Walgreen Co. v. State Board of Equalization of State

• Decision Date: 12 March 1946
• Docket Number: 2331
• Citation: 166 P.2d 960,62 Wyo. 288
• Parties: THE WALGREEN COMPANY, a Corporation, Plaintiff and Appellant, v. THE STATE BOARD OF EQUALIZATION OF THE STATE OF WYOMING, Defendant and Respondent
• Court: Wyoming Supreme Court

166 P.2d 960

62 Wyo. 288

THE WALGREEN COMPANY, a Corporation, Plaintiff and Appellant, v. THE STATE BOARD OF EQUALIZATION OF THE STATE OF WYOMING, Defendant and Respondent

No. 2331

Supreme Court of Wyoming

March 12, 1946

Rehearing Denied 62 Wyo. 288 at 336.

Appeal from District Court, Laramie County; SAM M. THOMPSON, Judge.

Action by the Walgreen Company, a corporation, against the State Board of Equalization of the State of Wyoming challenging the validity of an assessment against plaintiff under the Selective Sales Tax Act of 1937. From a judgment which affirmed an order of the State Board of Equalization imposing the assessment, plaintiff appeals.

Affirmed.

For the plaintiff and appellant the cause was submitted on the brief and also oral argument of John C. Pickett of Cheyenne Wyoming, and Anthony F. Zarlengo of Denver, Colorado.

POINTS OF COUNSEL FOR APPELLANT

The legislative intent in the Selective Sales Tax Act of 1937 is clear that the same is a consumers tax and that the history of the act is that the provision providing that the retailer shall assume and pay the 1% tax on sales of 24c or less was enacted for convenience to the retailer and to relieve the purchaser from an extremely high tax on low sales and was not to place the burden of the tax upon the retailer; that under the provisions of the aforesaid act the retailer is only required to return as excess collections the amounts which are over and above 2% of his total taxable sales; that in this case there were no such excess collections, and that the return as to this item to the Board was correct.

Revenue statutes are construed strictly in favor of the taxpayer and against the taxing power. 47 A. J. Page 216, Sec. 14; 139 A L. R. 378; State Board of Equalization v. Stanolind Oil and Gas Company, 54 Wyo. 521, 540; 94 P.2d 147; State v. Capitol Coal Company, 54 Wyo. 176, 182; 88 P.2d 481; Equitable Society v. Thulemeyer, 49 Wyo. 63, 96; 52 P.2d 1223, 1234.

For the defendant and respondent the cause was submitted on the brief of Louis J. O'Marr, Attorney General, Hal E. Morris Deputy Attorney General and Frank M. Gallivan, Assistant Attorney General, all of Cheyenne, Wyoming, and oral argument by Mr. Morris.

POINTS OF COUNSEL FOR RESPONDENT

Where a department charged with the enforcement of the law places a construction upon the law, and such construction exists for an appreciable length of time, during which the Legislature has had an opportunity to change the law and has not done so, the Legislature is deemed to have acquiesced in the construction of the department. Baldwin vs. Roby, 54 Wyo. 439; Equitable Life Assur. Society vs. Thulmeyer, 49 Wyo. 63.

While the departmental construction is entitled to great weight, it is not necessarily binding. Christensen vs. Sikora, 57 Wyo. 57.

Statutes limiting the time for action by the government in collecting its taxes are to be strictly construed in favor of the government. Dupont de Nemours & Co. v. Davis, 264 U.S. 456, 44 S.Ct. 364, 68 L.Ed. 788; W. F. Brown & Sons Lumber Co. v. Commissioner of Internal Revenue (C. C. A.) 38 F.2d 425; Imhoff-Berg Silk Dyeing Co. v. United States (D. C.) 43 F.2d 836; Bowers v. N. Y. & Albany Lighterage Co. 273 U.S. 346, 47 S.Ct. 389, 71 L.Ed. 676.

Except in the case of statutes of limitation against the government, the courts are inclined to construe limitation laws liberally, so as to effect the intention of the legislature, 34 A. J. 41.

The Selective Sales Tax Act does not provide a limitation on any action for the recovery of taxes due; if the words in the statute are words of limitation, then those sections are void as unconstitutional. If the words are considered to be as words of limitation upon this action, then the period of limitation would not commence to run until the time of the assessment.

RINER, Justice. KIMBALL, J., concurs. BLUME, Chief Justice, Dissenting.

OPINION

RINER, Justice.

This is an appeal proceeding brought to review a judgment of the district court of Laramie County which affirmed an order of the State Board of Equalization dated September 22, 1942, imposing an assessment of $ 3,661.91 upon the complaining party. The Walgreen Company, under the provisions of Ch. 102, L. of Wyo. 1937, usually referred to as the "Selective Sales Tax Act of 1937". The Walgreen Company may conveniently be referred to hereinafter as the "appellant" or as the "Company" and the State Board of Equalization as the "respondent" or simply as the "Board". The controversy arises upon what shall be the proper construction of portions of several sections of this Act of the Wyoming Legislature above mentioned and the facts involved are not in dispute, the cause having been tried in the district court upon an agreed statement thereof.

So far as is necessary to understand the history of this litigation and the contentions of the parties the following statement, we think, will suffice:

There are but two questions presented by this record and they come before us in consequence of the fact that appellant has, in times past, been engaged in the business of operating drug stores in this state wherein it made retail sales of tangible personal property upon which it was required by the law hereinbefore cited, to collect sales taxes from its customers and to pay the same, with other taxes, to the Board aforesaid for the benefit and use of the State of Wyoming. The period of time thus included and concerning which the contentions of the parties are here advanced is somewhat more than three years, i. e., from January 1, 1939, to July 31, 1942, inclusive. Between these dates, as paragraph "3. (A)" of the "Agreed Statement of Facts" aforesaid informs us "the Appellant made retail sales of tangible personal property to its customers in amounts of 25c or more totalling $ 672,428.97, which amounts included alleged sales to employees, money received from photographic work, and interstate sales as hereinafter set forth; that from such sales of 25c or more the Appellant collected from its customers a sales tax in the sum of $ 14,871.92". During this period of time also the "Agreed Statement" aforesaid states further in its paragraph "(B)" "the Appellant made retail sales of tangible personal property to its customers in amount of 24c or less totalling $ 286,809.30, upon which no sales tax was collected from the customers." It seems there were other items of taxes which do not appear to be in question now.

The portions of Ch. 102, above referred to, with which this controversy is particularly concerned are found in section "4" thereof reading:

"From and after the effective date of this Act, within the limitation herein set out, there is hereby levied and there shall be collected and paid:

"(a) An excise tax upon every retail sale of tangible personal property made within the State of Wyoming equivalent to two per cent. (2%), except as provided in subsection (e) of this Act, of the purchase price paid or charged, or in the case of retail sales involving the exchange of property, equivalent to two per cent. (2%) of the consideration paid or charged, including the fair market value of the property exchanged at the time and place of the exchange, except that, those commodities now bearing a State excise tax in excess of five (5) per cent. shall not be taxable under the provisions of this Act";

and "subsection (e)" of said section "4" to which "subsection (a)" above refers as an exception is as follows:

"The State Board of Equalization shall provide uniform methods and schedules for adding the tax or the average equivalent thereof to the selling price, and when added such tax shall constitute a part of such price or charge, shall be a debt from consumer or user to retailer until paid, and shall be recoverable at law in the same manner as other debts, and it shall be the duty of said Board to formulate and promulgate appropriate rules and regulations to effectuate the purpose of this Act; provided, that the tax on all sales of twenty-four (24c) cents or less shall be one percent, and provided further, that the purchaser, consumer and user of any single unit purchase of twenty-four (24c) cents or less, shall not be required to pay the tax provided herein and provided further that the tax of one percent herein imposed on all purchases of twenty-four (24c) cents or less shall be assumed and paid for by the vendor who shall keep a detailed segregated record of all such sales. Any vendor who shall so elect may, in lieu of keeping such detailed segregated record, pay a tax of two per cent. on his total sales upon which the tax provided herein is imposed."

After declaring that:

"Every person receiving any payment or consideration upon a sale of property or service subject to the tax imposed under the provisions of this act, or to whom such payment or consideration is payable, (hereinafter called the vendor) shall be liable and responsible for the payment of the entire amount of the taxes imposed and payable under this Act, and shall on or before the 15th day of each month, make a true return of the preceding months gross sales to the State Board of Equalization and shall remit all the taxes due the State from him to the State Board of Equalization. The vendor shall collect the tax from the vendee on all sales of twenty-five (25) cents or more, but in no case shall he collect as tax an amount (without regard to fractional parts of one cent) in excess of the tax computed at the rates prescribed by this Act. Such returns shall contain such information and be made in such manner as the State Board of Equalization may by regulation prescribe",

section 5 of this statute sets forth sundry other provisions which do not seem at present to concern us further. The law...