Johnson v. Long Furniture Co., 74 So. 283

Johnson v. Long Furniture Co.

74 So. 283 | Miss. | 1917

Ethridge, J.,

delivered the opinion of the court.

Plaintiff, J. C. Johnson, State Revenue Agent, filed suit against the Long Furniture Company, a corporation, doing business at Hazelhurst in Copiah county, Miss., for a privilege tax of one hundred dollars per year for each of the years 1909, 1910, 1911, 1912, 1913, and 1914, and also for one hundred per cent, damages for failure to pay said privilege tax within the time required by law. The testimony shows that the defendant was carrying a stock of coffins, and was, in connection with the coffin business, operating a hearse, and would, when a person applied therefor, prepare the body for burial and bury it, charging extra compensation for this service. Also that they kept embalming fluids, and would, when requested, have the body embalmed for burial, charging therefor. There was a judgment for the defendant below, from which judgment the revenue agent appeals.

*377This case is precisely like the case of W. Ed Smith, Tax Collector, v. C. B. Perkins, decided by this court December 23, 1916 (73 So. 797), in which it was held that persons so engaged are liable for undertakers’ privilege tax. It is urged here in the present case that the case of W. Ed Smith, Tax Collector, v. C. B. Perkins, supra, was erroneous because the decision writes something into the statute that the legislature had not written there, and that the result was that the supreme court had legislated in the matter. This is an erroneous view of the decision. The statute (Laws 1916, chapter 90) imposing the privilege tax imposes a tax upon all persons engaged in the business, but undertakes to except out of the statute a certain class known as merchants who had paid a privilege tax as merchants, and this clause excepting merchants being a separable provision, and, being void because it denies the equal protection of the law to people not merchants, could be separated from the body of the act on the principle that where a part of a statute is unconstitutional and can be separated from the main statute without impairing the act as a whole, it may be done. This principle was distinctly recognized and decided in Adams, State Revenue Agent, v. Standard Oil Company, 97 Miss. 879, 53 So. 692. This case having been tried in the court below prior to the decision of the case of W. Ed Smith v. C. B. Perkins, and being decided contrary to the view there held, the case i§ reversed, and, as there is no dispute as to the facts, judgment will be entered here for the amount sued for.

Reversed, and judgment here.