113 Tenn. 167 | Tenn. | 1904
delivered the opinion of the Court.
The facts upon which the questions to be determined .in this case rest fully appear in the agreed statement, appearing in the record, and’ need not be more particularly referred to than as stated below.
For the purpose of deciding the question involved, it need only be stated that the steamer C. H. Organ is owned by the West Memphis Packet Company, a corporation chartered under the laws of the State of Arkansas, and engaged in plying between two or more points in that State and the city of Memphis, Tennessee; that Foppiano is the lessee of the bar privileges, and as such lessee retailed liquors and beer thereon during the years 1901, 1902, and 1903, and is still so engaged. Liquors are sold from the bar at all times when cus
The county court clerk of Shelby county,' deeming Poppiano liable for the taxes imposed by the State of Tennessee upon persons selling beer and liquors upon steamboats, notified him through the revenue agent of the State. After a hearing the clerk held that Poppiano was liable for the tax, and from this holding an appeal was taken to the State board of equalization, which board affirmed the holding of the county court clerk. Thereupon plaintiff in error paid, under protest, the amount of the tax, with penalties and costs, and instituted this suit to recover therefor.
The statutes, under which the tax was imposed, contain the following provisions:
“Liquor Dealers. . . . Persons selling beer, or any quantities of liquor on steamboats, or any other vessel, or watercraft, or from railroad cars, shall pay a tax, each, in lieu of all other taxes, to be paid in any county they may elect, per annum, two hundred dollars.” Acts 1903, p. 615, c. 257; Acts 1901, p. 214, c. 128; Acts 1899, p. 1032, c. 432.
1. It is insisted that the county court clerk had no
Section 30, chapter 258, page 660, Acts 1903, provides that the clerk of the county court shall collect all privilege taxes. Section 31 provides: “That any property or properties included in this act shall be back, or reassessed for the period'now provided by law, viz.: (1) When the same have been omitted from or escaped taxation. . . . (5) When the owner, or his agent, fails, refuses, or neglects to list the property to the assessor, as required by law.”
Section 46 provides: “That it shall be the duty of the assessor to make a return to the county court clerk of the name of each person, company, firm, or corporation, engaged in any business liable in any way to pay a privilege tax in each district or ward under the provisions of the law. It shall be the duty of the judge, or chairman of the county court, and of the county court clerk to examine the lists so returned, and compare the same with the list of persons paying privileges; and he shall report the result to the quarterly court at the July term following the assessment,, and the said report shall be read in the full meeting of the county court.” See, also, Acts 1901, p. 334, c. 174, sec. 31; Acts 1899, p. 1112, c. 435, sec. 32.
Ordinarily, of course, the terms “assess” and “assessment” apply only to ad valorem taxation, when used in respect of tax laws; but it is seen that under section 46 the duty is devolved upon the assessor to report to
Construing together tbe several provisions referred to, we tbink it clear that tbe word “assess,” when used in connection with privilege taxes, means simply • tbe listing of tbe names of tbe persons exercising privileges, with tbe designation of tbe privilege. It may or may not include an extension of tbe amount fixed by tbe statute for tbe exercise of sucb privilege. In this sense, we tbink tbe clerk of tbe county court may “back assess or reassess” privilege taxes that bave escaped listing and collection.
But we do not tbink that it is at all necessary that there should be sucb back assessment or reassessment of privilege taxes, since tbe statute fixes tbe amount, and makes it tbe duty of all persons exercising privileges to come forward and obtain a license from tbe clerk, and pay therefor tbe amount fixed by law. Acts 1903, p. 657, c. 258, sec. 28; Id., p. 643, c. 257, sec. 14; Acts 1901, p. 228, c. 128, sec. 18; Id., p. 331, c. 174, sec. 28; Id., p. 352, c. 174, sec. 48; Acts 1899, pp. 1109, 1112, c. 435, secs. 29, 31; Id., p. 1051, c. 432, sec. 15. Under these statutes it is not only tbe duty of tbe person exercising tbe privilege to promptly pay the tax, but it is also tbe duty of tbe clerk of tbe county court to call
2.' Tbe center of tbe Mississippi river is tbe line between Tennessee and Arkansas (Moss v. Gibbs, 10 Heisk., 283; Stockley v. Cissna, 119 Fed., 821, 56 C. C. A., 324; Missouri v. Kentucky, 11 Wall., 395, 20 L. Ed., 116), and we are of the opinion that for exercising the privilege referred to within the limit just stated plaintiff became liable for tbe tax.
3. We do not think that the retailing of liquors under tbe circumstances stated (even though conducted on a steamboat engaged in interstate commerce) was, itself, interstate commerce. Tbe question is discussed, and tbe reasons for this view are given, in an opinion delivered by tbe chief justice at tbe present term in tbe case of Leslie L. Harrell v. R. A. Speed, Clerk, 5 Cates, 224 (81 S. W., 840), to which we refer without further elaboration.
Affirm tbe judgment of tbe court below, with costs.
