162 S.E. 771 | S.C. | 1932
February 24, 1932. The opinion of the Court was delivered by This case involves the construction of an ordinance of the City of Camden. The plaintiff, Pee Dee Chair Company, is a corporation with its principal place of business in the City of Darlington, S.C. where it is engaged in the manufacture and sale in wholesale quantities of chairs and other *88 furniture to retail dealers at other points, delivering its products by railroad or by its own trucks, without charge to the purchasers. On June 20, 1931, in pursuance of a previous order, it delivered some chairs by its own truck to the Camden Furniture Company, at Camden, S.C. When the delivery was completed, the driver of the truck, a salaried employee of the chair company, was arrested by a police officer of the City of Camden, upon the charge that such delivery of merchandise constituted a violation of an ordinance of that city requiring the payment of license taxes on certain businesses or occupations carried on in the city. By agreement the charge against the driver was withdrawn upon the payment by the chair company to the city of a license tax of $50.00, which was paid under protest, and the company thereupon brought this action against the city to recover the amount so paid. The case was heard before his Honor, Judge W.H. Townsend, who passed a decree directing that the plaintiff recover judgment against the city for $50.00 and costs, upon the ground that the delivery of the chairs by truck was, under the circumstances of the case, "a mere incident to plaintiff's business in Darlington, and did not constitute a doing of business or occupation by plaintiff or its agent in Camden, within the meaning of the ordinance, and was not taxable." From this decree defendant appeals.
The ordinance in question requires that every person, firm, company, or corporation engaged in any business, calling, profession, or occupation, in whole or in part within the City of Camden, as specified therein, shall obtain a license therefor before entering upon such business, calling, profession, or occupation, fixes the penalty for violation of its terms, and provides, inter alia: "The following sum or sums of money are required to be paid to the said clerk and treasurer for a license to carry on the business, calling, profession or occupation in whole or in part within the limits of the City of Camden, as in each case specifically appears. * * * *89 Trucks hauling merchandise, in or out of the city either in connection with or without fruit and green produce $50.00."
It will be noted that the ordinance requires the payment of a license tax for carrying on a "business, calling, profession or occupation" within the city limits of Camden, and the tax here was charged as for "trucks hauling merchandise." The only question, therefore, is whether the chair company, by its delivery of the chairs under the circumstances related, was carrying on the business designated as "trucks hauling merchandise."
A statute or an ordinance requiring a business license or imposing a license or occupation tax must be construed liberally in favor of the citizen and strictly against the government, and no one can be held to payment of the tax unless he comes clearly within the terms of the particular statute or ordinance. See 37 C.J., 212, 213, 249;Crenshaw v. Moore,
It is not always an easy matter to give a satisfactory definition of "business" or "occupation," as used in a statute or ordinance like the one before us, but the terms ordinarily carry with them some idea of custom or continuity as opposed to an isolated or sporadic act.
In 37 C.J., at page 216, it is said: "Engaging in or carrying on a business, within such a law, does not embrace acts performed preliminary and preparatory to engaging in business; or acts performed after the business has ceased, incidental to the preservation of property. The performance of a single act, or even a number of isolated acts, pertaining to a particular business, does not constitute engaging in or carrying on such business within the meaning of a law imposing a license or tax thereon, unless an intent to engage in *90 the business is clearly apparent." And at page 265: "Although, under some circumstances, a single act pertaining to a given business or occupation, without a license, may be sufficient to constitute an offense within the contemplation of the statute or ordinance, as a general rule a single act pertaining to a particular business is not, when done without a license, engaging in or carrying on such business, so as to constitute an offense; it is only repeated and continuous acts that constitute the offense."
In Town of Plymouth v. Cooper, supra, the defendant was convicted of carrying on a livery business without a license in violation of a city ordinance, which contained the following provision with reference to taxation: "On livery stables and persons keeping a horse or horses for hire, or doing any livery business or hiring of horses in the town, $7.50. This shall include any persons making contract for hire in town, or carrying any person with a vehicle out of the town for hire." It appears that defendant was a resident of the village of Roper, N.C., where he carried on a livery business, having obtained from the county and State the license required by law. While at his home he received a letter from a traveling salesman at Elizabeth City, N.C., asking him to meet the salesman at Plymouth, N.C., and convey him to Roper and thence to other points. Defendant wrote the salesman that he would do so and did do so, whereupon he was convicted of carrying on a livery business in Plymouth without a license. On appeal, the Supreme Court of North Carolina, in declaring the ordinance not only unreasonable but clearly unlawful, adverted to the fact that the town relied on a single act of the defendant as constituting a "business," but said that the town could not, by calling a single act a "business," make it so nor create the right to tax where it did not already exist, but added: "If the defendant had made a business of sending his hacks regularly into the Town of Plymouth, the case would be different, but there is neither evidence nor suggestion of such a fact." *91
In White Oak Coal Company v. Manchester,
In Cary v. North Plainfield,
In State v. Moorehead,
State v. Napier,
While, as suggested, a single act might, under some conditions, constitute the carrying on of a "business" within the contemplation of a license tax statute or ordinance (see the Tennessee case of Trentham v. Moore,
The judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES CARTER and BONHAM and MR. ACTING ASSOCIATE JUSTICE FEATHERSTONE concur. *94