118 So. 606 | Miss. | 1928
It appears from the written statement of the appellant's claim, and the evidence in support and denial thereof, that the Warburton-Beacham Supply Company is a corporation engaged in the plumbing business in the city of Jackson. It maintains a warehouse, in which it keeps a large stock of plumbing materials and fixtures. It also maintains an office, in connection with which is a room where it displays samples of the materials and plumbing fixtures carried by it in stock. The materials and fixtures used by it in fulfilling its plumbing contracts are taken from the stock thereof carried by it; but it sells from this stock plumbing materials and fixtures to any person applying therefor, irrespective of whether or not they are used in connection with contracts for plumbing entered into by it; in other words, such sales are to the public generally. Such sales constitute about twenty per cent. of the appellant's business. *508
Persons engaged in the plumbing business have been accustomed, for more than twenty years, to carry plumbing materials in stock for use by themselves in executing their plumbing contracts, and for sale to the public generally.
Section 3854, Code of 1906, imposes a privilege tax on "each individual, firm or corporation doing a plumbing business in cities or towns . . . where they have waterworks and sewerage." In 1920 this statute was amended by omitting the words "where they have waterworks and sewerage," and was made to read "on each individual, firm, or corporation doing a plumbing, steam fitting or gas fitting business in cities." Section 43, chapter 104, Laws of 1920; section 7730, Hemingway's 1927 Code.
Section 3872, Code of 1906 (section 7756, Hemingway's 1927 Code), imposes a privilege tax on each store. Section 3909, Code of 1906 (Hemingway's 1927 Code, section 7808), permits municipalities to impose a privilege tax not exceeding fifty per centum of that imposed by the state.
The record does not disclose any ordinance adopted by the appellee imposing privilege taxes, but the agreed statement of facts assumes that such an ordinance exists imposing a privilege tax on stores and on the plumbing business in accordance with the statute. Section 239, chapter 118, Laws of 1926 (Hemingway's 1927 Code, section 7813), provides that:
"Any person, firm or corporation pursuing more than one of the businesses herein taxed shall pay the privilege tax on each separate business so conducted or pursued," etc.
Prior to 1926, the appellant paid the appellee the tax imposed on persons engaged in the plumbing business, but paid no tax on a store. In January, 1927, the appellee collected from the appellant, over its protest, a privilege tax on a store for the year 1926, damages for not having paid the tax when due, and a privilege tax on a store for *509 the year 1927, and this suit is by the appellant to recover the money so paid.
The appellant's contention is that the plumbing business includes the selling of plumbing materials to the public generally. What we are called on, then, to do, is to define the words "plumbing business" as used in the statute and ordinance.
According to Webster's International Dictionary, a plumber is "a tradesman who furnishes, fits, and repairs gas, water, and soil pipes, cisterns, tanks, baths, water closets, and their fittings, and other sanitary and fire protection apparatus for a house or other buildings, including junctions in mains and sewers." According to the same lexicographer, "a mechanic or artificer, especially one whose livelihood depends upon manual labor," is a tradesman; plumbing is "a plumber's occupation or trade," and the word "business" includes "any particular occupation or employment habitually engaged in, especially for livelihood or gain."
In Wilby v. State,
One engaged in the plumbing business, then, in the contemplation of the statute, is one who executes plumbing contracts in whole or in part by the labor of others, and, as an incident thereto, he may keep a stock of plumbing materials to be used by him in executing his plumbing contracts. If, from his stock of plumbing materials he sells to the public generally, he is engaged in keeping a store which is defined in Folkes v.State,
The case of Planters' Lumber Co. v. Wells,
Affirmed. *512