W. S. Libbey Co. v. Johnson

Decision Date03 February 1953
Citation94 A.2d 907,148 Me. 410
CourtMaine Supreme Court
PartiesW. S. LIBBEY CO. v. JOHNSON, State Tax Assessor.

Skelton & Mahon, Lewiston, for plaintiff.

Alexander A. LaFleur, Atty. Gen., Boyd L. Bailey and Miles P. Frye, Asst. Atty. Gen., for defendant.

MURCHIE, Chief Justice.

The plaintiff's appeal herein comes to this Court on report, under an agreed statement of facts, to which reference will be made when certain unusual features concerning the legislation it brings under review, and the mis-printing of that legislation in the session laws of 1951, have been noted. The legislation is the Sales and Use Tax Law, R.S., Chap. 14-A, mis-printed in P.L.1951, Chap. 250. It was enacted by Legislative Document No. 1273 of the Ninety-Fifth Legislature, referred to hereafter as 'L.D. 1273', but is not available in its original form anywhere in our printed laws or statutes, and never will be.

P.L.1951, Chap. 250, § 1, as printed, carries thirty-four sections which 'shall be known and may be cited as the 'Sales and Use Tax Law." This was the recital of L.D. 1273, where the first thirty-three were enacted, as emergency legislation, effective May 3, 1951, with a Section 34 that was repealed by Section 9 of P. & S. L.1951, Chap. 213, referred to hereafter as the 'State Tax Act'. It was therein ordered that the repealed section should not be printed 'as a part of the session laws of 1951.' With the fact that it was not so printed, this Court, of course, has no quarrel. It is entirely within the competence of the Legislature to repeal legislation before it becomes effective, and direct the Director of Legislative Research, the official charged with the duty of printing our session laws, P.L.1947, Chap. 392, to omit the printing of it. Section 3 of the Sales and Use Tax Law provides that the tax imposed by its terms shall be applicable to sales made in this State 'on and after July 1, 1951', and the State Tax Act was enacted, as emergency legislation, prior to that time, on May 21, 1951. The Sales and Use Tax Law was in effect from May 3, 1951 to May 21, 1951 for the limited purpose, as its emergency preamble discloses, of authorizing the creation and organization of 'an efficient administrative agency for the collection' of the taxes it was designed to impose.

The repealed section was not an essential part of the law, carrying nothing more than a declaration of policy with reference to state property taxation, which was to be effective only if sales taxes were collected under its provisions, and property in the unorganized area of the State could be subjected to a tax not applicable in our cities and towns. See Opinion of the Justices, 146 Me. 239, 80 A.2d 421. It was after the Justices of this Court gave an advisory opinion against the constitutionality of such special taxation that the section was repealed. We quote it, to have it in print in a place more available than the single one where it may now be found, i. e. in the engrossed copy of L.D. 1273, in the office of the Secretary of State. In doing so, we include the section number and caption, for a reason that will be apparent when the section which replaced it, and is printed as part of P.L.1951, Chap. 250, is quoted hereafter:

'Sec. 34. Elimination of state property tax. In the event that the provisions of this chapter become effective for the purpose of collecting taxes as levied herein, there shall be no state property tax levied for the year 1952 and thereafter.'

The new section, enacted in the State Tax Act, as noted, appears twice in the printed session laws of 1951, (1) in P.L.1951, Chap. 250, where it very definitely does not belong, and (2) as Section 10 of the State Tax Act, wherein it was enacted, to further amend 'Chapter 14-A of the revised statutes', from which the original Section 34 had been deleted in the section preceding. The recital was that said chapter was amended by adding thereto a new section 'to be numbered 34'. We quote it from P.L.1951, Chap. 250, emphasizing the identification of the State Tax Act, following the caption, as the source of its enactment. It is identical with Section 10 of the State Tax Act, except for that explanatory material:

'Sec. 34. Tax is levy on consumer. P. & S.L., 1951, c. 213, §§ 9, 10. The liability for, or the incidence of, the tax on tangible personal property provided by this chapter is hereby declared to be a levy on the consumer. The retailer shall add the amount of the tax on such property and may state the amount of the taxes separately from the price of such property on all price display signs, sales or delivery slips, bills and statements which advertise or indicate the price of such property. The provisions of this section shall in no way affect the method of collection of such taxes on such property as now provided by law.'

For a reason which is not apparent, but is quite incomprehensible, to this Court, the Director of Legislative Research read the 'to be numbered 34' of Section 10 of the State Tax Act as a direction, or authorization, for printing it as such in P.L.1951, Chap. 250, § 1. We use the word 'incomprehensible' because that Chapter, as printed, presents the only instance of which we are aware wherein a partial revision of a law has been printed in our session laws, and that one in the form of emergency legislation. The emergency preamble which was used for the State Tax Act recites facts applicable to nothing except state property taxation, which is the subject matter of the first eight of its twelve sections. Therein there are no factual recitals applicable to the amendments of other laws effected by Sections 9 to 12 thereof, inclusive. In striking contrast, the emergency preamble used for L.D. 1273 was entirely appropriate, as this Court declared in Morris v. Goss, 147 Me. 89, 83 A.2d 556, to take the Sales and Use Tax Law, as enacted in Section 1 thereof, out of the operation of Article IV, Part Third, Section 16 of the Constitution, and would have accomplished the same result for the new Section 34 if that had been enacted as a part thereof. Reference to Morris v. Goss, supra, however, and its recognition that emergency preambles may present questions of law reviewable by this Court, makes it apparent that neither the original Section 34 of L. D. 1273, the repeal thereof, nor the enactment of the new Section 34 would have been effective on approval of the acts in which they were carried if appropriately challenged. It is undoubted, however, under the principle declared in Lemaire v. Crockett, 116 Me. 263, 101 A. 302, that each and all of them became effective after the expiration of ninety days from the adjournment of the Legislature.

For the purposes of this case it is entirely immaterial whether the original Section 34 of the Sales and Use Tax Law ever became effective, or when the new one did. The latter became effective in any event after the lapse of the constitutional referendum period, on August 20, 1951. It is clearly part and parcel of the Sales and Use Tax Law, and was enacted for the express purpose of declaring the legislative intention underlying the enactment of that law in L.D. 1273. Decisions heretofore rendered in the construction of particular parts of it give full recognition to the principle of statutory construction which declares that legislative intention, when determinable, must be given effect. Acheson v. Johnson, 147 Me. 275, 86 A.2d 628; Coca-Cola Bottling Plants, Inc. v. Johnson, 147 Me. 327, 87 A.2d 667; Hudson Pulp and Paper Corporation v. Johnson, 147 Me. 444, 88 A.2d 154; Androscoggin Foundry Co. v. Johnson, 147 Me. 452, 88 A.2d 158. As was said in Berry v. Clary, 77 Me. 482, 1 A. 360, 361, legislative intention is the 'guiding star in the construction of every statute.'

The issue presented by the plaintiff's appeal is accurately set forth in the agreed statement of facts as whether it 'is subject to assessment of taxes on sales made by it of less than twenty-five cents in amount.' The facts set forth therein may be summarized as follows, all section references being to the Sales and Use Tax Law. The plaintiff is a manufacturer who is a 'retailer', as that term is defined in Section 2, by reason of the sale of foods and beverages to its employees at the cafeteria in its plant for consumption on the premises. The defendant is the State Tax Assessor, the official charged with the duty of administering the law. The plaintiff, in a stated period, made such sales to its employees amounting to $3,329.39, and collected sales taxes thereon, under the provisions of Section 5, amounting to $38.43, which it remitted to the defendant when making a report showing a 'total sale price', as required by Section 12, in the amount stated. The tax rate of two per cent, fixed by Section 3, would involve a tax of $66.59 on that gross. The plaintiff was assessed for a deficiency of $28.16, under the provisions of Section 18, whereupon it filed a petition for reconsideration of such assessment, under Section 29, and took the appeal which brings the case forward, under Section 30, when its petition was denied.

The plaintiff's claim that the Sales and Use Tax Law, as originally written in L.D. 1273, imposed no tax on retailers, and that the provisions of Sections 3, 5 and 14, declaring that they should pay such taxes, adding them to sales prices, and be liable therefor as for personal debts, were designed for no other purpose than to provide a 'method of collection', is entirely untenable, as will be shown hereafter, and it may be said in passing, perhaps, that the very special reliance placed on the new Section 34 by its counsel discloses that it is the statement carried therein, that the tax is 'a levy on the consumer', upon which all the claims made, in last analysis, are based.

The legislative intention to tax sales regardless of price is clearly apparent in the language of Section 3, which imposes a tax 'on the value of all tangible...

To continue reading

Request your trial
19 cases
  • First Agr. Nat. Bank of Berkshire County v. State Tax Commission
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 27, 1967
    ...Enterprises, Inc. v. The State Common. of Rev. & Taxn. of the State of Kansas, 179 Kan. 696, 298 P.2d 326; W. S. Libbery Co. v. Johnson, State Tax Assessor, 148 Me. 410, 94 A.2d 907; Piedmont Canteen Serv. Inc. v. Johnson, Commor. of Rev., 256 N.C. 155, 123 S.E.2d 582, 91 A.L.R.2d 1127; F. ......
  • State v. Michaud
    • United States
    • Maine Supreme Court
    • April 22, 1955
    ...interpreted, as the State has attempted to plead it, that is, in the conjunctive. 'And' and 'or' are convertible. W. S. Libby Co. v. Johnson, 148 Me. 410, 94 A.2d 907, 910. The terms are not contradictory. State v. Cushing, 137 Me. 112, 15 A.2d 740; State v. Willis, 78 Me. 70, 2 A. In Commo......
  • Bangor-Hydro Elec. Co. v. Johnson
    • United States
    • Maine Supreme Court
    • February 8, 1967
    ...tax act, such as purchase for resale, or sale not in the regular course of business, are within the terms of the Act. See Libbey v. Johnson, 148 Me. 410, 94 A.2d 907. There is no contention that the sales involved were 'casual' Does the insertion of these poles upright in the ground, under ......
  • Community Telecasting Service v. Johnson
    • United States
    • Maine Supreme Court
    • June 13, 1966
    ...of the tax law. The burden of establishing tax exemption is on the plaintiff. Section 9, Chapter 17 R.S.1954; W. S. Libbey Company v. Johnson, 148 Me. 410, 420, 94 A.2d 907. The following citations refer to the statutes then in effect. Chapter 17 R.S.1954, as amended, contained the followin......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT