Carter v. State

60 Miss. 456 | Miss. | 1882

Cooper, J.,

delivered the opinion of the court.

Sect. 585 of the Code of 1880 enumerates the privileges upon which a tax is levied by the State.

For convenience, all privileges taxed are named in one section, which consists of many paragraphs. The phraseology is varied in the various paragraphs, each of which treats of a different and distinct subject. In some of them the tax is levied upon the person prosecuting the business, as each lawyer, each deutist, each broker; in this class, the tax being personal, must be paid by every person following the vocation, though two or more are employed in it as partners. In others it is upon the business itself, as each store, each bank, each hotel, each restaurant; in this class but one tax is levied, though more than one person may be interested in the business ; in other paragraphs the place of business or the article. used in it is taxed, as each room or hall used as a theatre; each billiard or Jenny Lind table.

Sect. 589 makes it unlawful for any person to exercise any of the privileges enumerated in sect. 585, without first having obtained a license so to do, and sect. 595 declares that such license “ shall be a personal privilege, enjoyable only by the person to whom it is issued, and it shall not be transferable.”

The object of the Legislature, in prohibiting the transfer of the license, was to prevent a sale of it by one retiring from the business to one about to embark in it, and to prevent evasions of the law by the use of the same license by two persons at the same time. If the license could be ti’ansferred a door would be opened for the perpetration of frauds upon the law, and one indicted for its violation could easily sustain a fabricated defence, by purchasing a license, and procuring the owner to date the transfer anterior to the commission of the offence charged in the indictment.

In the case at bar it was the business (keeping a restaurant) which is taxed, and the tax is the same, whether one or more persons are engagedin.it. If the firm had been in existence at the time of the issuance of the license, it would not have been necessary for each member to have paid a tax; but the payment by one would have protected all. The evidence shows that the restaurant, for the keeping of which the appellant was indicted and convicted, is the same for which a license fee had been paid by Thaekston ; that there has been no sale of the business or transfer of the license, but that the appellant has, since the date of its issuance, become a partner with Thackston in the business. We think, under these circumstances, the license protected both members of the firm, just as it would have done if the firm had been in existence at the time of the payment of the license fee.

The case having been submitted on an agreed statement of facts, which does not establish the guilt of the appellant, the judgment is reversed and the appellant discharged.