Comptroller of Treasury v. Mandel, Lee, Goldstein, Burch Re-election Committee

• Decision Date: 05 July 1977
• Docket Number: No. 7,RE-ELECTION,7
• Parties: COMPTROLLER OF the TREASURY v. The MANDEL, LEE, GOLDSTEIN, BURCHCOMMITTEE.
• Court: Maryland Court of Appeals

Page 575

280 Md. 575

374 A.2d 1130

COMPTROLLER OF the TREASURY v. The MANDEL, LEE, GOLDSTEIN, BURCH RE-ELECTION COMMITTEE.

No. 7.

Court of Appeals of Maryland.

July 5, 1977.

Gerald Langbaum, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Jon F. Oster, Deputy Atty. Gen., Baltimore, on the brief), for appellant.

L. Paige Marvel and Marvin J. Garbis, Baltimore (Garbis & Schwait, P. A., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., SINGLEY, SMITH, DIGGES, LEVINE, and ORTH, JJ., and RIDGELY P. MELVIN, Jr., Associate Judge of the Court of Special Appeals, specially assigned.

SMITH, Judge.

We shall here hold that organ music presented in connection with a buffet dinner and cocktail party held in 1973 to raise political campaign funds for the Mandel-Lee-Goldstein-Burch reelection effort was not "furnished (as) a performance" within the meaning of Maryland Code (1957, 1969 Repl.Vol., 1972 Cum.Supp.) Art. 81, § 402(a) and thus that no admission tax is due in connection with this event. ¹ Therefore, we shall affirm an order of the Baltimore City Court (Greenfeld, J.) which reversed the order of the tax court.

The statute in question provides in pertinent part:

"(a) Counties. Effective July 1, 1972, any county by resolution may levy a tax on the gross receipts of every person, firm or corporation obtained from sources within the county derived from the amounts charged for (1) admission to any place, whether the admission be by single ticket, season ticket or subscription, including a cover charge for seats or tables at any roof garden, cabaret or other similar place where there is furnished a performance, if payment of the amounts entitles the patron thereof to be present during any portion of the performance; . . . and (4) refreshment, service or merchandise at any roof garden, cabaret or similar place where there is furnished a performance. . . .

"The term 'roof garden or other similar place' shall include any room in any hotel, restaurant, hall or other place where music or dancing privileges or other entertainment, except mechanical music, radio or television, alone, and where no dancing is permitted, are afforded the members, guests, or patrons in connection with the serving or selling of food, refreshment or merchandise. . . . The tax levied by this subsection shall be collected by the Comptroller."

Code (1957) Art. 1, § 14 states that the word "county" is to "be construed to include the City of Baltimore, unless such construction would be unreasonable." In this instance § 402(b) has a provision similar to § 402(a) applicable to incorporated cities and towns. Baltimore City implemented this admission tax provision when it enacted Ordinance No. 113 on June 29, 1972, amending Baltimore City Code (1966) Art. 28, § 128A.

The facts are undisputed. In fact, most of them were stipulated. The affair in question was held in the auditorium and exhibition hall of the Baltimore Civic Center on May 22, 1973. The price of tickets was $100 per person. Two organists received a total of $130 for music. Gross receipts were $849,625. A tax in the amount of $82,122.50 was paid. The Comptroller denied a timely request for a refund. The Maryland Tax Court affirmed that decision. The Baltimore City Court reversed the action of the tax court, thus producing the Comptroller's appeal to the Court of Special Appeals. We granted the writ of certiorari prior to a decision by that court.

Tickets for the fund raiser were sold by various politically oriented individuals to their acquaintances. The affair was described on those tickets as a cocktail party and buffet. There was no indication on the tickets or otherwise that any music or entertainment would be presented. The committee sponsoring this event paid for no advertising or publicity in connection with it.

There came a time in the planning of the affair when the caterer suggested that an organist be procured to supply background music. An expenditure of approximately $100 was then authorized for this purpose. The music was from the organ in the Civic Center which the caterer said was located in a cavity behind the curtain on the stage and could not have been visible to most of the people in attendance. Two organists shared the playing because one had to leave early in the evening. Approximately 7,000 people attended. There were no signs, public announcements, advertising, or any other form of notice to direct the attention of those present to the fact that an organist was playing.

The long-standing policy of the Admissions and Amusement Tax Division of the office of the Comptroller is to collect an admissions tax in a case such as this if there is live music, regarding that as a performance within the meaning of the statute.

As we recently have pointed out in Supervisor v. Southgate Harbor, 279 Md. 586, 595-96, 369 A.2d 1053 (1977), and Comptroller v. Diebold, Inc., 279 Md. 401, 407, 369 A.2d 77 (1977), judicial review of decisions of the Maryland Tax Court is severely limited. Code (1957, 1975 Repl.Vol., 1976 Cum.Supp.) Art. 81, § 229(o ) provides that on appeal to a circuit court or to the Baltimore City Court the tax court order is to be affirmed "if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record." Otherwise, it may be "affirm(ed), reverse(d), remand(ed), or modif(ied) . . . ."

As we see it, this case is essentially one of statutory construction and a question as to whether the presentation of the music here constituted, as a matter of law, a performance within the meaning of the statute.

Principles relative to statutory construction were summed up for the Court by Chief Judge Murphy in State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976):

"The cardinal rule in the construction of statutes is to effectuate the real and actual intent of the Legislature. Purifoy v. Merc.-Safe Dep. & Trust 273 Md. 58, 327 A.2d 483 (1974); Scoville Serv., Inc. v. Comptroller, 269 Md. 390, 306 A.2d 534 (1973); Height v. State, 225 Md. 251, 170 A.2d 212 (1961). Equally well settled is the principle that statutes are to be construed reasonably with reference to the purpose to be accomplished, Walker v. Montgomery County, 244 Md. 98, 223 A.2d 181 (1966), and in light of the evils or mischief sought to be remedied, Mitchell v. State, 115 Md. 360, 80 A.2d 1020 (1911); in other words, every statutory enactment must be 'considered in its entirety, and in the context of the purpose underlying (its) enactment,' Giant of Md. v. State's Attorney, 267 Md. 501 at 509, 298 A.2d 427, at 432 (1973). Of course, a statute should be construed according to the ordinary and natural import of its language, since it is the language of the statute which constitutes the primary source for determining the legislative intent. Grosvenor v. Supervisor of Assess., 271 Md. 232, 315 A.2d 758 (1974); Height v. State, supra. Where there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intention of the Legislature. Purifoy v. Merc.-Safe Deposit & Trust, supra. Thus, where statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view towards making the statute express an intention which is different from its plain meaning. Gatewood v. State, 244 Md. 609, 224 A.2d 677 (1966). On the other hand, as stated in Maguire v. State, 192 Md. 615, 623, 65 A.2d 299, 302 (1949), '(a)dherence to the meaning of words does not require or permit isolation of words from their context " * * * (since) the meaning of the plainest words in a statute may be controlled by the context . . .." ' In construing statutes, therefore, results that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible consistent with the statutory language, with the real legislative intention prevailing over the intention indicated by the literal meaning. B. F. Saul Co. v. West End Park, 250 Md. 707, 246 A.2d 591 (1968); Sanza v. Md. Board of Censors, 245 Md. 319, 226 A.2d 317 (1967); Height v. State, supra." Id. at 421-22, 348 A.2d at 278-279.

See also Harden v. Mass Transit Adm., 277 Md. 399, 406-07, 354 A.2d 817 (1976), and Pressman v. Barnes, 209 Md. 544, 558-59, 121 A.2d 816 (1956). Judge Mitchell said for our predecessors in Magruder v. Hospelhorn, 173 Md. 62, 194 A. 839 (1937):

"(A)s stated in Gould v. Gould, 245 U.S. 151, 38 S.Ct. 53, 62 L.Ed. 211: 'In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government, and in favor of the citizen.' " Id. at 72, 194 A. at 844.

To like effect see Scoville Serv., Inc. v. Comptroller, 269 Md. 390, 396, 306 A.2d 534 (1973); McConihe v. Comptroller, 246 Md. 271, 275, 228 A.2d 432 (1967); Fair Lanes v. Comptroller, 239 Md. 157, 162, 210 A.2d 821 (1965); Comptroller v. Rockhill, Inc., 205 Md. 226, 234, 107 A.2d 93 (1954); and Compensation Board v. Albrecht, 183 Md. 87, 92, 36 A.2d 666 (1944).

In Villa Nova v. Comptroller, 256 Md. 381, 386, 260 A.2d 307, 309 (1970), Judge Singley said for the Court that this statute "is structured in a fashion strikingly similar to § 1700(e)(1) of the Internal Revenue Code of 1939, as amended, 26 U.S.C. § 1700(e)(1), which imposed the federal cabaret tax, since repealed . . . ." Decisions concerning this federal statute are instructive.

In Deshler Hotel Co. v. Busey, 36 F.Supp. 392 (S.D.Ohio 1941), aff'd, 130 F.2d 187 (6th Cir. 1942), the controversy concerned dance music provided during the dinner and late supper hours at a hotel. A...