113 So. 825 | La. | 1927
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *227 This is a claim by the collector of state taxes for an additional license for the year 1924, and for a license for the years 1925 and 1926. And the defense is that the collector has delayed too long in seeking to collect the additional license for the year 1924, and that defendant, being a manufacturer, is not liable for any license for the other two years.
When that case was decided the Legislature had not defined what it meant by requiring that action be taken promptly, and, accordingly, the court was free to give that expression what meaning it thought just. But immediately following that decision the *228 Legislature made its meaning clear by providing that claims for licenses and for additional licenses shall be made within three years from the time said licenses become due, and that no inaction on the part of the collector should debar the right to proceed within that delay. Act 148 of 1906, p. 252. And Act 233 of 1920, § 33, p. 436, must be construed in connection with said act of 1906.
The process of extracting the crude oil from cotton seed consists essentially of crushing and grinding the raw cotton seed, then heating it and pressing out the oil.
The process of refining crude cotton seed oil and rendering it edible consists essentially of treating it with chemicals so as to rid it of impurities, give it an attractive color, and make it wholesome and palatable.
Both processes are accomplished by the use of machinery, and by the application of human skill to the various operations required to produce the desired result. So that in the one case crude oil is produced from the seed, and in the other edible oil is produced from the nonedible oil. Both are in our opinionmanufacturing processes, and defendant is therefore a manufacturer.
"A dealer is not one who buys to keep, or makes to sell, but one who buys to sell again. He stands between the producer and the consumer, and depends for his profit, not upon the labor which he bestows on his commodities, but *229 upon the skill and foresight with which he watches the markets.
"[On the other hand] a manufacturer is not * * * [exclusively] one who produces a new article out of materials entirely raw. He is [also] one who gives new shapes, new qualities, new combinations to matter which has already gone through some artificial process; * * * and depends for his profit upon the labor which he bestows upon the raw [or partially manufactured] material."
See, also, City of New Orleans v. Ernst, 35 La. Ann. 746.
Hence one who converts crude cotton seed oil, wholly unfit for human consumption, into an edible article, by giving it a new quality, i.e., making it wholesome and palatable, is essentially a manufacturer; and a fortiori when his process begins with the very cotton seed itself.
And it would serve no purpose to list the various occupations which this court has held to constitute manufacturing; for upon analysis we find that each decision is grounded upon the fundamental distinction laid down in New Orleans v. Le Blanc, supra.
Section 3 of said Act of 1920 expressly laid a license tax on manufacturers. But the provisions of that section were omitted from the act of 1924. And this was done apparently ex industria; for the penultimate clause of section 25 of the Act of 1924 provides tot verbis that the provisions of said section shall apply to any other business not provided for in the act, or by "separate law," except manufacturing.
Now the "separate law" above mentioned clearly meant somespecial law, and not an omitted section of some former general license law. For it is clear that any business not otherwise provided for in the act, or by some special law, must come under the provisions of said section 25, notwithstanding that it might have been otherwise provided for in some previous general license law; since the general license law was clearly intended to cover the whole subject-matter of licenses except so much thereof as might be covered by some special, i.e., "separate," law. In other words, it was clearly the intention of the act of 1924 to repeal the omitted sections of all former general license laws and replace them by section 25; since the provisions of such former laws would be clearly inconsistent with the provisions of said section.
And hence when the legislator provided that the provisions of said section 25 should not apply to manufacturers he meant, not *231 that manufacturers should be taxed in conformity with the provisions of some omitted section of former license laws, but that they should not be taxed at all. Otherwise we would have the queer spectacle of a section patently omitted at the beginning of the act and yet reinstated by inference only towards the end of the same act, when the logical thing to do, if the legislator intended the section to continue in force, was to let it stand as in the former act and thus remove all occasion for doubt.
Nor does it change the situation that the act provides (section 28) that nothing therein shall be construed to affect or repeal any existing laws levying license taxes on business and occupations not enumerated in the act. The "existing laws" there meant are special laws, not general laws; for all general laws on the subject of licenses were merged into section 25 aforesaid. And we again repeat that the legislator could never have intended to do the inane feat of patently omitting a section of the law in order to give it force by inference only.
The contentions of the state to the contrary are therefore unsound.
Addendum
A rehearing was granted in this case, as the license due by defendant company for the year 1924 was erroneously calculated in our original opinion upon the basis of gross sales of refined oil during the year 1923 amounting to $315,759.90.
These figures appear in an "agreed statement of facts on the trial of the rule" found on page 27 of the record, and, from a memorandum appearing on the statement of facts, the full amount of the license for the year 1924, as calculated under section 3 of Act 233 of 1920, is shown to be the sum of $300. From this amount we deducted the sum of $100, previously paid as a license for the year 1924 by defendant company, and rendered judgment in favor of the state for the balance of $200, as the present suit (No. 5608 on the docket of the lower court) is for an additional license tax for the year 1924.
On application for rehearing, our attention was called to the fact that the statement of facts on which we relied for the calculation of the license tax of 1924 in this case had been filed in another suit (State of Louisiana v. Gulf Valley Cotton Oil Co., Limited, No. 5604 on the docket of the lower court), and was inserted in the transcript by the clerk of the lower court through error and inadvertence.
It is not possible for the members of this court to examine each record before us with microscopic care, and naturally we presume that a statement of facts found in the transcript properly belongs there.
The rule taken by the tax collector in this case sets forth that there was due the state a license of $1,000 for the year 1924, based upon defendant's business being more than $1,000,000 and less than $2,000,000. On the trial of the rule, the state was denied the right to prove the gross receipts of defendant during the year 1923, on the objection of counsel for defendant that no rule had been *233 taken by the tax collector to traverse the affidavit made by said company, and that it was too late to traverse same, as the tax collector had issued a license to the company for the year 1924. As we have decided that the state is entitled to recover an additional license for the year 1924, and as there is no evidence in the record upon which such license can be based, it becomes necessary to remand the case.
It is therefore ordered that this case be remanded to the lower court for the purpose of determining in due course the amount of license due to the state of Louisiana by defendant company for the year 1924, based upon the annual gross receipts of said company during the year 1923, and for further proceedings according to law.
It is further ordered that defendant company, appellee, pay the costs of this appeal, and that other costs in the case await the decision in the lower court.