City of Pascagoula v. Carter

101 So. 687 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

The appellee-, James J. Carter, was charged with violating an ordinance of the city of Pascagoula by carrying on the business of automobile dealer in said city without paying the privilege tax. He was convicted in the city court and appealed to the circuit court, where the case was tried on an agreed statement of facts which is as follows: (

“It is agreed by the parties hereto that this cause may he submitted to the presiding judge for decision, a jury being waived, on the following state of facts, which are agreed to be the facts on which the charge was made, and on which the defendant was convicted in the city court, from which he appealed, to-wit:

“J. J. Carter, the defendant herein, is an adult citizen of Jackson county, residing in the northern part of said county, and being the head of a family. The- Lucedale Auto Company is a corporation chartered and organized under the laws of the state of Mississippi, domiciled at the town of Lucedale, in the county of George, state- of Mississippi, where it has a place of business and its office, and at which point it engages in a general garage business, and buys and sells automobiles. Said corporation has a number of employees to whom it pays salaries, both for work done in the principal place of business at Lucedale-, and for services rendered the company in selling automobiles in other places. Said Lucedale Auto Company has paid privilege taxes in the town of Luce-dale, ...and in the county of George, authorizing it to engage in the garage business, and also as an autoinpbile dealer, as provided by section 6, Laws 1924, page 122, amending chapter 104, Laws 1920. ■

“For two months or more prior hereto, J. J. Carter, defendant in this cause, has been in the employ of-the Lucedale Auto Company, a corporation, as an automobile salesman in Jackson and George counties, that is to say, said J. J. Carter, in consideration of a monthly. salary paid to him by the Lucedale Auto Company, has offered for sale and was employed to offer for sale in the counties of Jackson and George, Ford automobiles, trucks, and tractors. All automobiles, trucks, and tractors, and other merchandise owned by the Lucedale Auto. Company are kept or stored at Lucedale, it having; no other place of business, and said J. J. Carter kept no stock on hand for the Lucedale Auto 'Company; but it was his duty, and in the scope of his employment, to take orders for merchandise for the Lucedale Auto Company, and arrange cash or credit sales for them, the same to be passed on and approved by the Lucedale Auto Company at Lucedale. If a sale were made by J. J. Carter, the articles would be delivered to the purchaser where bought for the account of the Lucedale Auto Company.

“It is further .agreed that on the 19th day of June, 192.4, said J. J. Carter, representing the Lucedale Auto Company, a corporation, agreed with one Eugene Hudson for the sale of a Ford or secondhand Ford automobile belonging to the Lucedale Auto Company, the same to be sold for a consideration of two hundred and ten dollars, of which the sum of fifty dollars was paid in cash, and the balance was. to be paid in installments evidenced by promissory notes. The purchase money and notes were delivered to the Lucedale Auto Company by J. <7. Carter, and the automobile was .delivered to the purchaser, .and this transaction occurred in the city of Pascagoula, whither’ J. J. Carter had come temporarily from his home in the northern part of the county, it being expressly understood that J. J. Carter 'maintained no place of business in the city of Pascagoula, either for himself or the Lucedale Auto Company, but merely visited that vicinity occasionally in the course of his business, on which occasions the said Carter solicited and made sales of new and secondhand autos, wholly for account of said Lucédale Auto Company, as in the case above stated of Eugene Hudson.

“It is further agreed that neither the Lucedale Auto Company nor J. J. Carter obtained any privilege license from the city of Pascagoula as an automobile dealer.”

The circuit court rendered a judgment discharging the defendant and entered judgment of not guilty, from which the city appeals and asks .a. construction of section chapter 117, Laws of 1924, the pertinent part reading as follows:

“Privilege tax for automobile dealers:

‘1 On each person, firm or corporation, dealing in automobiles, whether as dealer, agent, or subagent, in cities . . . of less than fifteen thousand inhabitants, and more than five thousand inhabitants, seventy-five dollars. ...

“And each person or individual selling or offering for sale automobiles, whether new or secondhand, shall pay this tax.”

It appears from the agreed statement of facts that neither the Lucedale Auto1 Company, nor the defendant in the court below, had a place of business in the city of Pascagoula..; neither kept any automobiles in stock, and it is not shown that a. regular established business or an established agency was located in the city. It only appears that a few individual sales or trades were made within the city limits, it appearing- that the defendant lived in the county district of Jackson county and was not an inhabitant of the city, and had no established business there. It further1 appears that the Lucedale Auto Company had a place of business a.t Lucedale arid it there paid state and municipal taxes on its business. It also appears in the agreed statement of facts that the sales made by the defendant were sent to the Lucedale Auto Company for its approval and were subject to the approval of such company. Tinder this state of case, there was no dealing, within the statutory meaning, within the municipality of Pascagoula. The statute does not contemplate that each employee of a person or corporation engaged in such business shall pay a privilege tax, but the tax is on the business payable by the person who owns and operates the business. Of course, if a general agent, such as the manager or person having control of the business.located in the city, operates a business, he would-be liable for thp tax if it is not paid by the owner, but this, liability does- not extend to every employee who- does any part of the business of the principal. Therefore the circuit court correctly decided that the appellee was not guilty and the judgment is affirmed.

Affirmed.