Marco v. City of Clarksdale , 94 Miss. 4 ( 1908 )

Whitfield, O. J.,

delivered the opinion of the court.

The appellant was tried and convicted for selling coca-cocla by retail in the city of Olarksdale, a city of more than three thousand inhabitants, and was fined five times the penalty of $12.50, making $62.50 in all. The case is here on an agreed state of facts.

Section 3894, Code ..1906, is in the following words: “3894. Privileges to be Paid to Tax Collector of County; Exceptions. Any pierson other than insurance, telegraph, express and sleeping car companies, building and loan associations and commercial agencies, desiring to enjoy any of the privileges taxed by law in this state, shall first pay the tax prescribed to the collector of taxes of the county and obtain of him the license herein required for the privilege. Insurance companies, fraternal orders, incorporated insurance agencies and insurance agents shall pay direct for their privileges to the insurance' commissioner. And telegraph, express, sleeping car companies, building and loan associations and commercial agencies, shall pay direct for their privileges to the auditor of public accounts, before they shall exercise any of the privileges of carrying on their business in this state. Any person or corporate body who shall exercise any of the privileges taxed by law'in this state without first paying the tax and procuring the license as required, shall, on conviction, be fined not less than an amount equal to five times the tax imposed on such privileges, or shall be imprisoned in the county jail not more than six months, or both by such fine and imprisonment.”

It was under a part of this section that the penalty was made five times the amount, $12.50, required for license, to sell coca-cola in towns of over three thousand inhabitants by retail.

Section 3190, Code 1906, is in the following words:

“ 3190. Coca-cola, Colavin, etc.—On each factory or bottling establishment for the bottling of coca-cola, celery-cola, afri-cola, hecks-cola, cola-beta and colavin, nervola, and nervo-cola, or any similar or proprietary drink, the sum of............................ $ 50 00

On each depot for the distribution or shipment of ■coca-cola, celery-cola, afri-cola, hecks-cola, cola-beta, ■and colavin, nervola, nervo-cola, or any similar or pro- » prietary drink, the sum of...................... 150 00

Provided this act shall not be construed to subject the bottling establishments to the tax both as manufacturer and distributor.

Same, on each retail dealer in coca-cola, celery-cola, afri-cola, hecks-cola, cola-beta, colavin, nervola, and nervo-cola, or any similar or proprietary drink, in cities of over three thousand inhabitants.......... 25 00

Same, in cities of not more than three thousand and •over two thousand inhabitants.................. 10 00

Same, in towns of two thousand or less inhabitants 5 00

Same, on each person or firm selling any of the ■above drinks in bottles........................ 2 50

Article 19 of the charter of the city of Olarksdale is a more rescript of said section 3190, providing, however, fifty per cent of the state tax in each instance as the amount of the privilege tax for the city, and omitting the last paragraph-of section 3190 ■altogether, which last section provided for a privilege tax of $2.50 for the state on each dealer in coca-cola "selling it in bottles. This was entirely omitted from the ordinance and there is no provision in the ordinances of the city of Clarksdale imposing any privilege tax upon one selling coca-cola iu bottles. Tbe evidence in the case makes it perfectly plain that what appellant did was to sell coca-cola not at retail, but in bottles:

Since there was no provision in the ordinances of the city of Clarksdale providing any privilege tax for one selling coca-cola in bottles, and since that was what the appellant did, and since the appellant was not- selling coca-cola by retail, it is, of course perfectly clear that the judgment must be, and it is hereby, reversed, and the prisoner discharged.

Reversed.