Mississippi Supreme Court, 1947

Cockrell v. Rasberry, Sheriff

Mississippi Supreme Court · Decided October 6, 1947 · McG-ehee

32 So. 2d 119; 202 Miss. 312; 1947 Miss. LEXIS 279 (Southern Reporter, Second Series)

Counsel

Roberson, Luckett Roberson, of Clarksdale, for appellants. The lower court erred in refusing to find that the perishable fruits and vegetables sold by appellants in the counties of Coahoma and Quitman were sold from their Tupelo plant and that, therefore, the tax is but $10 for each county. Gully v. Gulfport Loan Brokerage Co., 168 Miss. 449 , 151 So. 721 ; Independent Linen Service Co. v. State ex rel. Rice, 169 Miss. 62 , 152 So. 647 ; State ex rel. Collins v. Grenada Cotton Compress Co., 123 Miss. 191 , 85 So. 137; Stone v. Rogers, 186 Miss. 53 , 189 So. 810 ; Wilby v. State, 93 Miss. 767 , 47 So. 465; Code of 1942, Sec. 9649; Constitution of 1890, Sec. 112; Amendments to the Constitution of the United States, Art. 14. If the lower court was right in holding that the perishable fruits and vegetables sold by appellants in the counties of Coahoma and Quitman were not sold from their Tupelo plant, it erred in refusing to hold that the statute involved in this case is unconstitutional insofar as it imposes a tax of $50 upon a transient vendor of perishable fruits and vegetables who sells the same from a built-in refrigeration plant situated in this state, assessed at less than $3000, upon which a proper tax has been or is being paid, and at the same time imposes a tax of $10 upon a transient vendor of perishable fruits and vegetables who sells the same from a built-in refrigeration plant situated in this state, assessed at not less than $3000, upon which a proper tax has been or is being paid, because said statute violates Article 14 of the Amendments to the Constitution of the United States, which provides that no state shall deny to any person within its jurisdiction the equal protection of the laws, and Section 112 of the Constitution of the State of Mississippi, which provides that taxation shall be uniform and equal throughout the state. Adams v. Kuykendall, 83 Miss. 571 , 35 So. 830; City of Vicksburg v. Mullane, 106 Miss. 199 , 63 So. 412; Johnson v. Long Furniture Co., 113 Miss. 373 , 74 So. 283; Lowry v. City of Clarksdale, 154 Miss. 155 , 122 So. 195 ; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239 , 76 L.Ed. 265; Lawrence v. State Tax Commission, 286 U.S. 276 , 76, L.Ed. 1102, 87 A.L.R. 374; Constitution of 1890, Sec. 112; Amendments to the Constitution of the United States, Art, 14; 11 Am. Jur., Constitutional Law, Secs. 104, 161; Cooley on Taxation (4 Ed.), Secs. 348, 352, 353, 496. J.H. Sumrall, of Jackson, for appellee. The appellants, Earl Cockrell and Clara Belle Cockrell, were engaged in the business of selling perishable fruits and vegetables from their place of business at Tupelo, Mississippi. They maintained a built-in cold storage plant in the City of Tupelo assessed at not less than $3000, and from this cold storage plant engaged in the sale of perishable fruits and vegetables in the counties surrounding the county of Lee, paying for said privilege the sum of $10 for each truck operated, and for each county in which sales were made from said trucks as a transient vendor. Desiring to enlarge the scope of their business, they established another place of business in the City of Clarksdale in Coahoma County, renting a building there and establishing refrigerating machinery, which was assessed at only $350. And their operation as transient vendor was conducted from said place of business in Clarksdale, in the counties of Coahoma and Quitman, convenient to the branch in Clarksdale. The contention of the Commissioner in demanding the additional tax for the counties of Coahoma and Quitman is based on the fact that the business of selling fruits and vegetables as a transient vendor in said counties was not actually conducted from a built-in refrigeration plant of an assessed value of $3000 or more. On the other hand, it is the contention of the Commissioner that sales actually took place from a place of business maintained in Coahoma County and constituted the place from which such fruits and vegetables were sold, and did not fulfill the requirements of the statute by which sales could be made from such place of business for a tax of $10 upon each vehicle for each county. See Gully v. Joseph et al., 183 Miss. 662 , 184 So. 818 ; Temple v. Sumner, 51 Miss. 13 ; Craig v. Brown Williamson Tobacco Corporation, 190 Miss. 360 , 200 So. 446 ; Craig v. Walker et al., 191 Miss. 424 , 2 So.2d 806 ; Code of 1871, Sec. 1735; Laws of 1935, Ex. Sess., Ch. 20, Sec. 225, subsec. (j); Laws of 1938, Ch. 117, Sec. 225, subsec. (j); Laws of 1940, Ch. 120, Sec. 221, subsec. (v); Laws of 1944, Ch. 1938, Secs. 50, 54; Code of 1942, Sec. 9649, subsec. (v), as amended by laws of 1944, Ch. 138, Sec. 45; Webster's New International Dictionary, word "from." The invalidity of one provision of the statute does not strike down the whole statute, if a complete scheme is left after withdrawal of the invalid provision. Campbell v. Mississippi Union Bank, 6 How. (7 Miss.) 625; Adams v. Standard Oil Co., 97 Miss. 879 , 53 So. 692; Board of Sup'rs of Holmes County v. Black Creek Drainage Dist., 99 Miss. 739 , So. 963; American Express Co. v. Beer, 107 Miss. 528 , 65 So. 575; Johnson v. Long Furniture Co., 113 Miss. 373 , 74 So. 283; Enochs et al. v. State ex rel. Robinson, 133 Miss. 107 , 97 So. 534; State ex rel. Knox v. Gulf, M. N.R. Co., 138 Miss. 70 , 104 So. 689; Holloway v. Jordan, 170 Miss. 99 , 154 So. 340 ; Lacey et al. v. State ex rel. Morgan, 187 Miss. 292 , 192 So. 576 ; Code of 1871, Sec. 1735; Laws of 1944, Ch. 138, Sec. 68. A person not adversely affected by the provisions of a law cannot attack the constitutionality of such law. City of Jackson v. Mississippi Fire Ins. Co., 132 Miss. 415 , 95 So. 845; Miller v. Columbus G.R. Co., 154 Miss. 317 , 122 So. 366 ; Lawrence v. Mississippi State Tax Commission, 162 Miss. 338 , 137 So. 503 .

Opinion of the Court

*316 McG-ehee, J.,

delivered the opinion of the court.

This ease involves the construction of Section 45, Subsection (v), Chapter 138, Laws of 1944, which reads as follows:

“Upon each person doing business as a transient vendor, or dealer, as defined in this section, and upon which a privilege tax is not specifically imposed by another section of this act, a tax for each county according to the following schedules: . . . (vj Upon each transient

vendor, or dealer of fruits, vegetables, or other produce, in each county.$50.00.

“Provided, however, that when perishable fruits and vegetables are sold from a plant, warehouse, or built-in refrigeration plant, situated in this state, assessed at not less than $3,000.00, upon which a proper tax has been or is being paid, the tax imposed upon a transient vendor, dealer or salesman of such perishable fruits and vegetables shall then be $10.00 for each county. ’ ’

The appellants Earl and Clara Belle Cockrell were during the years of 1945 and 1946 engaged in business as the Cockrell Banana Company at Tupelo, Mississippi, selling fresh fruits and vegetables from a built-in refrigeration plant there, which was assessed at not less than $3,000, and upon which a proper tax was paid. They had in their employ the appellant Lester Yarber, who worked the territory including Coahoma and Quitman Counties. He loaded his truck, from which he delivered the fruits and vegetables in that territory, at a built-in refrigeration plant at Clarksdale, where the Cockrell Banana Company *317 liad rented a building and installed a local plant, assessed at only about $300.

It is agreed in a statement of tbe facts that the perishable fruits and vegetables so handled by the said Lester Yarber “come to the Clarksdale plant from the Tupelo plant, which received them from the source of supply; that the Cockrell Banana Company is run from the Tupelo plant and all receipts from sales made in the counties of Coahoma and Quitman from its trucks are paid into the Tupelo office, and all disbursements made on account thereof are disbursed from the Tupelo office. In other words, the business out of the Clarksdale plant is directed and managed from the Tupelo office of the Cockrell Banana Company,” even though it is also agreed that the said Lester Yarber is the manager of the Clarksdale plant and “is the man who actually makes the sales in the counties of Coahoma and Quitman. ’ ’

Therefore, as we understand the agreed statement of facts, the fruits and vegetables sold by Lester Yarber in his part of the territory come from the plant at Tupelo, and are sold by him as the representative, agent and employee of the Cockrell Banana Company at Tupelo, even though they are first sent to the Clarksdale plant, as a temporary depository, for preservation pending their distribution to customers in Coahoma and Quitman Counties.

It appears that during the years in question the Cock-rell Banana Company paid the tax at $10 per county in all the territory where the fruits and vegetables were distributed directly from the built-in refrigeration plant at Tupelo, and during the year 1945 it paid a like amount for each of the counties of Coahoma and Quitman, and again tendered the same for the year 1946, but upon learning that those distributed in said counties came directly,from the plant in Clarksdale, after first being in storage at the Tupelo plant, the State Tax Commission demanded the additional sum of $40 for the year 1945, *318 and the sum of $50 for the year 1946, for each of said counties, and upon the refusal of the appellants to pay the same a warrant was placed in the hands of the ap-pellee, W. D. Easberry, as sheriff and tax collector of Coahoma County, for the collection of said additional taxes and a 50% penalty thereon for each of said years. This suit was then brought by the appellants to enjoin the execution of such warrant. The County Court refused to dissolve a writ of injunction previously issued by said court, hut made the same perpetual on final hearing. Upon an appeal to the Chancery Court the injunction was dissolved and the hill of complaint was dismissed. The appeal here,is from that decree.

Wé are of the opinion that the statute in question was designed to encourage the establishment in this State by dealers in fresh fruits and vegetables of built-in refrigeration plants, and that since the Cockrell Banana Company had the right to sell and distribute such produce from its built-in refrigeration plant at Tupelo in every County in the State by paying the sum of $10 for such privilege, it would not be liable for the payment of a $50 privilege license per county where it sends such produce from its main plant to a branch plant for its better preservation, temporarily, pending their sale and distribution from the branch plant, even though the latter is assessed at less than $3,000, since the business is nevertheless being conducted from the main plant through a local representative and employee of the company in the territory near the branch plant.

We, therefore, think that the judgment of the Chancery Court in reversing the decision of the County Court was error, that the judgment appealed from should, therefore, be reversed and a judgment rendered here reinstating the judgment of the County Court which perpetuated the injunction against the sale of the property of the appellants for the collection of the additional *319 tax, and that the appellants should be adjudged liable for only the sum of $10, as tendered, for each of the counties involved.

Reversed and judgment here for the appellants.

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