
    No. 10,530.
    The State of Louisiana vs. Dupré & Hearsey.
    Considering that, under the statement of facts in this case, the making of newspapers is a business; that the process of making it employs machinery and extensive manual labor, and large quantities of physical raw material, which are placed in new combinations, and that the newspaper, when made, is a new and distinct article of commerce, sold by the makers thereof directly to dealers and consumers; considering that such business falls within the reason and motive of the Constitution, which was to encourage enterprises furnishing employment to home labor in the making of things which the people use and require, and which, if not made at home, would be brought from abroad; considering that the Constitution, in Art. 207, uses the term “manufacture” in a broader sense than that attached to it in common parlance, embracing under that term such businesses as boat building, stationers, makers of chocolate, etc.; and considering that the Legislature obviously considered this business, as well as that of book publishers, to be exempt, by expressly enumerating among businesses taxed, “ editors ” and “ agencies for publications,” and making no mention of home publishers of either newspapers or books:
    Held: That newspaper publishers are exempt from license taxation under Art. 206 of the Constitution.
    APPEAL from the Fourth City Court for the Parish of Orleans. Marr, J.
    
    
      Charles Carroll and N. B. Boberts for Plaintiff and Appellee:
    1. Publishers of newspapers, though not specially referred to by name in the license law, Act 101 of 1886, are, nevertheless, taxable under See. 12 of that act, which section fixes a rate upon “ all business not herein provided for.”
    2. A newspaper publisher is not a manufacturer. 3 McArthur 412; 1 Utah 47; Norris vs. Commonwealth, 27 Penn. 496.
    3. Words used in á constitution must be taken in their ordinary sense and meaning. Cooley Const. Lim. 58; 5 Md. 337; 32 Miss. 650; 5 Ind. 570 ; 34 Barb. 137; 9 Pick. 310; 4Vt. 540; Story on Const., Sec. 453.
    4. The fact that the constitutional amendment of 1888, extending the term of exemption, adds several industries to the favored list, shows that the list, as fixed in the Constitution, was intended to enumerate and not tq illustrate the enterprises which are exempt.
    5. Exemptions are to be construed strictly. Cooley Const. Lim. 61; 381-397; 528-529.
    
      Jos. H. and J. Zach. Spearing for Defendants and Appellants,
    cited: 34 An. 596; 35 An. V47; 35 An. 825; 35 An. 1154.
   The opinion of the court was delivered by

Fenner, J.

The State, through her tax collector, claims a license from defendants for conducting the business of “editing, printing, publishing and sending a newspaper called the Daily States.”

This business, though from its nature the most public and universally known of all, is not included in the enumeration of businesses taxed contained in the State license law. The tax collector predicates his claim exclusively upon the concluding phrase of the act, which levies a license on “ all other business not herein provided for.” The omission is certainly significant, as indicating either that the Legislature did not consider this business as taxable, or that it did not intend to tax it. ,

We have held that the legislative power to levy license taxes under Art. 206 of the Constitution, is discretionary and not mandatory, and that the State may abstain from taxing any occupation or calling, if it so desire. City vs. Mulé, 38 An. 826.

The inference that, if the Legislature had intended to tax this particular calling, it would have named it, particularly as it did specifically name the business of “editor,” is very strong; but as defendants have pleaded exemption under Art. 206 of the Constitution, which exempts from license taxation, “manufacturers other than those of distilled liquors, tobacco and cigars and cotton seed oil,” we prefer to rest our decision on that point.

This raises the novel questions whether or not a newspaper is an article of manufacture, and whether those who pursue the business of making or publishing newspapers are manufacturers within the meaning of the Constitution.

The legal meaning of this term, manufacturer, has been more than once considered by us, in this same connection. In one case, we said:

“A manufacturer is defined to be: One who is engaged in the business of working raw materials into wares suitable for use, who gives new shapes, new qualities, new combinations to matter which has already gone through some artificial process. A manufacturer prepares the original substance 4for use in different forms. He makes to sell, and stands between the original producer and the dealer, or first consumers, depending for his profit on the labor which he bestows on the raw material.” City vs. LeBlanc, 35 An. 747; City vs. Ernst, 34 An. 597.

Keeping this definition in view, the statement of facts embodied in this record shows that defendants use in their business valuable machinery and implements; that, in addition to the clerical and editorial departments, they employ a large number of mechanical laborers, such as type-setters, engineers, pressmen and their assistants ; that they purchase and use great quantities of raw materials, such as paper, ink, glue, etc.; that, by means of this machinery and mechanical labor, they convert this raw material into a new and distinct article, fit for use and in commercial demand, called a newspaper, which they sell directly to dealers and consumers.

Certainly, .from a mechanical point of view, this presents all the essentials of manufacture under every definition of the word.

It also comes clearly within the reason and motive of the constitutional exemption, which was to encourage enterprises that furnished employment to home labor in the making of things which the people use and require, and which, if not made here, would be bought abroad.

But because the value of the newspaper is not derived from the raw material, or from the mechanical labor expended upon it, but rather as a mere medium for conveying the ideas and information impressed upon it by the purely intellectual labor of its editors, reporters, correspondents and advertisers, the judge a quo concluded that the newspaper is a product of mind labor rather than of hand labor, and, therefore, is not an article of manufacture.

The suggestion is plausible, but, we think, not sound.

Such a view would deny exemption to a book publisher or manufacturer of books; yet it seems very clear that he would be considered a manufacturer within the intendment of the Constitution. For when we turn to Art. 207 of the Constitution we find expressly exempted from property taxation, capital, étc., engaged in the “manufacture of stationery.” What is “stationery?” Worcester defines it thus: “The goods sold by a stationer, such as books, paper, pens, sealing wax, ink, etc.” He says that “ stationer ” originally was synonymous with book seller, and meant “ one who kept a stall or station for, selling books.” Rut in modern use the term “stationery” probably covers only blank books, account books, etc. Yet the Constitution clearly considers makers of such books as manufacturers; and it is certainly difficult to conceive of any reason or principle that should deny the same quality to the maker of printed books.

Are we to say that a maker of blank books and account books is a manufacturer, but a maker of printed books is not, although the latter employs in his operations much more elaborate machinery and more varied and extensive manual labor than the former? We think not.

Then the argument stands thus: If the maker of blank books and account books is a manufacturer under the express terms of the Constitution, the maker of printed books, employing similar processes, with more machinery and labor, is also a manufacturer; and if the publisher of books is a manufacturer, all the reasons' on which the denial of the same quality to the publisher of a newspaper rests absolutely fail.

That the Legislature took this view seems very clear from the fact that while it mentions “agencies for publications” among the businesses taxed it makes no mention of home publishers; just as it taxes editors, but does not allude to newspaper publishers.

Other illustrations might be given of the fallacy of the view on which the judgment appealed from rests.

Who would deny that an establishment to make, with the aid of machinery and skilled workmen, optical instruments, such as telescopes and microscopes, would be exempt as a manufacture? Yet manifestly the value of such instruments is not derived from the brass, glass and other component materials, nor from the mechanical labor expended thereon, but from the scientific skill and knowledge which, by the power of adaptation and arrangement, gave to them the faculty of conveying to the eye visions of remotest stars or of minutest atoms.

Or, to take a case more homely and more strictly analogous, what would be said of the manufacturer of artistic wall paper, who impresses upon raw material, prepared for the purpose, designs of grace and beauty, invented and traced by his corps of skilled artists?

All manufacturers combine, in greater or less degree, the products of intellectual and of mechanical labor, and in very many the intellectual element confers upon the article produced its peculiar and greatest value. Such is conspicuously the case ■ with a newspaper; but since the making of newspapers is a business; since the newspaper, when made is a new and distinct article of commerce; .since the process of making it requires machinery and manual labor- and physical raw material as -essential and important factors, aggregating, as this record, shows, much the larger part of its cost, we can see no sound reason why such a business does not fall within the letter and spirit of the constitutional exemption as that of a manufacturer.

While we admit that newspaper publishing does not fall within the common usage of the term “manufacture,” the Constitution, Art. 207, attaches a broader meaning to the word by embracing within it the occupations of stationers, boat builders, chocolate makers, etc., which are not ordinarily considered as manufactures, any more than newspaper and book publishers.

We are satisfied that the Legislature took the same view of the subject, and this reinforces our own opinion.

We have nothing to say about- the tax levied on the business of editor, because not here involved. This record does not advise us whether the defendants are, personally, editors at all, and the claim is not based on such occupation, except as an element of the general business conducted by them, which is exempt.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there be now judgment in favor of defendants, rejecting the plaintiff’s demand and the latter’s cost in both courts.

Concurring Opinion.

Poché, J.

I can not bring my mind to assent to the proposition that the business of printing and publishing a newspaper is a manufacture in the sense of the Constitution, or in any other sense of the word.

This court has held that the business of making and selling ice cream was not a manufacture. In that case the proof was that the defendant used in his business costly and complicated steam machinery, and employed numerous hands and skilled employés, and that the result was the reduction of several raw materials into a commodity fit for use, but the claim to exemption from license was declined by the court. City of New Orleans vs. Mannessier, 82 An. 1076.

The case is stronger against the newspaper business.

But I find no provision in the revenue act to warrant the enforcement of a license tax against the business of printing and publishing a newspaper.

I am confident that it was not within the contemplation of the framers of the Constitution, and that the Legislature industriously omitted to include that business in the enumeration of the large class of callings which are subjected to a license tax. For that reason, which I deem it unnecessary to elaborate, I concur in the decree rendered in this case.

Dissenting Opinion.

Bermudez, C. J.

It is elementary that exemption laws must be strictly construed and that whoever claims an immunity under them, must show himself quite clearly entitled to it. Hence it has been uniformly held that in such instances doubt is fatal.

It is apparent that the case of defendants is far from being a clear one in their favor. It is surely a doubtful one. The lower judge found that they were not entitled to the exemption claimed, and two of the jutices of this court concur with him in opinion.

Indeed, it is impossible to conceive how an establishment for the editing, printing and publishing of a newspaper can be considered under the provisions of Art. 206 of the Constitution a manufacturing enterprise, or a mechanical pursuit.

A manufacture is an establishment in which, by machinery or hand work, raw materials are transformed into wares and undergo new shapes suitable for physical use and commercial purposes.

The definitions relied on to show what a manufacturer or a manufacture is, are taken from 34 An. 596, and 35 An. 747. They announce that the raw material must be worked into wares suitable for use. The word wares means: goods, commodity, merchandise.

The question arises: What are the wares suitable for sale into which defendants work the raw materials employed in their business ?

Those materials i,ome to them already manufactured ready for use. They are not afterward worked into wares and made to undergo any new shape. The paper remains just what it was before, unless perhaps in its size. The ink and mucilage applied to it by diverse processes do not alter its substance or form. The impressions made with the ink on the paper do not change the nature of the raw material and put it into wares and shapes for physical use.

After the paper has been printed upon, it is not used as goods, commodities, merchandise, or for physical want, necessity or convenience.

It is used exclusively as an object for an intellectual purpose.

It may be that an establishment wherein wall paper is fabricated is a manufacture; but it is because the paper is transformed into a ware, an article of commerce, is designed and used for a physical purpose, and in no way for an intellectual object.

It passes strange that since the Constitution has been in force, that is for more than ten years, it never entered the mind of any owner of a newspaper establishment that he was entitled to the exemption claimed in this case. This clearly shows that it never was supposed that the article involved could mean anything of the kind.

The other means of defence resorted to should not avail.

It is clear that persons conducting the business which defendants carry on, though not specially designated by name in the Act of 1886, No. 101, are taxable, under Sec. 12, which fixes a rate upon all business not therein provided for.

The judgment appealed from should be affirmed.  