain that the section does not include dairy, or poultry, or farm products raised, produced, or grown by the person thus offering them for sale and selling them. It is plain also that it does not include dairy or poultry or farm products manufactured by the person himself. It is fairly plain too, as we think, that the words "person" and "himself" include corporations, else we would have the inadmissible proposal that those, for instance, of our dairies which are owned by individuals could transact their business of sales and delivery free of the tax, while a dairy no larger and in no material respects different in situation, but owned and operated by a corporation, could not. And, of course, it is plain that tobacco is a farm product, that fact being one of which we take judicial notice. These views would seem sufficient, then, to dispose of the question, and to produce the conclusion that appellee is not liable for the tax demanded of him.
Affirmed.