Wiseman v. Affolter

• Decision Date: 30 March 1936
• Docket Number: No. 4-4294.,4-4294.
• Citation: 92 S.W.2d 388
• Parties: WISEMAN v. AFFOLTER et al.
• Court: Arkansas Supreme Court

Page 388

92 S.W.2d 388

WISEMAN v. AFFOLTER et al.

No. 4-4294.

Supreme Court of Arkansas.

March 30, 1936.

Appeal from Chancery Court, Pulaski County; Frank H. Dodge, Chancellor.

Action by J. A. Affolter and others against Earl R. Wiseman, state commissioner of revenues. From a decree for plaintiffs, defendant appeals.

Affirmed.

Carl E. Bailey, Atty. Gen., Thomas Fitzhugh, Asst. Atty. Gen., and Millard Alford, of Little Rock, for appellant.

Donham & Fulk and G. W. Hendricks, all of Little Rock, for appellees.

JOHNSON, Chief Justice.

Appellee J. A. Affolter and a number of others engaged in the retail sale of whole milk in the vicinity of Little Rock instituted this action in the Pulaski chancery court against appellant, Earl R. Wiseman, commissioner of revenues for the state of Arkansas, the object of which was to permanently enjoin and restrain the collection of sales tax upon retail sales of whole milk. Upon trial, after issues joined by answer, testimony was adduced by the respective parties from which the court found that whole milk was exempt and not subject to sales tax levies. Thereupon appellant was permanently enjoined and restrained from making such sales tax levies against the sale at retail of whole milk, from which this appeal comes.

The sole question presented for consideration on this appeal is, Is the sale of whole milk at retail subject to a sales tax under the provisions of Act No. 233 of 1935 (page 591), commonly known as the Sales Tax Law?

Act No. 233 of 1935 by general terms levies a sales tax of 2 per cent. upon all sales at retail of tangible personal property in this state, exempting from such levy, however, certain designated commodities and transactions.

The constitutionality and validity of this act was sustained by us in Wiseman v. Phillips, 84 S.W.(2d) 91.

The second paragraph of section 15 of said Act (page 599), the provision with which we are concerned in this litigation, provides:

"All foods necessary to life, more specifically defined as follows: Flour, Meat, Lard, Sugar, Soda, Baking Powders, Salt, Meal, Butter fats, Eggs, and all medicines necessary for the preservation of public health, each of above to be exempt from the provisions of this Act."

Concededly and manifestly, whole milk as such is not expressly exempted by name from sales tax levies. Is it exempted by implication? The answer is to be found only by applying well-known and established rules of statutory construction and the application should be made in the light of attendant facts and circumstances.

Appellee's position is, and the chancellor so decided, that the words, "butter fats," as employed in the act exempted whole milk from sales tax levies. This conclusion was reached because first, whole milk is absolutely necessary to sustain life; second, "butter fats" predominately appears in whole milk; third, the testimony reflected that "butter fats" are the criterion used by commercial sellers and buyers thereof to ascertain the commercial value of whole milk.

On the other hand, appellant contends that "butter fats" is only one of the elements contained in whole milk — and is not the sole criterion to its commercial value — and that whole milk not being expressly designated as exempt by the act, the tax applies— and that the rule of ejusdem generis precludes consideration of the general language employed, "All foods necessary to life."

We shall consider appellant's contentions under two subheads, but in inverse order to that heretofore stated.

The rule of ejusdem generis is resorted to by the courts only in aid of statutory construction and is only applied by the courts in aid of ascertaining the legislative intent and does not control where the plain intent of the Legislature is apparent from the context and would be hindered thereby. Mason v. Intercity Terminal Ry. Co., 158 Ark. 542, 251 S.W. 10; Crabtree v. State, 123...