Opinion
No. 31484.
December 17, 1934.
1. LICENSES.
Bakery which has paid privilege tax has right to sell its products in any manner and to any person within county wherein bakery is located, and to send its servants into other counties so long as servants sell and deliver only to dealers for resale, and servants are not liable for transient vendors' tax for such sales and deliveries (Laws 1934, chapter 118, sections 24, 233).
2. LICENSES.
Where bakery has paid privilege tax, bakery's servant who sells or delivers bakery's products to persons other than dealers for resale is liable for transient vendors' license tax in each county where sales or deliveries are made, not including home county of bakery (Laws 1934, chapter 118, sections 24, 233).
APPEAL from the Circuit Court of Hinds County.
Creekmore Creekmore, of Jackson, for appellant.
Defendant is a transient vendor and is liable for the tax imposed by section 233 (e) of chapter 142 of the Laws of 1934.
The Legislature manifestly intended that the bakery by paying one tax could sell its products in that county, but when it sent truck drivers to other counties the truck drivers would be liable for a state tax in each county where they did business.
The exemption claimed is discriminatory, unconstitutional and void.
37 C.J., sec. 53; Covington v. Dalheim, 126 Ky. 26, 102 S.W. 829; Louisville v. Weikel, 137 Ky. 784, 127 S.W. 147; Leonard v. Reed, 46 Col. 307, 104 P. 410; Yot Sang, 75 Fed. 983, 171 U.S. 686, 43 L.Ed. 1180; Johnson v. Long Furniture Co., 113 Miss. 373, 74 So. 283.
Lotterhos Travis, of Jackson, and Leonard Katzenmeyer, of Vicksburg, for appellee.
Section 233 of the Privilege Tax Law of 1934, does not impose a tax on this defendant.
Section 24 of the Privilege Tax Law of 1934, does not forbid the selling and distributing of bakery products.
Section 233 of the Privilege Tax Law of 1934, specifically exempts this defendant (appellee) from a transient vendor's tax.
It was the intention of the Legislature that this appellee (defendant) be specifically exempted.
The exemption is not unconstitutional.
Dunn v. Love, 155 So. 331.
It is fundamental that the Legislature has broad powers of taxation and classification for taxation, and that the action of the Legislature within this field will not be held invalid unless clearly in conflict with some specific provision of the state or federal constitution.
6 R.C.L., Constitutional Law, secs. 98 and 104, et seq.; 26 R.C.L., Taxation, sec. 227; Clarksdale Insurance Agency v. Cole, 87 Miss. 637, 40 So. 228; State v. Lawrence, 108 Miss. 291, 66 So. 745; Coca-Cola Company v. Skillman, 91 Miss. 677, 44 So. 985; Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692; Huggins v. Home Mutual Fire Ins. Co., 107 Miss. 650; City of Jackson v. Miss. Fire Ins. Co., 132 Miss. 415, 95 So. 845; Enochs v. State, 133 Miss. 107, 97 So. 534; Miller v. Lamar Life Ins. Co., 158 Miss. 753, 131 So. 282; City of Jackson v. Deposit Guaranty Bank, 160 Miss. 752, 133 So. 195; Hudson v. Stuart, 166 Miss. 339, 145 So. 611; Miss. State Tax Commission v. Flora Drug Co., 167 Miss. 1, 148 So. 373; Clark v. State, 169 Miss. 369, 152 So. 820.
Argued orally by Wade H. Creekmore, for appellant, and by Cecil Travis, for appellee.
Collins Bakery owns and operates a bakery in the city of Jackson, and has paid the privilege tax imposed by section 24, chapter 118, Laws 1934. The concluding sentence of that section provides that "the payment of the above tax shall entitle the licensee to the privilege of selling and distributing the products manufactured by him, either at his place of business or from trucks, in the county in which license is issued." Let it be noted that this privilege is to sell at wholesale or retail, to dealers and consumers — it is a privilege without restriction, so long as within the county in which the license is issued.
The bakery owns a truck and employs appellee as its servant to make deliveries of its bakery products in neighboring counties, but only to dealers for resale, not to consumers nor to any person other than to the regular dealers, which dealers have themselves paid the necessary privilege taxes on their business. Section 233 of the said chapter imposes a privilege tax "upon each transient vendor, or dealer, of bread, rolls, cakes, pies, and other bakery products;" but the same section expressly provides that this tax shall not be required of a transient vendor or dealer of bakery products "when sold or distributed from a bakery which has paid the privilege tax imposed by this act, to dealers for resale."
Construing all these provisions together and harmonizing them, we have the result that the bakery, when it has paid the privilege tax first above mentioned, has the right to sell its products in any manner and to any person or persons within the county wherein the bakery is located, and, in addition, has the privilege to send its servants into other counties so long as its servants sell and deliver only to dealers for resale, and no such servant is liable for the transient vendors' tax when his sales and deliveries are solely as last above stated. But when any such servant sells or delivers in another county any of the bakery products to consumers or to any other person than a dealer for resale, the servant becomes liable for the transient vendors' license tax in the county and in each county where such sale or deliveries are made, not including the home county of the bakery.
Affirmed.