Opinion
No. 29574.
February 29, 1932.
1. HAWKERS AND PEDDLERS. Licenses.
Business of transient vending of merchandise possesses distinguishing characteristics justifying classification and legislation thereon, both in matter of license fees and police regulation.
2. LICENSES.
License fee for transient vendors of merchandise may be fixed at amount which will bring them into some fair equality in respect to their share of taxation in community.
3. LICENSES.
Two hundred dollars license tax imposed on transient vendors of fruit and vegetables held not excessive (Laws 1930, chapter 88, section 207).
APPEAL from circuit court of Yalobusha county. HON. GREEK L. RICE, Judge.
Chas. S. Mitchell, of Tupelo, for appellant.
It is well settled that a demurrer is a proper pleading to test the constitutionality of any statute.
State v. Lawrence, 66 So. 747; State v. Tucker, 59 So. 826; Williams v. State, 94 So. 882.
The statute (chapter 88, Laws of 1930), not only violates the letter and spirit of the constitution of the state of Mississippi, but it also violates the letter and spirit of the constitution of the United States.
In the case at bar, the licenses imposed is a "state tax" which requires that the fee exacted, be paid in each of the eighty some odd counties of the state of Mississippi before one would be entitled to engage in this business throughout the state of Mississippi. In other words, a merchant who desired to sell fruits or vegetables within the state of Mississippi, whether they were raised within the state or not, would be required to pay the exhorbitant and unreasonable sum of five hundred dollars to each of the tax collectors of the eighty some odd counties within the state, which would amount to the exhorbitant sum of more than forty thousand dollars annually.
If there is one rule of law that is well settled, when we deal with these questions of licenses and privileges, it is that rule which requires that they shall be reasonable and not arbitrary.
The fee in this case being a license, the legislature of the state would have no power to require such an amount as would be confiscatory or prohibitive, unless the business to be taxed, or licensed, were of such a nature as to be injurious to the public welfare, hurtful to public morals, productive of disorder, and injurious to the public generally.
It is well settled that, except as to those occupations or privileges in respect to which a restrictive or prohibitive fee or tax may be imposed, a license fee or tax, whether under the police power or under the taxing power, can legally be imposed only in such amount as, under the circumstances, is just and reasonable.
37 C.J., par. 41, p. 190; Riley, State Auditor, v. Ayer Lord Tie Company, 113 So. 214.
W.D. Conn, Assistant Attorney-General, for the state.
Under the facts of this case appellant came within the definition of a peddler as laid down by this court in the case of Israels v. State, 127 So. 279, 157 Miss. 143.
The amount of the tax (privilege) is primarily a legislative question. But of course the reasonableness or unreasonableness of a license fee is a judicial question. But the test in each case must necessarily be: On the facts of the case can the legislature be said to have acted unreasonably in fixing or determining the amount of license fee in any particular case.
Garbutt v. State, 116 Miss. 424; 21 R.C.L. 182, sec. 3.
The license fee imposed by section 207 of chapter 88 of the Laws of 1930 is not unreasonable under all of the circumstances.
O'Hara v. Collier, 139 N.W. 870; Duluth v. Krupp, 49 N.W. 235; State v. Jensen, 100 N.W. 644; Garbutt v. State, 77 So. 189, 116 Miss. 424.
Appellant was convicted of a violation of section 207, chapter 88, Laws 1930, which levies, and requires the payment of, a privilege license tax, as follows:
"Vendors, Transient, of Fruit and Vegetables. — Upon each person (whether principal or agent) going from person to person or from dealer to dealer and selling fruits and/or vegetables and making delivery thereof at the time of the sale, two hundred dollars.
"But this tax shall not apply to any farmer (or his agents) when selling anything produced, grown, raised, bottled and/or manufactured by such farmer himself or on his farm."
It is the contention of appellant that the aforesaid section of the privilege tax laws is unconstitutional and void, because, as appellant argues, the classification thereby made is unreasonable and arbitrary, and that the amount of the privilege tax demanded is exorbitant, confiscatory, and prohibitive. After careful attention to the arguments made, we are constrained to reject the contentions so earnestly pressed upon us by appellant.
It is so well settled as to be beyond admissible dispute that the business of peddling, hawking, or the transient vending of merchandise possesses distinguishing characteristics of such a substantial nature as to enable legislative authority to place the business into a class and to legislate upon it as a class both in the matter of license fees and in measures of police regulation. In the matter of the license fees, it is always competent to fix these at an amount which will bring this class into some fair equality in respect to their share of the general taxation in the community, and particularly as compared with the contributions to the general tax burden which is borne by those with whom these transient vendors come into competition. Now, as to these vendors of fruits and vegetables, with whom do they come into competition? In a large measure, it is with the farmers who live and labor in the vicinity or within reach of the towns and cities. And every farmer is burdened with a load of ad valorem taxes which he is forced to meet each year, and often the money which he obtains with which to pay these taxes is earned in whole or in part by the sale from place to place and from house to house in the towns and cities of the fruits and vegetables that he has grown on his farm. Shall it be permitted that transients who may come from anywhere and who pay no local ad valorem taxes shall enter into this competition and pay no sizable privilege taxes for so doing? If so, how long would these markets be availably open to the local farmer? Under the statute here brought into question, a transient can pay two hundred dollars and with modern automotor equipment can go into competition with every farmer in the county, many of whom annually pay, each, largely more in amount of taxes than the sum of two hundred dollars, and all of them in the aggregate pay taxes running into thousands of dollars. This is enough to sustain this statute, without entering upon other considerations which would lead to the same result, and we therefore do not prolong the discussion.
Affirmed.