
    James Foppiano v. R. A. Speed, Clerk.
    
      (Jackson.
    
    April Term, 1904.)
    1. PRIVILEGE TAXES. Backed assessed or reassessed by clerk of the county court; term “assess’’and the manner of assessing; defined.
    The word “assess,” as used in statutes in connection with privilege taxes, means simply the listing of the names of the persons exercising privileges taxed, with the designation of the privilege exercised, with or without an extension of the amount fixed by statute for the exercise of such particular privilege; and in this sense, the clerk of the county court may “back assess or reassess” privilege, taxes that have escaped listing and collection. {Post, pp. 170-172.)
    Acts cited and construed: 1903, ch. 258, secs. 30, 31, and 46; 1901, ch. 174, sec. 31; 1899, ch. 435, sec. 32.
    2. SAME. Same. But back assessment or reassessment is not prerequisite to collection by distress warrant or otherwise.
    But such hack assessment or reassessment of privilege taxes is not prerequisite to the collection thereof or the issuance of a distress warrant therefor, since the statute fixes the amount, and makes it the duty of all persons exercising privileges to come forward and' obtain a license from the clerk of the county court, and pay therefor the amount fixed by law. {Post, p. 172.)
    Acts cited and construed: 1903, ch. 258, sec. 28; 1903, ch. 257, sec. 14; 1901, ch. 128, sec-. 18; 1901, ch. 174, secs. 28 and 48; 1899, ch. 435, secs. 29 and 31; 1899, ch. 432, sec. 15.
    
      3. SAME. For three years back may be collected by distress warrant or otherwise by clerk oí the county court.
    It is the duty of the clerk of the county' court to enforce collection of privilege taxes by distress warrant or otherwise against persons exercising taxed privileges without paying the amount as fixed and required by statute; but not for more than three years back. (Post,'pp, 172, 173.)
    Acts cited and construed; 1903, ch. 258, sec. 28; 1903, ch. 257, see. 14; 1901, ch. Í28, sec. 18; 1901, ch. 174, secs. 28 and 48; 1899, ch. 435, secs. 29 and 31; 1899, ch. 432, sec. 15.
    4. SAME. Sale of intoxicating liquors on a steamboat east of the center of the Mississippi river within the jurisdictional limits of Tennessee subjects seller to privilege tax.
    The center of the Mississippi river is the line between the States of Tennessee and Arkansas, and for exercising the privilege of selling intoxicating liquors on a steamboat, while within the jurisdictional limits of Tennessee as thus defined, a liability is incurred for the privilege tax fixed by statute. (Post, p. 173.)
    Acts cited and construed; 1903, ch. 257, p. 615; 1901, eh. 128, p. 214; 1899, ch. 432, p. 1032.
    Cases cited and approved: Moss v. Gibbs, 10 Heis., 283; Stock-ley v. Cissna, 119 Fed., 821, 56 C. C. A., 324; Missouri v. Kentucky, 11 Wall., 395.
    5. SAME. Same. "Retail of intoxicating liquors on a steamboat engaged in interstate commerce is not itself interstate commerce, and subjects seller to privilege tax.
    The retail of intoxicating liquors on a steamboat engaged in interstate commerce, while within the jurisdictional limits of Tennessee, is not itself interstate commerce, and subjects the seller to the privilege tax fixed by statute for such sales. (Post, p. 173.)
    Acts cited and .construed; 1903, ch. 257, p. 615; 1901, ch. 128,
    p. 214; 1899, eh. 432, p. 1032.
    Case cited and approved: Harrell v. Speed, 6 Cates, 224.
    
      FROM SHELBY.
    Appeal from tbe Circuit Court of Shelby County. — J. P. Young, Judge.
    Randolph & Randolph, for plaintiff.
    Attorney-General Cates and C. D. M. Greer, for defendant.
   Mr. Justice Neil

delivered the opinion of the Court.

The facts upon which the questions to be determined .in this case rest fully appear in the agreed statement, appearing in the record, and’ need not be more particularly referred to than as stated below.

For the purpose of deciding the question involved, it need only be stated that the steamer C. H. Organ is owned by the West Memphis Packet Company, a corporation chartered under the laws of the State of Arkansas, and engaged in plying between two or more points in that State and the city of Memphis, Tennessee; that Foppiano is the lessee of the bar privileges, and as such lessee retailed liquors and beer thereon during the years 1901, 1902, and 1903, and is still so engaged. Liquors are sold from the bar at all times when customers desire to be served, including sucb times as the boat may be at its landing in Memphis, Tennessee. The boat referred to makes regular landings at its wharf in the city of M'emphis, there receiving and discharging freight and passengers. At such times Poppiano, during the years aforesaid, has been accustomed to make sales of liquors and beer to such persons as desired to make purchases thereof.

The county court clerk of Shelby county,' deeming Poppiano liable for the taxes imposed by the State of Tennessee upon persons selling beer and liquors upon steamboats, notified him through the revenue agent of the State. After a hearing the clerk held that Poppiano was liable for the tax, and from this holding an appeal was taken to the State board of equalization, which board affirmed the holding of the county court clerk. Thereupon plaintiff in error paid, under protest, the amount of the tax, with penalties and costs, and instituted this suit to recover therefor.

The statutes, under which the tax was imposed, contain the following provisions:

“Liquor Dealers. . . . Persons selling beer, or any quantities of liquor on steamboats, or any other vessel, or watercraft, or from railroad cars, shall pay a tax, each, in lieu of all other taxes, to be paid in any county they may elect, per annum, two hundred dollars.” Acts 1903, p. 615, c. 257; Acts 1901, p. 214, c. 128; Acts 1899, p. 1032, c. 432.

1. It is insisted that the county court clerk had no authority to back assess the taxes for the years 1901, 1902, 1903, upon plaintiff in error, Foppiano.

Section 30, chapter 258, page 660, Acts 1903, provides that the clerk of the county court shall collect all privilege taxes. Section 31 provides: “That any property or properties included in this act shall be back, or reassessed for the period'now provided by law, viz.: (1) When the same have been omitted from or escaped taxation. . . . (5) When the owner, or his agent, fails, refuses, or neglects to list the property to the assessor, as required by law.”

Section 46 provides: “That it shall be the duty of the assessor to make a return to the county court clerk of the name of each person, company, firm, or corporation, engaged in any business liable in any way to pay a privilege tax in each district or ward under the provisions of the law. It shall be the duty of the judge, or chairman of the county court, and of the county court clerk to examine the lists so returned, and compare the same with the list of persons paying privileges; and he shall report the result to the quarterly court at the July term following the assessment,, and the said report shall be read in the full meeting of the county court.” See, also, Acts 1901, p. 334, c. 174, sec. 31; Acts 1899, p. 1112, c. 435, sec. 32.

Ordinarily, of course, the terms “assess” and “assessment” apply only to ad valorem taxation, when used in respect of tax laws; but it is seen that under section 46 the duty is devolved upon the assessor to report to tbé clerk of tbe county court tbe names of persons exercising privileges, to tbe end that sucb persons may be listed, and tbe amount of tbe privilege tax collected from them. Under section 48 it is made tbe duty of tbe clerk of tbe county court to collect all privilege taxes.

Construing together tbe several provisions referred to, we tbink it clear that tbe word “assess,” when used in connection with privilege taxes, means simply • tbe listing of tbe names of tbe persons exercising privileges, with tbe designation of tbe privilege. It may or may not include an extension of tbe amount fixed by tbe statute for tbe exercise of sucb privilege. In this sense, we tbink tbe clerk of tbe county court may “back assess or reassess” privilege taxes that bave escaped listing and collection.

But we do not tbink that it is at all necessary that there should be sucb back assessment or reassessment of privilege taxes, since tbe statute fixes tbe amount, and makes it tbe duty of all persons exercising privileges to come forward and obtain a license from tbe clerk, and pay therefor tbe amount fixed by law. Acts 1903, p. 657, c. 258, sec. 28; Id., p. 643, c. 257, sec. 14; Acts 1901, p. 228, c. 128, sec. 18; Id., p. 331, c. 174, sec. 28; Id., p. 352, c. 174, sec. 48; Acts 1899, pp. 1109, 1112, c. 435, secs. 29, 31; Id., p. 1051, c. 432, sec. 15. Under these statutes it is not only tbe duty of tbe person exercising tbe privilege to promptly pay the tax, but it is also tbe duty of tbe clerk of tbe county court to call upon sucb person for tbe tax if be fail to pay. It is no less bis duty, if sucb person bas been exercising tbe privilege for three years theretofore without payment, to take steps, by distress warrant or otherwise, to.compel sucb payment. Tbe limitation of three years is fixed in analogy to tbe limitation fixed upon other back taxes.

2.' Tbe center of tbe Mississippi river is tbe line between Tennessee and Arkansas (Moss v. Gibbs, 10 Heisk., 283; Stockley v. Cissna, 119 Fed., 821, 56 C. C. A., 324; Missouri v. Kentucky, 11 Wall., 395, 20 L. Ed., 116), and we are of the opinion that for exercising the privilege referred to within the limit just stated plaintiff became liable for tbe tax.

3. We do not think that the retailing of liquors under tbe circumstances stated (even though conducted on a steamboat engaged in interstate commerce) was, itself, interstate commerce. Tbe question is discussed, and tbe reasons for this view are given, in an opinion delivered by tbe chief justice at tbe present term in tbe case of Leslie L. Harrell v. R. A. Speed, Clerk, 5 Cates, 224 (81 S. W., 840), to which we refer without further elaboration.

Affirm tbe judgment of tbe court below, with costs.  