Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1871-05-24
WHISKY.
DeoIsIOn If Judge Halssy % the Privl.
legs Tax

Isgs Tax
Some time ago the liquor dealers of the
city formed a combination to resist the
whisky tax which was recently imposed
by the Legislature. An agreed case was
got up, and yesterday Judge Halsey gave
the following decision upon It:
TEE CASE.
G. A. Eckerly VS.. Harvey Mathes and M.
J. Wright-In the Second Circuit Court
OF Shelby County.
This is a motion TO dismiss petition FOR
CertiOrari and supsrBedeas.
The question for determination is this:
Can the privilege tax of $3.50 for the State
and $3.50 for the county be collected OF
wholesale liquor dealers under the section
5, chapter XIV, sets of 1878, and the
acts Rm~endagory thereto.
To defeat the collection of this tax the
petitioner assume W positions. First
That the law imposing the tax is unoOn-
stftutiOnal. SecOnd-That if constitu-
tional, it hiss been repealed.
Under this constitutional provision the
| Legislature has s%uthUrity TO declare any
particular trade, business or svOcatlon a
privilege" and to define and prescribe
the terms upon which it may be exercised
or pursued. The business Of selling
liquors &c wholesale may therefore be de-
clared q privilege" and taxed as such in
the discretion of the Legislature. Such a
tax is quite independent of and distinct
from the Ud UGtorem tax levied upon
liquors as property.
CLASS LEGISLATION.
It is the right to sell, and not the pro-
perty, that is taxed. This is an answer to
the argument that the same property is
twice taxed. Neither is it a tax upon
sales of merchandise, for it is immaterisl
whether the ssles be great or small, the
privilege tax being still the same.
IL is said that this is class legislation.
This is very true. It is class legislation,
and that of q very Objectionable character;
/ and 10 is class legislation that appears TO
have been authorized by the Constitution,
established by the Legislature and sane
toned by the Courts.
II the positions above taken be sound, 1t
| follows that it is no infraction Of the Con-
%stituti0n for the Legislature to impose an
Gd UdLOTem tax upon the property Ofs meT-
chant and q privilege tax upon the exer-
else Of his business.
The law is not, therefore, unconstitu-
tionaL.
But it is said tbst the law imposing this
tax is in conflict with the act of January
/ Is, 1870, and this brings Us to the question
whether or not the act of 1878, and the
amendments thereto, have been repealed.
MERCHANTS on COMMISSION.
The Code, section $50, made the business
! of selling liquors at retail q privilege, and
taxable IS such. Section 8, chapter XIV,
set of March !. 1869, smendatOrytO section
8, chapter L&AIA, acts lS67-6 (which lat
ter act imposed a tax upon retail dealers
slOnel. provided that all other dealers in
liquors should pay a tax Of SIO0 as a priv
Iege tax. By subsequent legislation this
was increased to $50 to the State and the
same sum TO the county.
Section 1, act January Is, 1870, abolishes
taxes on purchases and sales of merchan-
| disc, and amends pro tdutO sections 4S2Rnd
$50 of the Code, which fix upon sales Of
merchandise as % Of the sources OF State
and county revenue, BY this section it is
uuquestiOned that all taxes on the pur-
chase and sales Of merchandise are sbol-
ished.
Section second of the same act provides
"that merchants shall pay an ad vslorem
tax upon the capital invested il their bus
mess equal to hat levied on all taxable
property. . But nothing in this act
contained shall in any wise affect the col
lection Of privilege taxes upon the svOcs-
tiOns declared by section $50 of the Code
to be privileges. except the business of
selling merchandise upon commission"
1t CsnnOt be doubted that wholesale
liquor dealers are merchants within the
meaning Of this section.
Section hvs OF same act provides that
"in addition to the ad vslorem tax pro
vided for by section two, merchants shall
also pay the following license tax: Those
reporting less than 5000 of capital shall
pay SO; those reporting a greater amount
Of capital than 5000 shall pay On each Sl0,-
900 so reported, or frsctiOn thereof, S2On
It is claimed that it was the intention
of the Legislature in passing this
not 20 1nnNHEh all FaWaa nn1n na-
chants except the sd vslOrem tax.
GREAT LOOsESEss.
1t is true that while construction is or
dinGrily q judicial, and not a legislative
function, IL is still proper in cases where
doubts arise as to the intention of the
Legislature in passing any particular act,
to examine it in the light of other acts
upon the same or kindred subjects, pissed
cOtempOrsneOusly OF subsequently,. Sedg-
wick on Stat and Com. Law, p. 252
But 10 is also true that great lOoseness
prevails in passing repeating and amend
aUOry acts, so that IL is extremely difficult /
to ascertain what statute has really been
repealed or amended and what has not,
and il Often occurs that the Legislature
itself commits errors in this respect. Sedg-
wick on Stat. and Com. Law, p. ST..
SO that the test drawn from subsequent
legislation must be applied with caution, |
as the Legislature not unfreqUently does
fully weigh and appreciate the effect
Of previous legislation.
It is undoubtedly the duty of courts to
statutes so that they may stand
together when this can reasonably be
done; and 20 is a familiar rule, that where
a statute is repealed by implication, that
implication must be q necessary one.
In other words, the two statutes must be
irreCOncilsbly inconsistent, or else the
later % does not repeal the former, eX-
ospt where it does so by express words.
as has been stated, the word "mer-
chant" in the ID section of the act Of
January, 1870, includes wholesale deal
srs in liquor. Section 5 Of same act, In
ieclaimiug who shall be subject to tie
tax therein provided for, SAYS,
'8ll merchants as defined in section 2
1f this act" It therefore, by its terms,
a license or privilege tax upon
wholesale dealers in liquors. It is admit
ed that this license tax and the one pro-
7ided for by the act Of March LIST, 1869.
snuot both stand, for this would be to
evy a double tax upOn the same priyi-
eye. Which, then, must give way? "If
.WO Inconsistent acts are passed at differ
mt times, the last is TO be Obeyed; and
( obedience cannot be observed without
ierOgsting from the first, il is the first
which must give way"
From these premises the conclusion in
NALaDAN aaALIME aDAL Inc hEN OF january. ]
$40. repeats the act of March, 1869, so far
Is this class Of privileges is concerned,
lnless the clause in section second Of the
OTmer act, which declares that the pro- :
-isiOns of said act shall in no wise affect s
be collection of privilege taxes upon the :
.vOCations declared by section $50 of =
be Code, TO be privileges, etc, pre- :
.ents its having this effect. That :
eCtiOn of the Code does not in :
linda the hTgrnEHa n# unt1fnH 1frnnw5 hw
Wholesale. To make IL include this svO- +
alton 10 Is necessary 70 assume that the /
legislature, in designating that section of ;
be Code, intended to include all subse- :
ueut legislation upon the same subject. Z
his appears to me to be q strained and :
.nnstural conclusion. It is also contrary =
D what seems to be the general scope and !
urvleW Of the act, which was apparently q
, make taxation equal and uniform, and =
make it bear az least ONE approximate
to the amount of capital invested.
While I freely COnC6de that where the
legislature has clearly expressed its in
fntion, and that intention does not con-
lot with the paramount law, that it is the
uty Of the courts to carry that in \
1 do not deem Il the duty Of the L
TO strain the language Of the law y
D as TO make 10 support q system of a
which is unequal and unjust in
g operation. The construction here Ii
wen, which / think amp y sustained by y
JASON and authority, protects the Gov
-nmsnt in the collection Of 3 just and
luitable taxation, 50 far as any taxation
terminating between different legiti-
Hvocati0ns is just and equitable, and
revents the bardsnips of q small dealer
the same tax for the exercise Of
Is svocstiOn As that required Of one do q
ten, or it may be twenty, times the 81
lsiness, and realizing g proportiOnally Al
or profit. q
The motion to dismiss will be ovsrruled.
IRVING HALSEY, Judge.