State v. Jordy Bros. Slate Co. ( 1922 )

Charles F.Claiborne,Judge.

This is a suit for a license as ■contractor in the slating business for the years 1919,1920,1921,«ttfefendants den$ that they are oontraotors}they allege that they are engaged in the retail »v. // business of selling Blates,and also as suboontraotors for laying slates on the roofs of buildings)that they have paid their license as retail dealers for the years 1919,1920,1921)they admit that they have never paid 1¿senses as oontraotors or suboontraotors/that the lioense on the amounts earned by them as sub-oontraotors have been paid by the general oontraotors on the amounts of the suboontraots made by them^among Ahom are Clover,Petty,and Heinrichs,and that to oolilect again from the defendants would amount to double taxation^}and that they are mot liable to any lioense except that of retail dealers.

The learned Judge of the trial court decided in favor of the State and against the defendants,and they ahe have appealed.

In the briefs filed by the defendants in this Court^ they admit that (/the question*/ is narrowed down to the point as to whether they owe a lioense as sub-contractors).

They reply in the negative for two reasonssFlrst that they are net in fact ("oontraotors ) in any sense of the(word), H •and that the revenue law makes no provision for(sub-oontraotors) H // that it is a case of casus omissus whioh oannot be supplied by the Courtbs And second,that sinoe general contractors pay their licenses on the total grÓBB annual reoeipts of theta business they include the amounts paid by them to their suboontraotors and to license the latter would amount to double taxation,- and that the State cannot oolilect from oontraotors and suboontraotors for one and the same thing.

Section 14 of act 17.1 of 1898 page 415 reads as follows! 'That the annual license for the kinds of business herein after named shall be graduated in thirteen classes,as follows,vi

" That f<r every company carry on/the business of master-builders, contraotors^the license for said occupation shall be £ seventh class ,Vrhen said gross annual receipts -are JteOOO are or more ^.nd less than $6000 the license shall be $60 **

Act 62 of 1906 page, 95 is in practically the same language.-

Section 25 of aot Ho.253 of , 1920 page, 433 mentions only the(contractor) \

The error of^tha defendants ks to style themselves sub-oontraotors-ithey are such as regards the owner and others; but as between themselves and the builder they are"contractors"/ for they made a contract directly with the builder,and as suoh are"contractors";and it is upon their reoeipts,as such"contrae* tors " .that the State grades their license,If they make contracts*" with builders it does not appear that they do not make ttay with owners alsoVif defendants’construction was correct^the result *” would be that no retailer of merchandise would be liable for any license,for the price reoalvaj. by them has already been included in the" receipts" for, merchandise sold by t! A. them *o "TfcalTaru ,. is not the merchandise sold that is taxed in either case;it is the reoeipts for the merchandise sold,which are different in the hands oí eaoh.These reoeipts suppose on the part of eaoh ave oertain amount of profits,and those ara the things taxed.lt is evident that the reoeipts and profits of the one are different from the reoeipts and^ppofys of the othej and belong to different persons .Hor is tiulr double. taxatlon.In one oase the lioense is levied upon the contracts made by the owner with the master builder,and in the other oase it is levied on the contracts made between the master builder &SP- others- Av8 see no error in the judgment.lt is therefore ordered that the judgment herein he affirmed-

Decemher 11th 1922