State ex rel. Bell v. Phillips Petroleum Co.

• Decision Date: 16 April 1942
• Docket Number: 37857
• Citation: 160 S.W.2d 764,349 Mo. 360
• Parties: State of Missouri at the Relation of Wilson Bell, State Treasurer, Appellant, v. Phillips Petroleum Company, a Corporation
• Court: Missouri Supreme Court

160 S.W.2d 764

349 Mo. 360

State of Missouri at the Relation of Wilson Bell, State Treasurer, Appellant, v. Phillips Petroleum Company, a Corporation

No. 37857

Supreme Court of Missouri

April 16, 1942

Appeal from Vernon Circuit Court; Hon. Thomas W. Martin Judge.

Affirmed.

Roy McKittrick, Attorney General, and Lawrence L Bradley, Assistant Attorney General, for appellant.

(1) A licensed distributor of gasoline, electing to compute and pay its gasoline tax on the alternative basis provided in Section 8347, R. S. 1939, is not entitled to take the three per cent deduction allowed by said statute, unless the gasoline, upon which the deduction is claimed, is reported and the tax due thereon is computed and paid on the basis provided in said statute, and unless said gasoline was, in fact, received as shown by invoices thereof, or manufactured, compounded or handled, by such distributor, within the State of Missouri. (a) Nature of the tax and purpose of the Legislature in imposing said tax. Secs. 8411, 8412, 8413, 8423, R. S. 1939; State ex rel. Winn v. Banks, 346 Mo. 1177, 145 S.W.2d 362; Central Transfer Co. v. Commercial Oil Co., 45 F.2d 400; Sec. 8439, R. S. 1939; Sec. 30, Laws 1927, p. 306; Secs. 1(b), 2, 3 and 12, Laws 1925, p. 282; Sec. 25, Laws 1925, p. 256; Secs. 8432, 8437, R. S. 1939; Sec. 28, Laws 1927, p. 304. (b) Purpose for which the three per cent deduction is given. Secs. 8413, 8437, R. S. 1939; State v. Standard Oil Co., 271 N.W. 185; State v. Phillips Petroleum Co., 271 N.W. 192; State ex rel. Winn v. Banks, 346 Mo. 1177, 145 S.W.2d 362; Rutter v. Carothers, 223 Mo. 631, 122 S.W. 1056; Fischbach Brewing Co. v. St. Louis, 231 Mo.App. 793 95 S.W.2d 335. (c) Respondent did not receive, manufacture, compound or handle within this State the gasoline in question. (1) Respondent did not receive the gasoline. Sec. 8437, R. S. 1939; Webster's New International Dictionary (2 Ed.), defining "receive;" Harvey v. Blue Oak Hdw. Co., 279 S.W. 155; In re McCullough, 74 P.2d 877, 114 A. L. R. 1302; Labarthe v. McRae, 97 P.2d 251; Reese v. State, 73 Ala. 18; Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 628; Texas Co. v. Wilkerson, 21 F.Supp. 771; State of Alabama v. King and Boozer, 62 S.Ct. 43; Curry v. United States, 62 S.Ct. 48. (2) Respondent did not handle the gasoline. Sec. 8437, R. S. 1939; Webster's New International Dictionary (2 Ed.), defining "handled;" Funk and Wagnall's New Standard Dictionary, defining "handled;" Scottish-American Mortgage Co. v. Massie, 60 S.W. 544; Adams Fish Market v. Sterett, 172 S.W. 1109; State ex rel. McAllister v. Dunn, 277 Mo. 30, 209 S.W. 110; Webster's New International Dictionary (2 Ed.), defining "manufacture" and "compound;" Fowne's Elementary Chemistry -- by Watts, p. 27; State ex rel. Bess v. Schult, 143 S.W.2d 486; State ex rel. Tadlock v. Mooneyham, 212 Mo.App. 573, 253 S.W. 1098; State ex rel. Consolidated School Dist. v. Hackman, 302 Mo. 558, 258 S.W. 1011. (3) The receiving or handling must be within this State. Sec. 8437, R. S. 1939; Porto Rico Ry., L. & P. Co. v. Mor, 252 U.S. 345, 64 L.Ed. 944; In re Hall's Estate, 337 Mo. 771, 85 S.W.2d 621. (4) The administrative construction is entitled to great weight. Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 281; Huntsville Trust Co. v. Noel, 12 S.W.2d 64; Williams v. Williams, 325 Mo. 963, 30 S.W.2d 69; In re Bernay's Estate, 344 Mo. 135, 126 S.W.2d 209; Secs. 8413, 8437, R. S. 1939. (5) That portion of the statute under construction is one granting a partial exemption from taxation, and must be construed strictly against the taxpayer and in favor of the State. Secs. 8413, 8423, 8437, R. S. 1939; State ex rel. Spillars v. Johnston, 214 Mo. 656, 113 S.W. 1083; State ex rel. St. Louis Y. M. C. A. v. Gehner, 320 Mo. 1172, 11 S.W.2d 30. (d) Respondent not receiving or handling the gasoline within this State is not entitled to take the three per cent deduction, but must compute and pay its tax on the basis of the number of gallons sold in this State, without any deduction. Secs. 8413, 8437, R. S. 1939.

Ewing, Ewing & Ewing, H. D. (Don) Emery, R. L. Foster, Darlene G. Anderson and D. E. Hodges for respondent.

(1) Where a taxpayer files its election under Section 8437, Revised Statutes of Missouri, 1939 (Sec. 8718, R. S. 1929), and pays tax on motor vehicle fuels received, manufactured, compounded or handled within the State of Missouri, rather than on the basis of motor vehicle fuel sold, it is entitled to the three per cent deduction allowed by the statute. (a) The Missouri Vehicle Fuels Tax Law reflects a comprehensive plan for the taxation of motor vehicle fuel. Secs. 8411, 8411 (c), 8412, 8413, 8414, 8417, 8418, 8432, 8437, 8440, R. S. 1939. (b) Missouri Motor Vehicle Fuels Tax Law does not disclose the purpose for which the three per cent allowance is granted. Sec. 8437, R. S. Mo. 1939; Sec. 92-1407, (C), Code of Georgia, 1933, as amended; Sec. 6, Senate Bill 85, Laws of Illinois, 1929, as last amended by Senate Bill 350, Laws of Illinois, 1939; Sec. 4281g-10, Carroll's Ky. Stat. Anno., 1936; Sec. 9, Chap. 162, Laws of Mississippi, 1936, as amended by Chap. 144, Laws of Mississippi, 1938; Sec. 2, Chap. 74, Laws of Nevada, 1935; Sec. 287, Art. 12-A, Chap. 60 of the Consolidated Laws of New York, as amended; Sec. 5, Initiated Measure, North Dakota, approved June 30, 1926, as amended; Sec. 6, Act of May 21, 1931, P. L. 149 (Pa.), as amended by Act of June 5, 1937, No. 358; Sec. 57.3804, South Dakota Code of 1939; H. B. No. 8, Art. XVII, Sec. 2(b), Laws of Texas, 1941; R. S. Title 57, Chap. 12, Sec. 57-12-7 (Utah), as amended by S. B. 246, Laws of 1939; Art. 4, Chap. 66, Sec. 405, Compiled Statutes of Nebraska; Sec. 2613(i5), Art. 3A, North Carolina Code of 1931, as amended; Sec. 659a, Title 68, Okla. Stat. Ann.; Secs. 8417, 8418, 8432, R. S. 1939. (c) Respondent received, manufactured, compounded or handled within the State of Missouri, the gasoline in question and computed and paid taxes on the gallons so received, manufactured, compounded or handled in accordance with Section 8437, R. S. 1939, Section 7819, R. S. 1929. 1. Respondent has elected to report and pay Missouri vehicle fuel taxes on the basis set forth in Section 8437, R. S. 1939, Section 7819, R. S. 1929. 2. Respondent received, manufactured, compounded or handled, for use, sale or distribution within the State of Missouri, the motor vehicle fuel involved in this action. Secs. 8413, 8414, 8432, 8437, R. S. 1939; Grier v. Kennan, 64 F.2d 605; Rutter v. Carothers, 223 Mo. 631, 122 S.W. 1056; Fischbach Brewing Co. v. St. Louis, 231 Mo.App. 793, 95 S.W.2d 335. (a) Respondent "received" the gasoline. Webster's New International Dictionary (2 Ed.), defining "receive;" Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628; Sec. 8437, R. S. 1939; Texas Co. v. Wilkerson, 21 F.Supp. 771. (b) Respondent "handled" the gasoline. Webster's New International Dictionary (2 Ed.), defining "handle"; Brinn v. Brinn, 213 N.C. 282, 195 S.E. 793; Aetna Ins. Co. v. Wheeler, 5 Lansing, 480; Sec. 8437, R. S. 1939; Adams Fish Market v. Sterett, 106 Tex. 562, 172 S.W. 1109; Gorman v. Offutt, 223 Mo.App. 1172, 26 S.W.2d 830; Rutter v. Carothers, 223 Mo. 643, 122 S.W. 1056. (c) Administrative construction of law is not controlling unless statute is ambiguous, particularly when such construction is erroneuos. Sec. 8437, R. S. 1939; State v. Baker, 316 Mo. 853, 293 S.W. 399; United States v. Farrar, 38 F.2d 515; Combs v. State Board of Education, 249 Ky. 320, 60 S.W.2d 957; In re Bernays' Estate, 344 Mo. 135, 126 S.W.2d 209; State ex rel. Cobb v. Thompson, 319 Mo. 492, 5 S.W.2d 57; McNally v. Grauman, 255 Ky. 201, 73 S.W.2d 28; Houghton v. Payne, 194 U.S. 88, 24 S.Ct. 590, 48 L.Ed. 888; Graham v. Joyce, 151 Md. 298, 134 A. 332; Board of Education of the City of Duluth v. Borgen, 192 Minn. 367, 256 N.W. 894. (d) Since Section 8437, R. S. 1939, Section 7819, R. S. 1929, is clear and unambiguous, it must be construed in accordance with its manifest intent. Section 8437, R. S. 1939. 3. Respondent computed and paid Missouri vehicle fuel taxes on the gallonage "received . . . manufactured, compounded or handled . . . for use, sale or distribution within this state." Sec. 8437, R. S. 1939.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action for collection of delinquent motor vehicle fuel tax, interest and penalties, under Article 2, Chapter 45, R. S. 1939. A jury was waived and the cause submitted to the court. The court found for defendant on counts 1 and 2 (covering the tax claimed on certain gasoline sold and delivered in this State in 1938 and 1939). Other counts were disposed of by agreement between the parties. Judgment was entered for defendant on counts 1 and 2 and plaintiff has appealed.

The facts, in part stipulated, are as follows: In 1938 and 1939 defendant "was licensed as a distributor of motor vehicle fuels, to-wit, gasoline, in the State of Missouri, and had on file with the State Inspector of Oils its election to pay gasoline tax on the basis provided in Section 7819, R. S. Mo. 1929," (now Section 8437, R. S. 1939, Mo. Stat. Ann., Sec. 7819, p. 5257). It "maintained and operated approximately one hundred two (102) bulk storage plants throughout the State of Missouri. Said bulk plants were used for the purpose of storing gasoline and other products in distributing the same therefrom to retail dealers in the State of Missouri, and in some instances in adjacent states. All of said bulk plants were supplied with gasoline by shipments by railroad tank car or by tank trucks from the storage facilities of defendant at the Kansas City, Kansas, refinery of defendant, the Okmulgee, Oklahoma, refinery of defendant, the Jefferson City, Missouri, terminal, and the...