Manning & Martin, Inc. v. State Board of Equalization, 2233

• Decision Date: 26 January 1943
• Docket Number: 2233
• Citation: 133 P.2d 373,58 Wyo. 425
• Parties: MANNING & MARTIN, INC. v. STATE BOARD OF EQUALIZATION
• Court: Wyoming Supreme Court

133 P.2d 373

58 Wyo. 425

MANNING & MARTIN, INC. v. STATE BOARD OF EQUALIZATION

No. 2233

Supreme Court of Wyoming

January 26, 1943

APPEAL from the District Court of Laramie County; SAM M. THOMPSON Judge.

Action by Manning & Martin, Inc. against the State Board of Equalization of the State of Wyoming to recover use tax paid under protest. From an adverse judgment, the plaintiff appeals.

Affirmed.

For the appellant, there was a brief by Richard I. Drahn of Denver Colorado; George F. Guy and Ruth N. Edelman of Cheyenne Wyoming, and oral argument by Ruth N. Edelman.

This case involves a controversy as to the validity of an assessment of use taxes under Chapter 118, Laws of Wyoming, 1937, paid under protest and which appellant seeks to have refunded. Appellant contends that the articles upon which the use tax was assessed are exempt under Section 4-k of said Use Tax Act. The trial court rendered a judgment against appellant and affirming the order of the Board of Equalization, which appellant seeks to have reversed on this appeal. This Court held in Continental Supply Company v. People, 54 Wyo. 185 that the use tax is complementary to the sales tax. Brandtden v. Fincher (Calif.) 111 P.2d 979. We do not believe that the legislature intended to impede or hamper the industrial development of the State, by the enactment of the Use Tax law. We believe it was intended by the insertion of Section 4-k of the Act to exempt materials purchased outside the State, used in industrial and agricultural activities when such materials cannot be acquired in Wyoming. This exemption provision is significant in view of the sparse population and predominance of agriculture, when considered in connection with the limited purchasing facilities within the State. On the question of legislative intent, see City of Spokane v. State, 89 P.2d 826; Pacific Telephone and Telegraph Co. v. Henneford, 81 P.2d 786; Henneford v. Mason Co., 300 U.S. 577. We submit that the reasoning of the Supreme Court of Washington in Pacific Tel. Co. v. Henneford, 81 P.2d 786 is applicable to Section 4-k of the Use Tax law. In the Agreed Statement of Facts, the Attorney General has admitted that none of the commodities upon which the protested tax was assessed were "generally stocked in Wyoming for sale." This being the case, we contend that the present action comes within the first subdivision of the exemption and that the tax is not therefore enforceable. In Western Auto Transport v. City of Cheyenne, No. 2203, this Court held that the word "or" meant "and." Words and Phrases, Vol. 6, p. 5002, et seq. White v. Atchison, Topeka & Santa Fe Ry. (Kan.) 264 P. 73; Rice v. County Savings Bank, 108 A. 712; Georgia Co. v. Georgia, 164 S.E. 198. In Ohio Fuel & Supply Co., it was held that the word "or" used in statutes takes the alternative definition, meaning this or that, or it may be construed as a disjunctive term. Pompano Club v. State, 52 A. L. R. 51; Tyson v. Burton, 294 P. 753; Voight v. Industrial Commission, 130 N.E. 472. In view of the record in this case, we believe it is clear that the Use Tax is complementary to the Sales Tax, and that the exemption found at Section 4-k of the Use Tax Act applies to the case at bar, for the reason that the commodities involved are not generally stocked for sale in Wyoming.

For the respondent, there was a brief by Ewing T. Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General, and Arthur Kline, Assistant Attorney General, all of Cheyenne, and oral argument by Mr. Kline.

The decision in Continental Supply Co. v. People, 54 Wyo. 185, is controlling in this case. In that case the supplies were not generally stocked in the State. The word "or" may be construed as a conjunctive word to give effect to the legislative intent. Western Auto Transports Inc. v. City of Cheyenne, 118 P.2d 761; Houghton Bros. v. Yocum, 40 Wyo. 57; 30 Words and Phrases, pp. 39-63. If the word "or" is used in a disjunctive sense, all that portion of Section 4-k following the word will be rendered meaningless. Barrett v. Barrett, 46 Wyo. 84. The legislative history of the act shows a clear intention on the part of the legislature that the word "or" should be construed in a conjunctive sense. Burnham Hotel Co. v. City of Cheyenne, 30 Wyo. 458; State Board of Equalization v. Oil Well Supply Co., 51 Wyo. 226; Adams v. Savings Inst., 20 N.Y.S. 12; Maylone v. City of St. Paul, 42 N.W. 88; Folmsbee v. City of Amsterdam, 36 N.E. 821. Section 4-k of the Use Tax Act is an exemption clause and should be strictly construed. Goshen Company v. Hunt, 49 Wyo. 497. It is respectfully submitted that the judgment of the trial court should be affirmed.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

Manning & Martin, Inc., appellant herein, is a corporation organized under the laws of the State of Oklahoma and duly authorized to do business in the State of Wyoming. According to the stipulation of the parties herein it was at all times hereinafter mentioned engaged in the business of mining in this state. It bought certain machinery and equipment in connection with that business outside of the State of Wyoming, to be used, and which was actually used, in this state. The State Board of Equalization, on August 2, 1941, made an assessment against the appellant in the sum of $ 1874.48, an amount due as a "use tax" to the state. The amount was paid under protest, and a petition was filed with the State Board of Equalization for the refund of this amount. The petition was denied and an appeal was thereupon taken by the appellant to the district court of Laramie County, to recover the amount, in accordance with the provisions of Section 13 of Chapter 118, Session Laws of 1937. The district court affirmed the order of the State Board of Equalization, and from the judgment thus rendered the appellant has appealed to this court.

According to the stipulation of the parties, the machinery and equipment bought as above mentioned outside the State of Wyoming and used within this state for the purpose of mining was not generally stocked in the State of Wyoming for sale at the time that they were purchased by the appellant for use within the State of Wyoming, but were at the time of their purchase promptly purchasable in the State of Wyoming from or through a regularly established registered agency under the Wyoming Use Tax of 1937, namely, Ch. 118, Session Laws of that year. The appellant claims that, under this act, the property so purchased and used was exempt under the provisions of that act. Section 4 of that act provides as follows:

"Section 4. The storage, use or other consumption in this State of the following tangible personal property is hereby specifically exempted from the tax imposed by this Act:

* * *

(k) Machinery, equipment and industrial materials directly used in manufacturing, reconditioning, processing, publishing, transporting, mining, logging, farming or ranching when such machinery, equipment and materials or substantially their equivalents are not generally stocked in Wyoming for sale or are not promptly purchasable in Wyoming from or through a regularly established Wyoming individual, firm or agency registered as a retailer under this Act."

Appellant claims that the term "or" as italicized by us above, has been used in the disjunctive sense by the legislature and that accordingly the property bought and used by it as above mentioned is exempt under subdivision (k), since it is not generally stocked in this state, the exemption applying either if the property is not generally stocked in this state or if it is not promptly purchasable as mentioned in the act. It is argued that anything whatever, even a yacht, may be bought through a retailer in this state, so that the first clause has no meaning whatever if the contention of the state is upheld. The state, on the other hand, contends that the term...