State v. Southern Cotton Oil Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is a claim by the collector of state taxes for an additional license for the year 1924, and for a license for the years 1925 and 1926. And the defense is that the collector has delayed too long in seeking to collect the additional license for the year 1924, and that defendant, being a manufacturer, is not liable for any license for the other two years.

I. In the year 1924 defendant paid a license of only $100, when in fact it should have paid a license of $300 under Act 233 of 1920, § 3, class 14, p. 396. It is contended that since the collector waited until March 22, 1926, to make this claim for an additional license for that year, he has waited too long; and defendant relies on State v. N.O. Chess, Checkers Whist Club, 116 La. 46, 40 So. 526, in support of its contention that the tax collector has not acted "promptly" as required by law.

When that case was decided the Legislature had not defined what it meant by requiring that action be taken promptly, and, accordingly, the court was free to give that expression what meaning it thought just. But immediately following that decision the Legislature made its meaning clear by providing that claims for licenses and for additional licenses shall be made within three years from the time said licenses become due, and that no inaction on the part of the collector should debar the right to proceed within that delay. Act 148 of 1906, p. 252. And Act 233 of 1920, § 33, p. 436, must be construed in connection with said act of 1906.

II. Defendant's business is that of extracting crude oil from cotton seed, and of refining into edible oil the crude oil so extracted and other crude cotton seed oil which it purchases.

The process of extracting the crude oil from cotton seed consists essentially of crushing and grinding the raw cotton seed, then heating it and pressing out the oil.

The process of refining crude cotton seed oil and rendering it edible consists essentially of treating it with chemicals so as to rid it of impurities, give it an attractive color, and make it wholesome and palatable.

Both processes are accomplished by the use of machinery, and by the application of human skill to the various operations required to produce the desired result. So that in the one case crude oil is produced from the seed, and in the other edible oil is produced from the nonedible oil. Both are in our opinionmanufacturing processes, and defendant is therefore a manufacturer.

III. In New Orleans v. Le Blanc, 34 La. Ann. 596, this court pointed out that one who sells articles of commerce for the purpose of deriving a profit from said sales must be either a dealer or a manufacturer. And the court said:

"A dealer is not one who buys to keep, or makes to sell, but one who buys to sell again. He stands between the producer and the consumer, and depends for his profit, not upon the labor which he bestows on his commodities, but upon the skill and foresight with which he watches the markets.

"[On the other hand] a manufacturer is not * * * [exclusively] one who produces a new article out of materials entirely raw. He is [also] one who gives new shapes, new qualities, new combinations to matter which has already gone through some artificial process; * * * and depends for his profit upon the labor which he bestows upon the raw [or partially manufactured] material."

See, also, City of New Orleans v. Ernst, 35 La. Ann. 746.

Hence one who converts crude cotton seed oil, wholly unfit for human consumption, into an edible article, by giving it a new quality, i.e., making it wholesome and palatable, is essentially a manufacturer; and a fortiori when his process begins with the very cotton seed itself.

And it would serve no purpose to list the various occupations which this court has held to constitute manufacturing; for upon analysis we find that each decision is grounded upon the fundamental distinction laid down in New Orleans v. Le Blanc, supra.

IV. It is true that in Union Oil Co. v. Marrero, 52 La. Ann. 357, 26 So. 766, it was held that the refining of crude cotton seed oil was not a process of manufacturing. But that case is based wholly on State v. American Sugar Refining Co., 51 La. Ann. 562, 25 So. 447, wherein it was held that the refining of raw sugar, a process practically the same as that now under consideration, was not a manufacturing process. This last case, however, was flatly overruled in State v. American Sugar Refining Co., 108 La. 603, 32 So. 965, and is therefore no longer authority for the proposition that the refining of raw sugar is not a manufacturing process. Hence the case of Union Oil Co. v. Marrero, which is based upon it, must fall with it. Sublato fundamento cadit opus.

V. In Downs v. Dunn, 162 La. 747, 111 So. 82, we held that under the existing license statute (Act 205 of 1924, p. 370) no manufacturer is bound for a license tax for the year 1925 and subsequent years. So that defendant owes no license for the years 1925 and 1926.

VI. Act 233 of 1920 was the general license law from 1920 until superseded by Act 205 of 1924.

Section 3 of said Act of 1920 expressly laid a license tax on manufacturers. But the provisions of that section were omitted from the act of 1924. And this was done apparently ex industria; for the penultimate clause of section 25 of the Act of 1924 provides tot verbis that the provisions of said section shall apply to any other business not provided for in the act, or by "separate law," except manufacturing.

Now the "separate law" above mentioned clearly meant somespecial law, and not an omitted section of some former general license law. For it is clear that any business not otherwise provided for in the act, or by some special law, must come under the provisions of said section 25, notwithstanding that it might have been otherwise provided for in some previous general license law; since the general license law was clearly intended to cover the whole subject-matter of licenses except so much thereof as might be covered by some special, i.e., "separate," law. In other words, it was clearly the intention of the act of 1924 to repeal the omitted sections of all former general license laws and replace them by section 25; since the provisions of such former laws would be clearly inconsistent with the provisions of said section.

And hence when the legislator provided that the provisions of said section 25 should not apply to manufacturers he meant, not that manufacturers should be taxed in conformity with the provisions of some omitted section of former license laws, but that they should not be taxed at all. Otherwise we would have the queer spectacle of a section patently omitted at the beginning of the act and yet reinstated by inference only towards the end of the same act, when the logical thing to do, if the legislator intended the section to continue in force, was to let it stand as in the former act and thus remove all occasion for doubt.

Nor does it change the situation that the act provides (section 28) that nothing therein shall be construed to affect or repeal any existing laws levying license taxes on business and occupations not enumerated in the act. The "existing laws" there meant are special laws, not general laws; for all general laws on the subject of licenses were merged into section 25 aforesaid. And we again repeat that the legislator could never have intended to do the inane feat of patently omitting a section of the law in order to give it force by inference only.

The contentions of the state to the contrary are therefore unsound.

VII. The trial judge rejected the claim of the state in toto; but we think that the defendant is liable for the additional license for 1924, though not liable for any license whatever for the years 1925 and 1926.

Decree. The judgment appealed from is therefore reversed, and it is now ordered that the state have judgment against the defendant for the full sum of $200, with 2 per cent. interest per month from March 1, 1924, until paid, and 10 per cent. attorney's fees on the whole, and that in other respects the demand of the state be rejected. Defendant is to pay all costs of both courts.

On Rehearing.