As I understand the prevailing opinion in this case, it is founded upon the belief that, *Page 235 in the jurisprudence of this court, except perhaps in one case, the establishments which have been declared to be manufacturing establishments were those which turned out articles of a lasting quality, and the establishments which have been declared not manufacturing establishments were those which turned out only articles intended for immediate consumption. I do not think the question, whether one is a manufacturer or not a manufacturer, in the meaning of the law exempting a manufacturer from the payment of a license tax, has ever been tested, or should be tested, by the durable or perishable quality of the article which he makes.
In City of New Orleans v. New Orleans Coffee Company, 46 La. Ann. 86, 14 So. 502, 503, the reason why the coffee roaster was held to be not a manufacturer was that he did not change the form of the coffee by grinding it. The court said:
"We have considered the evidence and the pleadings with care, and we are satisfied that the defendant corporation does not claim that it is a manufacturer by reason of grinding coffee, and thereby changing its form; and, while some incidental statements to be found in the testimony might indicate that exceptionally the defendant corporation may grind the coffee which it manipulates, its claim to be a manufacturer of coffee is based wholly on the production of brands of unground roasted coffee."
In Downs, Tax Collector, v. Dunn, 162 La. 747, 111 So. 82, which decision is not referred to or cited in the prevailing opinion in the present case, it was held that one who bought green coffee in large quantities and parched and ground it, mixed it with chicory, *Page 236 and put it up in packages of convenient size for the retail trade, was a manufacturer. The product of the New Orleans Coffee Company's establishment was not any more intended for immediate consumption than the product of Dunn's establishment. In both cases the coffee was intended for resale by retail grocers, just as the hams are in the present case.
My opinion is that the reason why the court made a distinction between the ice cream business carried on by Mannessier, in 1880, and that which was carried on by Brown, in 1917, was not so much because Mannessier's ice cream was intended for more immediate consumption, as because of the enormous difference in the size or extent of the business done by Brown, in comparison with that which had been done by Mannessier. The only reason why ice cream had become more durable in Brown's time than it was in Mannessier's time was the improvement in the process of refrigeration, particularly with regard to shipments of perishable goods.
It is true that, in State v. Eckendorf, 46 La. Ann. 131, 14 So. 518, in 1894, it was held that the business of baking bread was not that of a manufacturer; but in State v. Lanasa, 151 La. 706, 92 So. 306, in 1922, it was held:
"A baker, in whose establishment the various processes are conducted by electrically driven machinery, is a `manufacturer,' and exempt from a license tax, under Const. 1913, art. 229, though he bakes nothing but bread."
And, in State v. E.I. Young Co., 157 La. 845, 103 So. 186, in 1925, the decision in Lanasa's *Page 237 Case was quoted with approval, and it was held:
"A company making only special brands of cakes entirely by machinery, except icing and wrapping, held a `manufacturer,' under Const. 1913, art. 229, and exempt from paying tax under Act No. 171 of 1898, § 6, and Act No. 233 of 1920, § 8."
Surely, these recent cases, Lanasa's Case and the E.I. Young Company's Case, which are not referred to in the prevailing opinion in the present case, cannot be reconciled with it, on the theory that boiled hams, sold to grocers for resale, are intended for more immediate consumption than bread and cakes, which are baked daily.
It does not appear to me that the decision in State v. Bemis Bro. Bag Co., 135 La. 397, 65 So. 554, that the making of burlap bags was manufacturing, was founded upon the idea that the bags had a permanent value far greater than the burlap bagging had. On the contrary, burlap bags are intended for immediate use, for the packing of rice, sugar, etc., and, as I understand, they are destroyed, or turned into kitchen rugs or saddle blankets after they have been used once as burlap bags. But, as burlap bags, they are intended for just as immediate consumption as paper bags are.
I concede that a restaurateur, or a cook in a restaurant, should not be classed as a manufacturer; but that is not altogether because he produces only what is intended for immediate consumption; but it is because, in ordinary parlance, as well as in legislative language, we would never consider a restaurant to be a manufacturing establishment. Neither would we consider a public *Page 238 service corporation, engaged in generating electricity and thereby operating the street railways and electric lights throughout the city, as in the case of State v. New Orleans Railway Light Co., 116 La. 144, 40 So. 597, 7 Ann. Cas. 724, to be a manufacturer. The principal reason for the ruling in that case, however, was that, for more than twenty years, the Legislature had imposed a license tax on such corporations, and the legislative construction of the constitutional exemption of manufacturers was deemed to be entitled to great weight. All that that decision is cited for, as I understand, is to show that the use of machinery, great or small, does not ipso facto make one a manufacturer. That, of course, is conceded.
What I dissent from in this case is the ruling, as I understand it, that the criterion by which one is to be classed, either as a manufacturer or not a manufacturer, is the durability or the perishability of the product which he makes. Accordingly, if the Gardner Jacob Company would not boil their hams, and thereby prepare them for consumption, the company's business would be that of a manufacturer.
I concede that it is not easy to reconcile all of the decisions classifying manufacturers, and those who are not manufacturers; but I do not believe that the difficulty can be overcome by adopting, as the criterion, the durability or perishability of the article that is produced. In fact I believe that boiled hams may be kept in a refrigerator as long as ice cream may be kept there, and I am sure that boiled hams are not any more ready for consumption than bread and cakes are. *Page 239
For these reasons I respectfully dissent from the prevailing opinion in this case.