Mississippi River Fuel Corp. v. Smith

• Decision Date: 01 April 1942
• Docket Number: No. 37831.,No. 37832.,37831.,37832.
• Citation: 164 S.W.2d 370
• Court: Missouri Supreme Court
• Parties: MISSISSIPPI RIVER FUEL CORPORATION ET AL., Appellants, v. FORREST SMITH, State Auditor, Respondent, EVANS & HOWARD SEWER PIPE COMPANY ET AL., Appellants.

164 S.W.2d 370

MISSISSIPPI RIVER FUEL CORPORATION ET AL., Appellants, v. FORREST SMITH, State Auditor, Respondent, EVANS & HOWARD SEWER PIPE COMPANY ET AL., Appellants.

No. 37831.

No. 37832.

Supreme Court of Missouri.

Division One, April 1, 1942.

As Modified on Denial of Motions to Transfer to Banc and for Rehearing June 3, 1942.

Further Rehearing Denied, July 28, 1942.

Further Motion to Transfer to Banc Denied, September 8, 1942.

Appeal from Cole Circuit Court. — Hon. Frank Hollingsworth, Special Judge.

AFFIRMED.

William A. Dougherty, James A. Potter, Hugh H. Sullivan and Sullivan, Reeder, Finley & Gaines for appellant, Mississippi River Fuel Corporation.

(1) The jurisdiction of these appeals in this court is amply supported. Constitution, Art. VI, Sec. 12; Grant v. Trust Co., 108 S.W. (2d) 347; Kitchen v. City of Clinton, 8 S.W. (2d) 602; State ex rel. v. Young, 327 Mo. 900; Wymore v. Markway, 338 Mo. 46; State ex rel. Martin v. Childress, 345 Mo. 495; Detrich v. Brickey, 327 Mo. 189; Foster v. Commission, 327 Mo. 416; State ex rel. v. Bank, 331 Mo. 689. (2) The pipe line has an interest in the controversy. (3) The pipe line is a private corporation. Mississippi River Fuel Corp. v. St. Louis, 97 Fed. (2d) 726. (4) The pipe line is engaged in interstate commerce. State ex rel. v. Public Service Comm., 337 Mo. 809; State ex rel. Panhandle Eastern Pipe Line Co. v. Public Service Comm., 93 S.W. (2d) 675; Public Utilities Comm. v. Landon, 249 U.S. 236; Pennsylvania Gas Co. v. Public Service Comm., 252 U.S. 23; Missouri v. Kansas Gas Co., 265 U.S. 298; East Ohio Gas Co. v. Tax Comm., 283 U.S. 465; State Tax Comm. v. Interstate Natural Gas Co., 284 U.S. 41; Southern Natural Gas Corp. v. Alabama, 301 U.S. 148; Arkansas Louisiana Gas Co. v. Department of Public Utilities, 304 U.S. 61; Sioux City, Iowa, v. Mo. Valley Pipe Line Co., 46 Fed. (2d) 819; Illinois Natural Gas Co. v. Central Illinois Public Service Co., U.S. Supreme Court, Jan. 5, 1942. (5) The reduction in the pressure of the gas which is an incident to the delivery thereof, has no significance so far as the interstate nature of the transaction is concerned. State ex rel. Panhandle Eastern Pipe Line Co. v. Public Service Comm., 93 S.W. (2d) 677; State Tax Comm. v. Interstate Natural Gas Co., 284 U.S. 41; Mill Creek Coal & Coke Co. v. Public Service Comm., 100 S.E. 557, 7 A.L.R. 1089. (6) There may be an interruption to the interstate movement without a corresponding disruption of interstate commerce. Western Union Telegraph Co. v. Foster, 247 U.S. 105. (7) And there is nothing in the manner of delivery by this pipe line to its customers which would interrupt or affect the interstate nature of the entire transactions. Western Oil Refining Co. v. Lipscomb, 244 U.S. 349. (8) Commerce in natural gas is the transportation, sale and delivery thereof to the consumer. The Pipe Line Cases, 234 U.S. 560; Mill Creek Coal & Coke Co. v. Public Service Comm., 100 S.E. 557, 7 A.L.R. l.c. 1089; Natural Gas Pipe Line of America v. Federal Power Comm., 120 Fed. (2d) 625. (9) The time or point of delivery and transfer of title does not control the interstate nature of the transaction. Western Oil Refining Co. v. Lipscomb, 244 U.S. 319; Jewel Tea Co. v. Carthage, 257 Mo. 390; Santa Cruz v. Labor Board, 303 U.S. 453. (10) It is immaterial whether the seller or purchaser owns the instrumentalities leading into the customer's plant and by means of which the delivery is effected. Lusk v. Atkinson, 268 Mo. 129; State ex rel. Cities Service Gas Co. v. Public Service Commission, supra. (11) Importation of a commodity, even in bulk, to meet the demands of specific customers under pre-existing arrangements is interstate business. Lusk v. Atkinson, supra; Sonnenborn Bros. v. Cureton, 262 U.S. 506. (12) But the importation of a commodity into a state to be held by the seller until he finds a purchaser is local commerce. E. Ohio Gas Co. v. Tax Commission, supra. (13) The exemption provision of the Sales Tax Act excludes transactions in interstate commerce. R.S. 1939, sec. 11409. (14) The power to tax must be clearly given by the statute. Leavell v. Blades, 237 Mo. 700. (15) The entire statute, in all its provisions, must be given effect. State ex rel. Dean v. Daues, 321 Mo. 1151; Graves v. Little Tarkio Drain. Dist. No. 1, 345 Mo. 557; State ex rel. v. Harter, 188 Mo. l.c. 529; Strottman v. Railroad, 211 Mo. l.c. 251; De Jarnett v. Tickameyer, 328 Mo. 153; Elsas v. Montgomery Elevator Co., 330 Mo. 526; Costilo v. State Highway Comm., 312 Mo. 264. (16) A statute is to be construed in the light of the law and the decisions as they exist at the time of its passage. 59 C.J., p. 1065; General Box Co. v. Mo. Utilities Co., 331 Mo. 845; Schott v. Continental Auto Ins. Underwriters, 326 Mo. 92; State ex rel. Westhues v. Sullivan, 283 Mo. 546; Meridith v. State Tax Comm., 163 Ore. 305, 96 Pac. (2d) 1082; Mississippi State Tax Comm. v. Brown, 193 So. 794. (17) Uniformity under the State Constitution and equal protection under the laws of the Federal Constitution are one and the same. State Constitution, Art. X, Sec. 3; Federal Constitution, Fourteenth Amendment, Sec. 1; State v. Pierce Petroleum Corp., 318 Mo. 1020. (18) The question of constitutionality of a statute must be raised in the pleadings. State ex rel. Dengel v. Hartmann, 339 Mo. 200; Moler v. Whisman, 243 Mo. 571. (19) The State Auditor has no such interest in the operation of an exemption provision of the Sales Tax Act, casting only a negative duty upon him, as will warrant his challenge to its constitutionality. 16 C.J.S., p. 173, sec. 82; State ex rel. v. Woods, 317 Mo. 408; State ex rel. Thompson v. Jones, 328 Mo. 225; State ex rel. Railway Co. v. Becker, 328 Mo. 549; State ex rel. v. Williams, 232 Mo. 71; State ex rel. v. Brown, 334 Mo. 786. (20) The Sales Tax Act in question levies basically a sales tax on sales "in this state." R.S. 1939, sec. 11408. (21) So long as a statute applies to all members of a class equally, there is no want of uniformity. St. Louis v. Bowler, 94 Mo. 634; Masonic Aid Assn. v. Waddill, 138 Mo. 637; Wire Co. v. Wollbrinck, 275 Mo. 357; Massachusetts Bonding Co. v. Chorn, 274 Mo. 28; St. Charles ex rel. Palmer v. Schulte, 305 Mo. 129; Ex parte Asotsky, 319 Mo. 822; Beverly Hills v. Schulter, 344 Mo. 1103.

Leland Hazard for appellant, Pittsburgh Plate Glass Company; Nicholas R. Criss, Jr., of counsel.

(1) The jurisdiction of these appeals in this court is amply supported. Mo. Constitution, Art. VI, Sec. 12; State ex rel. Parish v. Young, 327 Mo. 909; Wymore v. Markway, 338 Mo. 46; State ex rel. Martin v. Childress, 345 Mo. 495; Grant v. Trust Co., 108 S.W. (2d) 347; Kitchen v. City of Clinton, 320 Mo. 569; Detrich v. Brickey, 327 Mo. 189; Foster v. Commission, 327 Mo. 416; State ex rel. v. Farmers' Exchange Bank, 331 Mo. 689; R.S. 1939, sec. 2078. (2) The State Auditor, by his failure to object and except to the trial court's finding of facts and conclusions of law, is precluded from further questioning that sales of gas to Pittsburgh Plate Glass Company are sales in interstate commerce. Shapiro Upholstering Co. v. Connors, 45 S.W. (2d) 892; Gruen v. Standard Life & Acc. Ins. Co., 169 Mo. App. 161; Gilmore v. Harp, 92 Mo. App. 77; Snuffer v. Karr, 197 Mo. 182. (3) Sales of natural gas by Mississippi River Fuel Corporation to Pittsburgh Plate Glass Company are sales in interstate commerce. Public Utilities Comm. v. Landon, 249 U.S. 236; Pennsylvania Gas Co. v. Public Service Comm., 252 U.S. 23; Missouri v. Kansas Gas Co., 265 U.S. 298; Peoples Gas Co. v. Public Service Comm., 270 U.S. 550; East Ohio Gas Co. v. Tax Comm., 283 U.S. 465; State ex rel. Cities Service Gas Co. v. Public Service Comm., 337 Mo. 809; State ex rel. Panhandle Eastern Pipe Line Co. v. Public Service Comm., 93 S.W. (2d) 675; State Tax Comm. of Mississippi v. Interstate Natural Gas Co., 284 U.S. 41. (a) The transportation of gas through pipe lines from one state to another is interstate commerce. Public Utilities Comm. v. Landon, 249 U.S. 236; Pennsylvania Gas Co. v. Public Service Comm., 252 U.S. 23; Missouri v. Kansas Gas Co., 265 U.S. 298; Peoples Gas Co. v. Public Service Comm., 270 U.S. 550; East Ohio Gas Co. v. Tax Comm., 283 U.S. 465; State ex rel. Cities Service Gas Co. v. Public Service Comm., 337 Mo. 809; State ex rel. Panhandle Eastern Pipe Line Co. v. Public Service Comm., 93 S.W. (2d) 675; State Tax Comm. of Mississippi v. Interstate Natural Gas Co., 284 U.S. 41. (b) The transportation of natural gas through pipe lines from one state to another, and delivery therefrom, pursuant to a prior contract, to consumers in the latter state (whether distributing utilities or industrial customers), is interstate commerce. Public Utilities Comm. v. Landon, 249 U.S. 236; Pennsylvania Gas Co. v. Public Service Comm., 252 U.S. 23; Missouri v. Kansas Gas Co., 265 U.S. 298; Peoples Gas Co. v. Public Service Comm., 270 U.S. 550; State ex rel. Cities Service Gas Co. v. Public Service Comm., 337 Mo. 809; State ex rel. Panhandle Eastern Pipe Line Co. v. Public Service Comm., 93 S.W. (2d) 675; State Tax Comm. of Mississippi v. Interstate Natural Gas Co., 284 U.S. 41. (c) But the importation of natural gas into a state to be held by the seller until he finds a purchaser is intrastate commerce. East Ohio Gas Co. v. Tax Comm., 283 U.S. 465; Southern Natural Gas Corp. v. Alabama, 301 U.S. 148; Department of Public Utilities v. Arkansas Louisiana Gas Co., 194 Ark. 354, 108 S.W. (2d) 586. (d) The reduction in the pressure of the gas by the seller as an incident to the delivery thereof to the purchaser, does not affect the interstate nature of the transaction. State ex rel. Panhandle Eastern Pipe Line Co. v. Public Service Comm., 93 S.W. (2d) 675; State Tax Comm. of Mississippi v. Interstate Natural Gas Co., 284 U.S. 41. (e) It is immaterial whether the seller or purchaser owns the instrumentalities leading into the customers' plant and by...