State v. Pons

Cook, J.,

delivered the opinion of the court.

Joe Pons, appellee, was indicted for a failure to pay a privilege tax on an alleged “oil depot.” By agreement, a jury was waived and the case was tried by the circuit judge iipon the following agreed statement of facts:

“The defendant, Joe Pons, uses and operates a pier or wharf in the city of Biloxi, belonging to his mother, which wharf extends out into the Mississippi Sound, to where the water is deep enough for boats to come alongside said pier, at which said wharf the defendant, Joe Pons, operates a fish house, where he deals in fish and other sea foods; that on another part of said pier the defendant has and uses another room or building, erected by the Standard Oil Company, and not connected with the fish house aforesaid; that at Biloxi a large quantity of gasoline is used by oyster and shrimp* boats, and other boats propelled by gasoline motors, and that in last-named room on the wharf of said defendant there is kept and stored oils and gasoline belonging to the Standard Oil Company, which said oils and gasoline are kept primarily for the purpose of supplying boats with gasoline, and said oils aré sold by defendant to such boats, and also to passing automobiles and others that may desire to purchase from defendant; that said sales are made by defendant as agent for the Standard Oil Company, for which sales the defendant receives a commission of one per cent of all sales of oils and gasoline, accounting to the regular agent at Biloxi of the Standard Oil Company for all such sales; that on said room or building where said gasoline is stored there is a sign about fifteen feet long, extending along the front of said room or building, on which is printed in large letters ‘ Standard Oil Company, Gasoline;’ that the Standard Oil Company maintains near the Louisville & Nashville Bailroad Company’s depot in said city a regular oil depot, with a regular agent of said company in charge, and pays a regular license for such oil depot, in which depot large quantities of oil and gasoline are stored and kept, being drawn through pipes from the cars into tanks in said depot; that said depot near the Louisville & Nashville Bailroad Company’s depot is about one-half mile from said wharf on the beach in charge of the said defendant, Joe Pons, and is inaccessible to boats using gasoline for motor power, and that said Standard Oil Company, through its regular agent at Biloxi, delivers oils and gasoline to its agent, Joe Pons, at the wharf aforesaid, where he sells and delivers it to boats, automobiles, and others applying to him for the same; that no license is paid by the Standard Oil Company, or Joe Pons, except the license hereinabove mentioned, and that Joe Pons is acting-as agent of the Standard Oil Company when selling oil and gasoline at said wharf. ’ ’

The court entered a judgment finding the defendant not guilty, and the state appealed.

Section 3843 of the Code of 1906, under which the indictment was drawn, reads:

“Oil Depot. — On each oil depot..................$50

‘ ‘ Each building or tank where oil is stored for delivery shall be deemed a depot, but this provision shall not apply to merchants who retail oil to their customers in the regular course of business.”

In our opinion, the finding of the judge is correct. Under the facts, appellee’s business is not of the kind upon which the tax of fifty dollars was levied. He did not run an oil depot.

Affirmed.