Brittian v. Robertson, 83 So. 4

Brittian v. Robertson

83 So. 4 | Miss. | 1919

.Smith, C. J.,

delivered the opinion of the court.

This is an appeal from decree dismissing a bill exhibited by the appellants against the appellees; the cause having been heard on bill, answer, and proof.

It appears from the record that the appellants are, and have been since 1909, engaged in the mercantile business in Hazlehurst Mississippi, which municipality was classified as a city by proclamation of the Governor *689on tlie 19th day of February, 1906. In connection with their mercantile business the appellants sell coffins and also do an undertaking business. They have paid annually the privilege tax required of them on their stock of goods as merchants, but have paid no separate tax on their coffin and undertaking business, for the reason that they were advised in 1910 or 1911 by their attorney and the tax collector then in office that they were not liable therefor. In 1914, J. C. Johnson, the then state revenue agent, sued the appellants for the taxes alleged to be due by them on their coffin and undertaking business for the years 1909 to. 1914, inclusive; but this suit was* dismissed by the plaintiff, after the circuit judge had ruled in another case that section 3791, Code of 1906 (section 6494, Hemingway’s Code), does not apply to a merchant doing an undertaking business, who pays the regular privilege tax on his stock of goods, on which ruling the appellants say they also relied in riot paying the taxes accruing thereafter.

In December, 1916, this court held in the case of Smith v. Perkins, 112 Miss. 870, 73 So. 797, and again in Johnson v. Long Furniture Co., 113 Miss. 373, 74 So. 283, that 'merchants doing. an undertaking business are liable for the privilege tax imposed thereon by section 3791, Code of 1906 (section 6494, Hemingway’s Code). In February, 1917, the tax collector of Copiah county was proceeding under the direction of the. revenue agent to collect from the appellants the taxes due by them on their coffin and undertaking business for the years 1914, 1915, and 1916, and also the damages imposed by section 3901, Code of 1906 (section 6630, Hemingway’s Code), for the failure to pay privilege taxes when they became due, whereupon the .bill here in question was filed, by which it is sought to enjoin the collection of the damages; the liability of the appellants for the payment of taxes being admitted.

*690The ground upon which it is sought to maintain the hill is that section 3901, Code of 1906 (section 6630, Hemingway’s Code), does not apply where the failure of a person to pay a privilege tax due by him is caused by his honest belief that he is not liable therefor. The statute contains no such exception, either expressed or implied; consequently the judgment of the court below is correct.

Affirmed.

HoldeN, J., did not participate in the decision of this case. ,