Opinion
No. 30517.
April 4, 1933.
1. LICENSES.
General wholesaler's stock of meat being subject to one tax, Legislature would be presumed not to have intended by statute respecting meat distributing plants to impose additional tax, absent clear intent to contrary (Laws 1930, chapter 88, sections 121, 189).
2. LICENSES. Statute respecting tax on meat distributing plants does not impose tax on all persons distributing or selling meat, but on persons maintaining and operating "plant" therefor ( Laws, 1930, chapter 88, section 121).
Word "plant" means machine, apparatus, fixtures, etc., employed in carrying on a trade or mechanical or other industrial business, and the word "trade" means the act or business of exchanging commodities by barter, or by buying and selling for money; commerce; traffic.
3. LICENSES.
Statute respecting tax on meat distributing plants held inapplicable to general wholesale merchant whose plant enables him to do nothing more with meat than conveniently store, preserve, and distribute it as part of general business (Laws 1930, chapter 88, section 121).
APPEAL from circuit court of Yazoo county. HON.W.H. POTTER, J.
Barbour Henry, of Yazoo City, for appellant.
That the appellee is maintaining and operating a plant is amply supported by the following authorities defining a "plant." If it is a "plant" of necessity it is as the head line defines it a "Meat Distributing Plant," and no other.
The word plant includes anything (as distinguished from persons) animate or inanimate whether fixed or movable that is regularly used in the conduct of the business of an employer, and that is either way, work or machinery, and without which or something of similar character the business could not be carried on in the usual and ordinary manner.
Lipstein v. Provident Loan Society, 154 App. Div. 732.
Plant in its ordinary sense includes whatever apparatus is used by a business man in carrying on his business not his stock in trade but what he keeps for permanent employment.
State ex rel. v. Moss, 107 So. 555; Wiley v. Solvey Process Co., 109 N.E. 666; Holland Store Company v. Spencer, 77 So. 165.
Plant means the fixture, machinery, tools, apparatus appliances, etc., necessary to carry on any trade or business of any mechanical operation or process.
Nelson v. Downstein, 249 S.W. 241; 48 C.J. 1220.
The ultimate duty and responsibility of construction is upon the court, and departmental interpretation cannot well be resorted to where the language of the statute is plain. Before we are justified in accepting departmental construction of the law under consideration it must be doubtful, ambiguous or uncertain.
State v. Grenada Cotton Compress Co., 123 Miss. 191.
The fact that appellee paid the privilege for operating a wholesale store (Sec. 189 of Chapter 88, Laws 1930) does not exempt it from the payment of the additional privilege levied by this section involved.
Section 3 of the act provides for the payment of the privilege on "every person desiring to engage in any business, or exercise any privilege hereinafter specified" the license being good for one year. By sections 220, 221 and 222, the license shall be upon each business or privilege conducted. It is manifest the statute taxes each privilege enjoyed, regardless of the number as Section 222 so provides. The act defines various professions, businesses and callings and taxes each. It specifically taxes certain plants.
It is manifest that under Section 222 other privilege taxes are imposed upon the defendant, in addition to the one for "stores."
If it sold oleomargerine, or maintained a gas or oil station, under Section 89 of the act, or maintained an oil depot under Section 137 of the act, could it be seriously contended it would not owe the privilege tax required. There is no more reason for saying that it does not owe the tax on a "Meat Distributing Plant" which it maintains in addition to its wholesale store. In other words its license to operate a wholesale store does not cover those other privileges which might be enjoyed in conjunction with its store, and which have by express terms been taxed. Sam V. Anderson, of Greenville, and Butler Snow, of Jackson, for appellee.
It is to be assumed that the Legislature passed the act of 1930 in full view of the well known custom of business and course of dealing; that it imposed the taxes upon wholesale stores known to be engaged in the business of buying and selling meats in the ordinary and usual course of trade and temporarily stored them in coolers or refrigerators pending sale. Wholesale grocery stores at that time bought and sold meats. Many of them at that time had coolers and refrigerators in which they kept their meats to preserve them and keep them fresh and from deteriorating, pending sale and delivery. Refrigerators and coolers in this modern day are necessary to the proper equipment of a wholesale grocer, a retail grocer and the modern home.
Privileges are taxed in reference to the known course of business.
Ex Parte Taylor, 58 Miss. 482; Mitchell v. City of Meridian, 67 Miss. 644; Carney v. Hamilton, 89 Miss. 747, 42 So. 378; Levee Commissioners v. Oil Company, 91 Miss. 480; Revenue Agent v. Texas Oil Company, 141 Miss. 356, 106 So. 449; State v. Pons, 107 Miss. 619, 65 So. 645; Planters Lumber Co. v. Wells, 147 Miss. 279.
When the Legislature imposed a privilege tax upon wholesale stores, including grocery stores, they taxed the same with reference to the known course of business, and with a common understanding of what was embraced in and comprehended by a wholesale store or a wholesale grocery store.
Folkes v. State, 63 Miss. 81; Pitt v. Vicksburg, 72 Miss. 181, 16 So. 418; Craig v. Patterson, 74 Miss. 881, 21 So. 756.
The history of the statutes and the analysis of other sections of chapter 88, Laws 1930, show that in imposing a privilege tax upon "meat distributing plants" the Legislature did not intend to require a wholesaler in selling meats to pay, in addition to the store tax, a license fee of five hundred dollars to sell meats.
The word "plant" may embrace a store, as shown by the authorities cited by appellant, and others that may be cited. But it is manifest that the Legislature did not use the word "plant" in section 121 in the sense of a store, or as intending thereby to impose a special tax upon a wholesale merchant selling meat.
It is obvious that the Legislature used the word "plant" in the sense of an establishment, with fixtures, machinery, etc., where something was manufactured, processed or converted, and not in the sense of a storehouse where commodities are bought from various producers, manufacturers, jobbers, etc., and temporarily placed in a refrigerator pending sale.
The heading of the statute "Meat Distributing Plants" is important in determining the meaning of Section 121.
J.B. Gully, State Tax Collector v. International Company, decided February 20th, 1933, 165 Miss. 103.
Laws imposing privilege taxes are liberally construed in favor of the citizens and courts will not extend the statute imposing such taxes beyond the clear meaning of the language employed.
Bluff City Ry. Co. v. Clark, 95 Miss. 689, 49 So. 177.
The rule is well settled that laws imposing duties or taxes are not to be construed beyond the natural import of the language and are never to be construed as imposing burdens upon citizens upon doubtful interpretations.
Ex Parte Taylor, 58 Miss. 478; Y. M.V.R.R. Co. v. State, 62 Miss. 195; State v. Union Tank Car Co., 119 So. 310, 151 Miss. 797; Planters Lumber Company v. Wells, 147 Miss. 279, 112 So. 9; Bell v. Currie, 80 Miss. 179; Wilby v. State, 93 Miss. 667; Greenwood v. Bank, 75 Miss. 162, 21 So. 747; Ex Parte Ferguson, 59 Miss. 13 ; Jackson v. Newman, 59 Miss. 385; State v. Grenada Cotton Compress Co., 123 Miss. 191, 85 So. 137; Sperry Hutchinson v. Harbison, 123 Miss. 674, 86 So. 455; Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; Miller v. I.C.R.R. Co., 146 Miss. 422, 111 So. 558; State v. Grenada Cotton Compress Co., 123 Miss. 191, 55 So. 137; Board of Levee Commissioners v. Howze Merc. Co., 149 Miss. 843, 116 So. 92.
We grant that the Legislature may classify. In the privilege tax statute, they have classified, wholesale and retail stores, wharfs and trading boats, lumber yards, warehouses, meat markets, etc., as all constituting stores. But this court will not impute to the Legislature an intent to discriminate.
Smith v. Perkins, 112 Miss. 870, 73 So. 797; Johnson v. Long Furniture Co., 113 Miss. 373, 74 So. 283; Hyland v. Sharp, 88 Miss. 567, 41 So. 264; Adams, State Revenue Agent, v. Standard Oil Company, 97 Miss. 879; 4 Ency. U.S. Sup. Ct. Rep. 362, 363; Chicago, etc., Ry. Co. v. Westby, 178 Fed. 619; Railroad Company v. Adams, 90 Miss. 559, 45 So. 91; Vicksburg v. Mullins, 106 Miss. 217; Adams, Revenue Agent, v. Mississippi Lumber Co., 84 Miss. 23, 36 So. 68; Toomes v. Sharkey, 106 So. 273.
We respectfully submit that if the act is given the construction which appellant's counsel contend for, it creates an arbitrary discrimination and seemingly runs counter to the equal protection clause of the State Constitution.
And if two constructions of a statute are admissible and to construe it one way would present grave constitutional questions, the court will adopt such construction as will eliminate the question of the constitutionality of the statute.
New Orleans, etc., R.R. v. State, 110 Miss. 290, 70 So. 355; Staple Cotton Coop. Assn. v. Hemphill, 142 Miss. 298, 107 So. 24.
Shortly after chapter 88, Laws of 1930, became operative numerous inquiries were made of the Attorney-General as to the application of section 121 thereof. The Attorney-General undertook to answer all of these inquiries in one opinion. He ruled that one conducting the kind and character of business conducted by the appellee was not liable for the five hundred dollars tax imposed upon meat distributing plant, and that the statute would apply to such concerns as Swift, Armour and Wilson.
The court takes judicial knowledge of the Attorney-General's ruling. He is required by law to give his opinion. Two sessions of the Legislature were held after this opinion was given and before this suit was filed. The Legislature made no effort to change the statute. And if it be true that there is reasonable ground to contend that the statute taxes the business conducted by appellee, then departmental construction may be resorted to.
Briscoe v. Busby, 143 So. 887; Gully, State Tax Collector, v. International Co., 165 Miss. 103.
Argued orally by George Butler, for the appellee.
The appellant sued the appellee for privilege taxes alleged to be due by it under section 121, chapter 88, Laws 1930, which reads as follows: "Sec. 121. Meat Distributing Plants. — Upon each person maintaining and operating a plant for the distribution and/or sale of meat and/or meat products to retail dealers . . . . . . five hundred dollars."
The appellee is engaged in the wholesale mercantile business, operates a "wholesale store" within the meaning of section 189, chapter 88, Laws 1930, and has paid the privilege tax required thereby.
A small portion of the appellee's warehouse in which its goods, wares, and merchandise are stored, has been partitioned off into rooms equipped with electric refrigeration devices, by means of which the temperature thereof can be lowered so as to preserve perishable products, including meat, in which the appellee stores meat of a perishable nature and distributes it to its customers therefrom. This meat is sold by the appellee to its customers in the original packages in which it is purchased by it, nothing whatever being done by it to change the quality of the meat or the form of the packages in which it is received.
The court below held that the appellee was not liable for the tax.
The appellee's stock of meat must be included in the valuation of the stock of goods, wares, and merchandise on which it pays the tax imposed by section 189 of the statute; and in the absence of language evidencing a clear intent to the contrary, the Legislature will be presumed not to have intended by section 121 of the statute to impose an additional tax on the sale thereof. 61 C.J. 139; Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907.
Section 121 of the statute does not impose the tax on all persons distributing or selling meat, but on persons maintaining and operating a plant therefor. According to the lexicographers, the word "plant" may be defined as "the machine, apparatus, fixtures, etc., employed in carrying on a trade or a mechanical or other industrial business;" and the word "trade," as the "act or business of exchanging commodities by barter, or by buying and selling for money; commerce; traffic." All of the appellee's permanent facilities for the distribution or sale of goods, wares, and merchandise, therefore, constitutes a plant for the distribution or sale of goods, wares, and merchandise, so that any distribution and sale of meat from a wholesale general merchandise plant may be within section 121 of the statute, if the Legislature so intended. If such was the legislative intent, it could have been clearly manifested by simply imposing the tax on all persons distributing or selling meat. That such is not the language of the statute seems to indicate that the Legislature did not intend for it to apply to a general wholesale merchant whose plant enables him to do nothing more with meat than to conveniently store, preserve, and distribute it, as a part of his general business. This seems to be the ground of the decision in Carney v. Hamilton, 89 Miss. 747, 42 So. 378, wherein this court held that a general wholesale merchant who stored, sold, and distributed Coca-Cola as a part of his general mercantile business was not maintaining a depot for the distribution of Coca-Cola within the meaning of section 18, chapter 76, Laws 1904.
The applicability vel non of the statute to persons not engaged in a general mercantile business, but in storing, preserving, and distributing meat only, is not before us, and we express no opinion thereon.
Affirmed.