Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1871-05-23


anv particular trade business or avoca.
ton a privilege" and to define and
prescribe the terms upon which 1t may
be exercised or pursued. French VS..
Baker, 4 Sneed, 1913; Mabry VS.. Tarver,
| Hump, "a; Mayer VS.. Erwin, 8 Hump,
300. The business of selling liquors at
wholesale may therefore be declared a
privilege, and taxed as such in the
discretion of the Legislature. Such a
tax is quite independent of and distinct
from the ad valorem tax levied upon
liquors as property. Mayer VS.. Erwin,
Hump, 29O.
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 tax upon
sales of merchandise, for it is immaterial
whether the sales be great or small, the
privilege tax being still the same.
1t is said that this is class legislation.
This is very true. 1t is class legisla-
ton, and that of a very Objectionable
character; and it is class legislation that
appears to have been authorized by the
Constitution, established by the Legisla-
ture and sanctioned by the Courts.
If the positions above. taken be sound
it follows that it is no infraction of the
Constitution for the Legislature to i'm
pose an adj uGl0rem tax upon the pro-
perty of merchant and a privilege tax
upon the exercise of his business.
The law is not, therefore, unconsti-
tutional
But it is said that 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
1868, and the amendments thereto,
have been repealed
The Code, section $50, made the bust
ness Of selling liquors at retail priyl-
lege, and taxable as such. Section 8,
chapter XIV, act of March l, 1869,
amendatory to section 5, chapter
LXXIX, acts ls67-S (which latter act
imposed tax upon retail dealers
alone), provided that all other dealers
in liquors should pay tax of 800 as
privilege tax. By subsequent legisla-
lion this was increased to $3.50 to the
State and the same sum TO the county.
Section first, act January Is, 1870,
abolishes taxes on purchases and safes
of merchandise, and amends pro taRto
sections 1872 and 400 of the Code, which
fix upon sales of merchandise as one
of the sources of State and county reve-
nue.. BY this section it is unquestioned
that all taxes on the purchase and sales
of merchandise are abolished.
Section second of the same act pro-
vides that merchants shall pay an ad
valorem tax upon the capital invested
in their business equal to that levied on
all taxable property. But
nothing in this act contained shall in
any wise affect the collection Of privi-
lege taxes upon the avocations declared
by section $50 of the Code to be privi-
leges, except the business of selling
merchandise upon commission" 1t can
not be doubted that wholesale liquor
dealers are merchants within the mean
ing Of this section.
Section five Of same act provides that
"in addition to the ad valorem, tax pro-
vided for by section two, merchants shall
also pay the following license tax: Those
reporting less than $4,000 Of capital shall
pay $40; those reporting a greater
amount of capital than $4,000 shall pay
on each $4,000 so reported, or fraction
thereof, $40"
1t is claimed that it was the intention
of the Legislature in passing this act to
abolish all taxes upon merchants except
the dd udlorem tax provided for in sec
ton 2, and the license tax provided for
by section 8; that section $50 of the Code
did not authorize the taxing of the bust
ness of dealing by wholesale in liquors
as a privilege, and that by excepting the
vacations named in section $50 of the
Code from the operations Of the act, the
Legislature manifestly intended TO In
clude all other privilege taxes on mer-
chants within its scope, and that they
are all, therefore, repealed.
On the other hand, it is commended that
the acts Of 1868 and 1869 are merely
amendatory to section $50 Of the Code,
and must have been deemed part Of
said section by the Legislature, and en-
braced within the exception made in
section 2 Of the last named act.
In support Of this position 1t is further
said that the same Legislature at the
same term, subsequently to the passage
of the acts Of January Is, passed other
acts modifying section Of the act OF
March l, 1869, which, it is claimed, they
would not have done had that section
been previously entirely repealed.
1t is true that while construction is
ordinarily a Judicial, and not logisla-
tive function, it is still proper in cases
where doubts arise as to the intention OF
the Legislature in passing any particular
act, TO examine il in the light of other
acts upon the same or kindred subjects
passed cotemporaneously or subse-
quently. Sedgwick on Stat. and Com.
I Law, p. 252
But it is also true that great loosenegs
prevailsin passing, repeating and amend
atory acts, so that tits 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
Sedgwick on Stat and Com. Law, p 57l.
SO that the test drawn from subse
ouent legislation must be applied with
1 caution, as the Legislature not unfre
quently does not full v weigh and appre
eiate the effect of previous legislation
Il is undoubtedly the duty Of courts tC
construe statutes so that they may stand
together when this can reasonably b
done; and il is familiar rule. that where
a statute is repealed by implication, thai
implication must be necessary one
In other words, the two statutes must BE-
irreconcilably inconsistent or else th'
later one does not repeal the former, ex
cept where it does so by express words
As has been stated, the word mer
chant in the ID section Of the act o.
January. 1870, includes wholesale deal
ers in liquor. Section Of same act, in
declaiming who shall be subject TO the
license tax therein provided for, says