State v. Jos. Mustaiche & Co.

11 Teiss. 145, 1914 La. App. LEXIS 29

• Court: Louisiana Court of Appeal
• Decided: January 12, 1914
• Docket: No. 5999
• Status: Published

Opinions

His Honor, EMILE GRODCHAUX,

rendered the opinion and decree of the Court, as follows:

. The defendant having been condemned by the trial Court to pay the licenses demanded by the State, appealed to the Supreme Court, on the ground that the constitutionality of the license was involved. The Court held that no such issue was presented and dismissed the appeal; and defendant thereupon prosecuted the present appeal to this Court within the legal delay. . ■ -,

State vs. Jos. Mustaiche & Co., 123 La., p. 216.

Licenses are claimed by the State of defendant, as a “wholesale dealer” for the years 1909-12, inclusive, and the defendant interposes the plea of estoppel “for 'the reason that the State has already accepted payment for license from defendant, as commission merchant, for all its business conducted during said years;” and defend* ant, while admitting that Act 148 of 1906, expressly does and was designed to relieve the State from the penalty or effect of an estoppel under such circumstances, specially pleads that said Statute is unconstitutional.

The question thus presented, namely, the constitutionality of said Statute, may be dismissed from further consideration by the statement that the Supreme Court has but recently upheld the Statute against an attack based upon the identical constitutional objection that the defendant presently urges here. _ , ,

State vs. J. Foto & Bro., decided Dec. 1st, 1913, 63 So, Rep., 859.

Defendant next contends that it is not a “wholesale dealer;” but upon its own testimony the contrary fact is established, for it is shown that -defendant’s business consisted', partly of selling in 'original packages' and tcj dealers for resale.

Opinon and decree, January 12th, 1914. Rehearing granted, March 9th, 1914. Syllabus. 1. The State is not estopped from claiming licenses or additional licenses by failing to demand them promptly. She may sue for them until prescription shall have run against them. . - ■ 2. Act 148 of 1906 relative to licenses is not unconstitutional.' 3. A wholesale-merchant is ene who sells by the bale, box or barrel, or by the crate, sack or original package, and he owes a license as such. The fact that he sells also by the piece, pound, or gallon, or yard, or broken package, does not take away from him the character of wholesale merchant but only superadds that of retail merchant.

City vs. U. Koen & Co., 38 A., 328.

The defendant, however, has pleaded in this Court the prescription fixed by Act 148 of 1906, as to the license demanded for the year 1909; and as this suit was not instituted until December, 1912, and as licenses became delinquent on the first day of March of each year, the plea appears to be well founded. As the license of that year is prescribed the judgment will require amendment.

. It is accordingly ordered that the judgment, appealed from be amended by rejecting the claim of plaintiff for the license of $50.00 for the year 1909, with interest and attorney’s fees upon said sum, but that in all other respects the judgment be affirmed.

Amended.