State v. Hallenberg-Wagner Motor Co.

• Decision Date: 26 August 1937
• Citation: 108 S.W.2d 398,341 Mo. 771
• Parties: The State, Appellant, v. Hallenberg-Wagner Motor Company, a Corporation
• Court: Missouri Supreme Court

108 S.W.2d 398

341 Mo. 771

The State, Appellant, v. Hallenberg-Wagner Motor Company, a Corporation

Supreme Court of Missouri

August 26, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Reversed and remanded (with directions).

Roy McKittrick, Attorney General, Olliver W. Nolen and Edward H. Miller, Assistant Attorneys General for appellant.

Victor Packman and Anderson, Gilbert, Wolfort, Allen & Bierman for respondent.

(1) Taxing statutes are strictly construed in favor of the taxpayer and unless the imposition of the tax is clear the taxpayer is not subject to tax. State ex rel. v Hyde, 241 S.W. 396; State ex rel. v. Gehner, 27 S.W.2d 3. (2) Section 2 of the act (Ex. Sess. Acts 1933-4, p 157) provides for a tax on the privilege of engaging in the business of selling tangible personal property at retail, and imposes a tax on such person at the rate of one-half of one per cent of the gross receipts from the sale of all tangible personal property to and including December 31, 1935, and does not impose a tax upon each sale. All the sections of the act show that it was not the intention of the Legislature to impose double taxation. Section 6 (p. 159) provides that merchandise returned to the retailer entitles him to a credit in determining his gross receipts. Section 5 (p. 158) provides that on sales made on time only the amount received is to be included in the gross receipts base on which the tax is figured. All of these sections must be considered. Uniformly the courts of this State have held that every provision of the act must be considered and portions cannot be disregarded for the purpose of giving a particular construction. State ex rel. v. Offutt, 26 S.W.2d 831; Castilo v. State Highway Comm., 279 S.W. 677; Palmer v. Omer, 295 S.W. 123; Powers v. Kansas City Pub. Serv. Co., 328 Mo. 770, 41 S.W.2d 810; De Jarnett v. Tickameyer, 328 Mo. 153, 47 S.W.2d 686; Bowers v. Mutual Ins. Co., 62 S.W.2d 1058. (3) The attempted levy of the State Auditor would be double taxation and instead of paying 50/100 of 1 per cent on its gross receipts, as provided by the statute, appellant would pay a tax of approximately 68/100 of 1 per cent. Even where double taxation is permissible (and it is not here) it must be clearly set out in the statute. Auto Gas Co. v. St. Louis, 32 S.W.2d 283. Section 3, Article X of the Missouri Constitution provides that taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and this provision of the Constitution applies to occupation license taxes. St. Charles ex rel. Palmer v. Schulte, 305 Mo. 128; St. Louis v. Spiegel, 75 Mo. 145, Id., 90 Mo. 587.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

We have for determination whether the 1933 Missouri sales tax [Ex. Sess. Laws 1933-1934, p. 155-166] is to be computed on the basis of actual cash receipts or the basis of the total selling price of each of several articles involved in a chain of transactions whereby a retailer, who accepts other merchandise in part payment of the purchase price, finally converts a given article of merchandise into cash, and, possibly, certain constitutional features of said law. The State, appellant, maintains the tax should be computed on the total selling price of the several articles; whereas Hallenberg-Wagner Motor Company, respondent, a corporation engaged in the business of selling new and used automobiles at retail, maintains the tax should be computed on the actual cash receipts -- money or charge or time sales under the act. The provisions of said law presented by the litigants for construction read:

"Sec. 1. Definitions. The following words, terms and phrases when used in this act have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: . . .

"(b) 'Sale' means any transfer, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for valuable consideration. . . .

"(d) 'Gross receipts' means the total amount of the sale price of the sales at retail including any services that are a part of such sales made by the businesses herein referred to, capable of being valued in money, whether received in money or otherwise; provided, however, that 'Gross receipts' shall not include the sale price of property returned by customers when the full sale price thereof is refunded either in cash or by credit. For the purpose of this act, the total amount of the sale price above mentioned shall be deemed to be the amount received. . . .

"(g) 'Sale at retail' means any transfer of the ownership of, or title to, tangible personal property to the purchaser, for use or consumption and not for resale in any form as tangible personal property for a valuable consideration. . . .

"Sec. 2. Tax imposed on retail sales -- amount. For the privilege of a person engaging in the business of selling tangible personal property at retail a tax is hereby imposed upon such person at the rate of one-half of one per cent of the gross receipts of any such person from the sale of all tangible personal property sold in this state on and after the effective date of this act to and including December 31, 1935. . . .

"Sec. 5. Monthly returns to be filed -- date of final return. . . . In case of charge and time sales the amount thereof shall be included as sales in said returns as and when payments are received by the person, without any deduction therefrom on account of the cost of the property sold, the cost of the materials used, labor or service cost, interest paid, losses or any other expenses whatsoever. . . .

"Sec. 6. Refunds to purchasers to be deducted. Refunds made by the seller during the preceding calendar month to purchasers, on account of tangible personal property, substances, services and things returned to the seller, shall be allowed as a deduction in case the seller had theretofore included the receipts from the sale of such in a return made by such person and had paid the tax imposed by this act with respect to such receipts."

Preliminary to a discussion of the issues involved, respondent urges upon us certain rules governing the construction of statutes, useful to remove, not create, doubt in ascertaining the true intent of a law. [59 C. J., p. 943, sec. 563; Clark v. Kansas City, etc. Railroad Co., 219 Mo. 524, 534, 118 S.W. 40, 44 (stating: "We must not interpret where there is no need of it"); De Jarnett v. Tickameyer, 328 Mo. 153, 158, 40 S.W.2d 686, 688.] We find the rules relied upon, with their limitations, etc., stated in Corpus Juris, and quote briefly therefrom:

"Provided always that the interpretation is reasonable and not in conflict with the legislative intent, it is a cardinal rule of construction of statutes that effect must be given, if possible, to the whole statute and every part thereof." [59 C. J., p. 995, sec. 595, nn. 44, 45 and n. 48 (stating: ". . . so an interpretation which gives effect to the entire language will be selected as against one which does not"; Castilo v. State Highway Commission, 312 Mo. 244, 266, 279 S.W. 673, 677(5) (stating "If possible, this language must be given some force and effect. . . . In order to carry his point, one may not cull out parts of the statute inconsistent with his view and treat them as surplusage or idle repetition"); Palmer v. Omer, 316 Mo. 1188, 1195, 295 S.W. 123, 126(6); Bowers v. Kansas City P. S. Co., 328 Mo. 770, 781, 41 S.W.2d 810, 815(17, 18); Bowers v. Missouri Mut. Assn., 333 Mo. 492, 505(2), 62 S.W.2d 1058, 1062(3); Rutter v. Carothers, 223 Mo. 631, 643, 122 S.W. 1056, 1059(a).]

"The courts must confine themselves to the construction of the law as it is, and not attempt . . . to supply defective legislation, or otherwise amend or change the law under the guise of construction." [59 C. J., p. 945, nn. 52, 54, 55; the Clark case, supra; State ex rel. v. Offutt, 223 Mo.App. 1172, 1175, 26 S.W.2d 830, 831(2).]

Like general rules govern the construction of revenue laws, which, when "ambiguous or doubtful, will be construed strictly in favor of the taxpayer and against the taxing power" [59 C. J., p. 1131, sec. 670, nn. 84-86; State ex rel. v. Gehner (Banc), 325 Mo. 24, 29, 27 S.W.2d 1, 3(3), citing authority]; but, of course, the rule of strict construction may not serve to defeat the intention of the lawmaker (Re Clark's Estate, 270 Mo. 351, 362, 194 S.W. 54, 57(2); State ex rel. v. Baker (Banc), 316 Mo. 853, 858, 859, 293 S.W. 399, 401(2, 4, 5)].

Respondent to sustain its contention that the act provides for the computation of the tax on the cash receipts only, argues such legislative intent is deducible from a consideration of the act as a whole when construed, as taxing statutes should be construed, strictly against the taxing authority and in favor of the taxpayer; because: (1) the tax is imposed "at the rate of one-half of one per cent of the gross receipts" (Sec. 2); (2) the taxpayer is allowed a deduction for refunds made on property sold when returned if the tax had been theretofore paid on the receipts from the previous sale of the property (Sec. 6 and Subsec. (d) of Sec. 1); (3) the amount of charge and time sales are to be accounted for only as and when payments are received (Sec. 5); and (4), under Subsec. (d), "gross receipts is not individuated to each particular sale, but is 'the total amount of the sale price of the sales at retail;'" that is, "it is the gross receipts [in money] from all the sales;" and the transactions involving the conversion of the original article sold into money through the medium of a subsequent sale or sales of merchandise accepted in part payment in a chain of transactions...