174 La. 814

#### STATE v. CHICAGO HAT WORKS.

No. 31660.

Supreme Court of Louisiana.

April 25, 1932.

*845Dresner & Dresner, of New Orleans, for appellant.

Charlet J. Rivet, of New Orleans, for ap-pellee.

LAND, J.

The state tax collector for the city of New Orleans,has brought the present suit to collect from defendant the sum of $225, as license taxes for the years 1980 and 1931, together with 2 per cent, per month interest on $110 from March 1, 1930, and on $115 from March 1, 1931, and 10 per cent, attorney’s fees on both principal and interest.

The state alleges that defendant, Jacob Joseph, is the proprietor of the Chicago Hat Works, and is engaged in the business of cleaning and pressing hats at 715 Poydras street in the city of New Orleans, without having paid a sufficient license tax for the year 1930, and none for the year 1931, defendant having paid only $15 for 1930.

The state further alleges that the gross receipts from the operation of defendant’s business for'the year 1929 were more than $16,-000, and less than $20,000, and for the year 1930 were more than $12,000 and less than $16,000, and that the license taxes sued for are due, under section 25 of Act 205 of 1924 —the omnibus clause of this act — as amended by Act 241 of 1928, § 3.

Eor answer to the state’s rule in this case, defendant admits that he is engaged in the work of cleaning, blocking, and repairing hats, and alleges that he does this work with his hands, and with the aid of machinery, tools, and implements, and was so engaged in the year 1929, and continuously thereafter up to the present time. But defendant avers that, in doing this work, he is engaged in a mechanical pursuit and is exempt from the license tax sought to he collected by the state, under section S of article 10 of the Constitution of 1921.'

Judgment was rendered in the lower court for the state as prayed for, with recognition of a first mortgage lien and privilege in favor of the state upon the property, movable and immovable, of the defendant, as security for the license taxes sued for; and defendant was enjoined from the further pursuit of his business of cleaning and pressing hats until satisfaction of the judgment rendered against him.

Prom this judgment defendant has appealed.

1. The uncontradicted testimony in the ease shows that defendant works daily in his cleaning establishment, and uses his hands and machinery in the cleaning and blocking of hats; that he has two men at the bench working with him, and a girl to help sew the bands on the hats; and that, if he is busy, he gets extra help.

The manner in which the work is done is described by defendant as follows: “When the hat comes in at my place we take the band off the hat, and the inside hand, and then we clean that hat — put it in a machine and we clean it. And we dry the hat, and after the hat is dried, the hat is put on a block and it is steamed, have a big boiler where we steam the hat, and pull the hat down on the block very tight, put a rope around the block, and it is steamed, and afterwards we have a machine, an ironing machine, which works by electricity. We put it on and the machine irons the hat. Afterwards we powdér the hat whatever color the hat is, and put water on top of the powder and it is ironed again, and it is pounced with very fine sandpaper. Then the same thing is done — that is only done to the crown of the hat — and the same thing 1⁄8 done to the brim. Then it is— the hat goes to the trimmer, to put the band on again, put the sweat band inside the hat again, and lining, if necessary. And we have an electric sandbag — first, it is ironed by hand with a gas iron, iron the hat, and then it is put with a heavy bag of sand heated by electricity, and after this when the hat is all pressed and ironed well, it is finished up again in a nice, smooth way, and the hat is completed.”

Defendant claims exemption from the payment of a license tax under section 8 of article 10 of the Constitution of 1921, the pertinent provisions of which are as follows: “License taxes may be levied on such classes of persons, associations of persons and corporations pursuing any trade, business, occupation, vocation or profession, as the Legislature may deem proper, except * * * those engaged *in mechanical** * * *•pursuits.”*

In Theobalds v. Conner, 42 La. Ann. 789, 7 So. 689, 690, the court said: “A ‘mechanic,’ according to Worcester, is one employed in mechanical or manual labor; and ‘mechanical’ is defined to be ‘employment in manual labor.’ Taking the phrase ‘engaged in mechanical pursuits’ according to these defini*846tions, and it is clear that the framers of the constitutional article intended to relieve from license those persons *who are engaged, from day to da/g,*in the performance of manual labor in mechanical or agricultural pursuits.” (Italics ours.)

In City v. Robira, *42*La, Ann. 1099, 8 So. 402, 403, 11 L. R. A. 141, it is said: “The purpose in view seems clearly to have been to exonerate those who, in pursuits known to be mechanical, would exert more manual than intellectual labor; so that the occupation was to be one for the practice of which the efforts of the body, aided by some meehánical instrument, would be mainly called into activity, to be controlled by an ordinary intelligence only.”

According to the facts of this case, and the definitions above 'given, defendant is obviously engaged in a mechanical pursuit, and is clearly exempt from the payment of the license taxes for which he is sued by the state in the present case.

2. The mere fact that defendant employs one or more assistants does -not affect his right to the exemption.

In the case of City v. Bayley, 35 La. Ann. 545, the court said: “A ‘mechanic *who employs assistance’*is exempt from a license tax upon his trade, under the clause of the Constitution excepting- those engaged in mechanical pursuits from the enumeration of occupations liable to such tax. * * *

“The defendant is a plasterer, works at his trade *with his own. hands,*and when executing a larger contract than he can conveniently do himself, *employs other plasterers to assist Mm.*

“Manifestly he is engaged in a mechanical pursuit.” (Italics ours.)

Again in City of New Orleans v. Lagman, 43 La. Ann. 1180, 10 So. 244, it was held that: *“A*mechanic who contracts and shapes materials with his own hands is engaged in a mechanical pursuit.

“1-Ie will be exempt, *although he employs other mechanics, who woi'k with him,*and, like him', follow a mechanical pursuit. * * *

“The record discloses that the defendants are *carpenters.*They build houses and other structures. Their labor was manual and in its performance they used the spirit-level, the squares, the saw, hammer, and other carpenter’s tools. They manipulated and gave shape to the material in building.

“The witness Lagman testifies: T contracted for buildings in 1888 and 1889. It was pretty near all days’ work. I followed the carpenter’s trade all along. I performed manual labor on the buildings myself, from the first piece of timber, in framing, in finishing, to the very completion of the house.’ * * *

“The attempt to hold the defendants responsible for the payment of a license as master builders must fail.

“The undisputed evidence before us establishes *that they were engaged as carpenters,*and, as the house was constructed, ‘continued to use the tools and appliances of that mechanical pursuit.’

*“The fact that others assisted*cannot exclude them from the exemption.

“As in the Bayley Case, *they worked at their trade with their omi hands,*and were therefore engaged in mechanical pursuit.” (Italics ours.)

The evidence shows that the defendant in the case at bar worked every day in his cleaning establishment like the other workmen there, and used his hands and the machinery and equipment in his place of business in cleaning and blocking hats. The Bayley Case is therefore identical with the present case.

In State v. Hirn, 46 La. Ann. 1443, 16 So. 403, the court said: “The occupation of the barber is mechanical, exempted from a license tax by the constitution; nor is the exemption denied *because he employs other barbers in conducting his business.** * *

“That the occupation of a barber is mechanical admits of no dispute. His labor is manual, using with his hands the instruments required for his employment. He comes within the definition of a mechanic, and his pursuit has been recognized as mechanical by the decisions of this court. State v. Dielenschneider, 44 La. Ann. 1116, 11 So. 823.

“The exemption claimed is denied by the state, *because he employs other barbers to assist in serving his customers.' We do not perceive that availing himself of the assistance of other barbel's takes him out of the coemption. He is still a barber, although working with other's. He and they are alike exempt from license taxes.*

“The state relies on the twelfth section of the license act (No. 150 of 1890). That undertakes to tax mechanics who employ assistance. Thus, while the constitution exempts all engaged in mechanical pursuits, *the statute proposes to tax mechanics who employ assistance.*This is manifestly *contrary to the constitution,*and has been so held by this court. City of New Orleans v. Bayley, 35 La. Ann. 545; City of New Orleans v. Lagman, 43 La. Ann. 1180, 10 So. 244.” (Italics ours.)

3. Nor does the size of the income of defendant affect his exemption from the payment of a license tax.

In our opinion, those engaged “in mechanical pursuits” ar.e no more amenable to the payment of license taxes, because of the amount of their annual incomes, than are those engaged “in agricultural pursuits,” be*847cause they may have made good crops for particular years.

It is the nature of the work in which the individual is engaged that determines whether or not he is exempt. Manifestly, the constitutional exemption is not limited to those engaged in mechanical pursuits, whose gross incomes do-not exceed a certain amount, and who do not employ others to assist, but embraces all persons engaged in such pursuits.

It is therefore ordered that the judgment appealed from be annulled and reversed.

It is now ordered that the injunction herein issued, enjoining defendant from the further pursuit of his business, be dissolved and refused; that the first mortgage lien and privilege, recognized in favor of the state on the property, movable and immovable, of the defendant, be canceled and erased; that the state’s demands be rejected; and that the state’s suit be dismissed.

ST. PAUL and BRUÑOT, JJ., dissent.