American Agr. Chemical Co. v. Query

The opinion of the Court was delivered by Mr. Justice Cothran. This is an appeal from an order of his Honor, Judge Whaley, overruling a demurrer interposed by the Tax Commission to the complaint filed by the fertilizer company. The demurrer develops the controversy between1 the parties, which will appear from the following statement: On July 1, 1926, the fertilizer company had on hand at its factory in this state goods “which were not in a final state of manufacture” (quotation from the complaint), valued at $868,300. It made a return thereof to the Tax Commission at that figure and paid the license tax of $868.30 under protest and brought this action to recover that amount. The ground of its protest as stated in the notice served at the time of the payment was: “That the articles in question were only partially manufactured at the time the repeal took effect, and further that in any event the Statute was not intended to cover manufactured goods on hand at the time of its repeal inasmuch as the only means of admeasurement is to be derived from the receipts, none of the articles-covered by the enclosed returns having been sold; and generally that the Statute was not intended to cover such case, and does not cover same.” In the complaint the company takes the further position r “That the repeal of the said Act of March, 1923, divested the said Tax Commission of any po-wer to levy any tax under the provisions of Section 11-A of the said Act of 1923.”' Passing by the possible objection that the company is confined to the grounds stated in the notice of protest, we shall consider both grounds. *387 Section 11-A of the Act of 1923 (33 St. at Large, p. 21) provides for a license tax of one-tenth of 1 per cent, upon the entire receipts from sales made in or without the State, whether actually received or not, and provides: “In the case of any article manufactured in whole or in part within this State, and not sold or disposed of in this State, the value thereof shall he included,” upon which the tax is to be levied and paid. Taking the two provisions together, the tax authorized by the Section is to be levied (1) upon receipts from sales made in or without the State, evidently referring to deliveries; (2) upon the value of goods fully manufactured and not sold or disposed of in this State, which would include goods on hand as well as goods shipped elsewhere, in Contemplation of sales, to be cbnverted or additionally treated; (3) upon the value of goods partially manufactured and not sold or disposed of in this State, which would include goods on hand in that condition. It seems clear, therefore, that there is nothing in the contention of the company that the goods on hand partially manufactured did not constitute a fully marketable product and for that reason were not subject to the tax. The trial Judge, in our opinion, was clearly wrong in the construction of- the Act: “This tax was to be assessed on manufactured products according to the sums earned or charged for the manufactured articles. In case of articles partly manufactured in the State and shipped out of the State and disposed of out of the State, the value of the article as manufactured iru the State was to be taken and the tax assessed on it.” As counsel for the appellant aptly observes: “His Honor states in his order, Tn case of articles partly manufactured in the State and shipped out of the State and disposed of out of the State, the value of the article as manufactured in the State was to be taken and the tax assessed on it.’ The statute provides, ‘in the case of any article manufactured *388 in whole or in part within this State, and not sold or disposed of in this State, the value thereof shall be included.’ It is apparent that the statement by his Honor is quite different from that statement in the statute. His Honor’s construction limits the provision of the statute to articles which were shipped out of the State and disposed of out of the State, while the statute taxes all partially manufactured articles which have not been sold or disposed of in this State. In other words, the statute taxes everything except that which has been sold in the State, which includes all partially manufactured articles on hand as well as that which has been shipped out of the State; while his Honor’s construction taxes only that which has been shipped out of the State and sold out of the State.” The most serious contention of the respondent is as to the effect of the repealing statute upon the Act of 1923. In the appropriation Act of 1926 (34 St. at Large, p. 1119) is found the following: “That the license tax for every person, firm or corporation engaged in the business of manufacturing or mining ás provided in Section 11-A of an Act entitled ‘An Act to Raise Revenue for the Support of the State Government,’ approved March 26th, 1923, is repealed to take effect on the first day of July, 1926, so that no person, firm or corporation engaged in the business of manufacturing or mining shall be subject to the said tax on any goods manufactured or products of the mine mined after the first day of July, 1926.” The contention is that this statute repealed entirely the Act of 1923. If that had been the intention of the Legislature, the statute would have come to a full stop after the word “repealed.” Instead of this it proceeds with the statement that it should not go into effect until July 1, 1926, and adds the explanatory and limiting effect of the repeal: “So that no person, firm or corporation engaged in the business of manufacturing or mining shall be subject to the said *389 tax on any goods manufactured or products of the mine mined after the first day of July, 1926.” We think that the statute meant to keep alive the Act of 1923 until July'1, 1926, and the provision quoted can only mean to exempt the goods' manufactured after that date from the tax; “Bxpressio rndus est exclusio alterius.” The judgment of this Court is that the order appealed from be reversed, and the case remanded to the Court below for judgment in favor of the defendants. Messrs. Justices Brease, Stabrer and Carter concur.