Holbrook Grocery Co. v. Amidon.

Decision Date03 February 1948
Docket NumberNo. 1749.,1749.
CourtVermont Supreme Court
PartiesHOLBROOK GROCERY CO. v. AMIDON.

OPINION TEXT STARTS HERE

Appeal from Washington County Court; Black, Presiding Judge.

Petition by Holbrook Grocery Company for an appeal to County Court from refusal of George H. Amidon, Commissioner of Taxes, to grant a license as a wholesale dealer in cigarettes and to sell cigarette tax stamps to petitioner. A pro forma ruling sustaining demurrer to the petition was entered and petitioner appeals.

Ruling affirmed and appeal dismissed.

Osmer C. Fitts and Robert T. Gannett, II, both of Brattleboro, Vt., for plaintiff.

Clifton G. Parker, Atty. Gen., and Frederick G. Mehlman, Deputy Atty. Gen., for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

MOULTON, Chief Justice.

This cause is here on appellant's exceptions to the pro forma ruling of the Washington County Court sustaining a demurrer to a petition for an appeal to that court from the refusal of the Commissioner of Taxes to grant a license as a wholesale dealer in cigarettes, and to sell cigarette tax stamps to the appellant.

The petitioner alleges that the appellant is a corporation, organized and existing under and by virtue of the laws of the State of New Hampshire, with a principal place of business in the city of Keene, in that State. Its principal business is the sale and distribution at wholesale of groceries, food products, tobacco products, and other like merchandise. It maintains warehouses and distribution points in Keene and Woodsville, New Hampshire, from whence it distributes merchandise by its own trucks, public carriers or contract carriers to retailers in New Hampshire and Vermont. It maintains no warehouse or distribution point in Vermont, and all shipments made on account of orders received by it from retailers in Vermont, and all sales by it to such retailers, are made by delivery directly from points outside the State. In order for it to sell and distribute, by means of interstate commerce, cigarettes to licensed retail dealers within the State of Vermont, it is necessary, because of competition with wholesalers licensed under the provisions of No. 35, Acts of 1939, as amended, for the appellant to acquire and affix to cigarettes so sold and distributed the tax stamps required by the Act just mentioned. The appellant applied to the Commissioner of Taxes for a license as a wholesale dealer, pursuant to the Act, together with the required fee, but the Commissioner refused to issue the license because the appellant had not received a certificate of authority from the Commissioner of Foreign Corporations. The appellant also tendered to the defendant the sum of $50 and demanded cigarette stamps to that amount, but these were refused, and the tendered funds returned.

The relief sought by the appeal from the above rulings is that it may be adjudged (1) that the business of the appellant in the distribution and sale of cigarettes is interstate commerce; (2) that the refusal of the Commissioner of Taxes to license the appellant as a wholesale dealer, or to sell it cigarette tax stamps is an unconstitutional interference with interstate commerce; (3) that the appellant is entitled to be licensed as a wholesale dealer; and (4) that it is entitled to purchase cigarette tax stamps.

The demurrer is based upon several grounds, but the only one of these that it is necessary to consider is that, upon the facts alleged in the petition for an appeal, the County Court is without jurisdiction to grant the prayer for relief, under the provisions of the statute governing the procedure for appeals from the decisions of the Commissioner of Taxes with regard to questions concerning the taxation of cigarettes.

The appeal is predicated upon the provisions of § 178 No. 35 Acts of 1939, which so far as material to the issues here involved, is as follows: ‘Any person aggrieved because of any action or decision of the commissioner under the provisions of this act may appeal therefrom to the county court of the county in which such person resides * * *. Said court may grant such relief as may be equitable and may order the state treasurer to pay the amount of such relief, with interest at the rate of six per cent per annum, to the aggrieved taxpayer.’ By § 1 of the Act, the word ‘person’ includes a corporation.

Unless expressly forbidden, a foreign corporation is entitled under principles of comity to access to the courts of this State, Siwooganock Guaranty Sav. Bank v. Cushman, 109 Vt. 221, 247, 195 A. 260; and the denial of this right may, under certain circumstances, result in an unconstitutional restraint upon interstate commerce. Aetna Chemical Co. v. Spaulding & Kimball Co., 98 Vt. 51, 66, 126 A. 582; Kinnear & Gager Mfg. Co. v. Miner, 89 Vt. 572, 576, 96 A. 333; Livingston Mfg. Co. v. Rizzi Bros., 86 Vt. 419, 424, 425, 85 A. 912. Of course such corporation must conform to the statutory requirements for procedure which obtain in this jurisdiction, and which do not arbitrarily subject it to burdensome requirements because of its original, having no reasonable support in that fact, and are not laid on other suitors in like situation. Kentucky Finance Corporation v. Paramount Auto Exchange Corporation, 262 U.S. 544, 551, 43 S.Ct. 636, 639, 67 L.Ed. 1112.

Although a taxing statute is not to be extended by implication beyond the clear import of the language used, and doubts are to be resolved against the taxing power, the real meaning and purpose of the Legislature is to be sought after and, if disclosed by a fair and reasonable construction, it is to be given effect. Union Twist Drill Co. v. Harvey, Comm'r, 113 Vt. 493, 502, 37 A.2d 389; First Nat. Bank v. Harvey, Comm'r, 111 Vt. 281, 292, 16 A.2d 184; In re Fulham's Estate, 96 Vt. 308, 314, 119 A. 433. Such legislative intention is to be ascertained, not from the literal sense of the words used but from a consideration of the whole and every part of the statute, the subject matter, the effects and consequences and the reason and spirit of the law. Central Vermont Ry. v. Campbell, 108 Vt. 510, 524, 192 A. 197, 111 A.L.R. 175. Moreover any statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubt upon that score. United States v. LaFranca, 282 U.S. 568, 574, 51 S.Ct. 278, 281, 75 L.Ed. 551; State v. Clement Nat. Bk., 84 Vt. 167, 200, 78 A. 944, Ann.Cas.1912D, 22; Central Vermont Ry. v. Campbell, supra, and other cases therein cited.

It will be necessary briefly to review the pertinent provisions of No. 35, Acts of 1939. By § 2 thereof it is required that each wholesale or retail dealer engaged in the business of selling cigarettes in this state shall secure a license from the Commissioner of Taxes, and that such license shall be issued by the commissioner on application, presented on a prescribed form. § 3 treats of the cancellation of a license when the business with respect to which it was issued has been sold or transferred, the issuance of a new license where the place of a retail business has been removed to another address, and the renewal of a license after expiration. § 4 provides for the revocation or suspension of a license by the Commissioner, and for a hearing by the Commissioner as provided in § 16, on application of the person aggrieved, who may further appeal as provided in § 17. § 5 imposes a tax on all cigarettes held by any person for sale in this State, the payment thereof to be evidenced by the affixing of stamps to the packages containing the cigarettes. § 6 makes it the duty of the Commissioner to secure such stamps and sell them to licensed wholesale and licensed retail dealers. §§ 7, 8 and 9 deal with the redemption of unused stamps, and the duty of the licensed dealers to affix them to the packages of cigarettes. § 10 forbids the sales of unstamped packages and imposes a penalty for so doing. § 11 provides for the seizure of unstamped packages and their sale, subject to the payment of the tax, by the Commissioner. § 12 provides that any person claiming an interest in cigarettes which have been seized, who has not previously been heard or who has waived hearing may make written application to the Commissioner for a hearing, and that proceedings on such application ‘shall be taken as provided in sections 16 and 17 of this act.’ § 15 gives the commissioner and his authorized agents the power to administer oaths and take testimony under oath relative to the matter of inquiry or investigation, to issue subpoenas and to require the production of pertinent books, papers and documents. By §...

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