CANTEEN CORPORATION, Rеspondent, v. Gerald GOLDBERG, Director of Revenue, Missouri Department of Revenue, Appellant.
No. 61224.
Supreme Court of Missouri, en banc.
Jan. 15, 1980.
DONNELLY, Judge.
THE DEFENDANT: Yes, sir.
THE COURT: All right. Bring the jury down.
MR. CAIN: Do you want me to represent you or do you want to represent yourself with me beside you?
THE DEFENDANT: I can‘t represent myself.
MR. CAIN: At this time, on behalf of the defendant, we would ask for a mistrial on the basis that the defendant has been brought into court in a shackled condition and that statements have been made in open court by the defendant that would be prejudicial to him receiving a fair trial. Therefore we‘d ask for a mistrial. [Emphasis addеd.]
THE COURT: Overruled.
INSTRUCTION M.A.I.-CR 1.06
This case will proceed in the following order: . . .”
It cannot be determined from this record whether the jury ever did see the appellant in shackles nor, parenthetically, what the shackles consisted of, i. e., whether they were handcuffs or leg-irons, or something else. Although the attorney for appellant and appellant were together whenever the handcuffs or other shackles were allegedly put on appellant and had ample opportunity to object prior to appellant‘s appearance before the jury, there was no objection made to the procedure at that time. The statement in the motion for mistrial made by appellant‘s counsel does not prove itself. And even if one did assume that the appellant was at least momentarily handcuffed, that would not necessarily compel a finding that the court abused its discretion in failing to grant a mistrial, nor would it demonstrate prejudice requiring a reversal of the conviction.
One might assume that the reason the subject was not mentioned again throughout the entire trial of this case is that the problem, whatever it may have been, was promptly corrected and did not continue throughout the trial.
Under these circumstances with the state of the record as it exists in this case, it is not appropriate that the Court engage in any definitive opinion with respect to the rights and powers of a court to handcuff or shackle a defendant during the trial of a cause.
The record does not provide an evidentiary basis upon which аppellant‘s point on appeal could be considered and ruled in his favor, and the point, therefore, is overruled.
The judgment is affirmed.
All concur.
John Ashcroft, Atty. Gen., Arnold R. Day, Asst. Atty. Gen., Jefferson City, for appellant.
DONNELLY, Judge.
This appeal involves assessment of taxes undеr the provisions of the Sales Tax Law (
On February 10, 1977, the Director assessed additional tax in the total amount of $38,231.78, including interest, against Canteen. On March 21, 1977, Canteen filed a Petition for Reassessment with the Director and paid the assessment of $38,231.78 under protest. On May 17, 1977, a hearing was held by a hearing officer of the Department of Revenue. On March 10, 1978, Canteen‘s Petition for Reassessment was denied. On April 6, 1978, Canteen filed a Petition for Judicial Review “in the manner provided by chapter 536, RSMo” in the Circuit Court of St. Lоuis County under the authority of
On December 28, 1978, the Honorable Drew W. Luten, Judge of the St. Louis County Circuit Court, set aside and abated
The first issue on appeal compels a construction of
Canteen operated a dining facility for the residents of Council Plaza, a retirement home. Canteen rented space from Council Plaza and was in charge of the actual serving of meals to the retirees. Canteen billed Council Plaza monthly for the number of meals served, at a predetermined price per meal. Council Plaza in turn billed the retirees for their meals at a price fixed by Council Plaza. Council Plaza was legally obligated to pay Canteen for the meals whether or not Council Plaza received payment. This operation accounts for $18,453.53 of the total additional assessment.
The trial court found that the Canteen-Council Plaza operation involved two transaсtions: (1) sale by Canteen to Council Plaza of meals for resale, and (2) resale of the meals by Council Plaza to the retirees. We agree. We are cited to no case directly in point and have found none. In Berry-Kofron Dental Laboratory Co. v. Smith, 345 Mo. 922, 137 S.W.2d 452 (1940), this Court sought to define a “sale at retail.” We need not approve or disapprove the Berry-Kofron language. A general rule, other than the language of
The second issue on appeal compels an application of
This issue involves sales tax on receipts from coin-operated vending machines placed by Canteen in Missouri. This operation accounts for $19,122.45 of the total additional assessment.
An examplе of the operation is the sale of a candy bar from a vending machine for twenty-five cents. Canteen would contend it was charging twenty-four cents for the candy bar and collecting one cent sales tax. The Director would contend that
“It is well established that the right of the taxing authority to levy a particular tax must be clearly authorized by the statute, and that all such laws are to be construed strictly against such taxing authority.” State ex rel. Ford Motor Co. v. Gehner, 325 Mo. 24, 29, 27 S.W.2d 1, 3 (banc 1930).
The third issue on appeal involves the action of the trial court in ordering the Director to pay court costs. Canteen concedes the error.
In Southwestern Bell Telephone Co. v. Feuerstein, 529 S.W.2d 371 (Mo.1975), a case involving real estate taxes in St. Charles County, this Court held that a taxpayer is entitled to interest earned on impounded funds. In International Business Mаchines Corporation v. State Tax Commission, 362 S.W.2d 635, 641 (Mo.1962), this Court denied the allowance of interest on refunds, noting “there is no provision in the sales tax act for the payment of interest on refunds.” The Court did not address the question of interest earned on refunds.
We decline to expand the Feuerstein holding to the Sales Tax Law. On the record before us, we cannot anticipate the practical effect of such a holding.
The judgment of the trial court is affirmed on the first and second issues and reversed and remanded on the third and fourth issues.
RENDLEN, WELLIVER, MORGAN and HIGGINS, JJ., concur.
SEILER, J., concurs in part and dissents in part in separate opinion filed.
BARDGETT, C. J., dissents in separate opinion filed.
SEILER, Judge, concurring in part and dissenting in part.
I concur in that portion of the principal opinion which reassesses the taxes as to the meals, except that I would allow respondent the interest earned on the refund.
I concur in the dissenting opinion of BARDGETT, C. J., as to the denial of reassessment on sales made through the vending machines.
BARDGETT, Chief Justice, dissenting.
I respectfully dissent.
The facts have been stated in the principal opinion. Respondent Canteen Corporation was in control of the food which it, through its employees, served to the consumers, who are residents of Council Plaza, a retirement home, and the entire food operation was in the total control of Canteen Corporation. The prices of the meals were fixed in the contracts between Council Plaza and Canteen Corporation, and the serving of these meals to the residents was in satisfaction of contractual obligations undertaken by Council Plaza to the residents. The contract itself states that its purpose wаs to allow respondent Canteen Corporation to conduct a restaurant and catering business on the premises of Council Plaza. No Council Plaza employees were in control of the food at any time. Under the contract respondent was obligated to prepare аnd serve two meals a day for each registrant and to dispose of all leftovers, as well as to pay all taxes assessed against equipment or merchandise as a result of this operation.
The burden of proving that the sale of the food in this instance was not a sale at retail is upon the person who made the sale. An exemption certificate signed by the purchaser [Council Plaza] or its agent is required to be kept by the seller [Canteen Corporation] as evidence of any exempt sales claim.
In my opinion there is no substantial evidence to support a finding that there was, in fact, first a sale by Canteen to Council Plaza of meals for resale and then a resale of the meals by Council Plaza to the retirees. In my opinion the evidencе clearly supports the finding that the only sale was from Canteen to Council Plaza at retail and not for resale. As noted, Council Plaza was merely carrying out its contract with the residents in the purchase of these meals
Therefore, in my opinion, the trial court was in error in holding that the sale by Canteen to Council Plaza of meals constituted a sale for resale. In my opinion the sale by Canteen to Council Plaza was a sale at retаil and was properly subject to sales tax. I would therefore reverse the trial court‘s holding on this issue with directions to reinstate the decision of the Director of Revenue.
As noted in the principal opinion, the second issue on appeal involves sales through a vending machine. The exаmple given is a candy bar that can be purchased out of the machine by inserting twenty-five cents. The advertised price of this candy bar is twenty-five cents. The Director of Revenue imposed a tax on the twenty-five cents. That was the price the seller advertised on the machine as the selling price of the product. The sales tax in Missouri is a tax upon the seller for the privilege of engaging in the business of selling tangible personal property, etc.
It is clear that if a person purchased a candy bar advertised in a counter for sale at twenty-five cents and paid the sales person twenty-five cents for that candy bar, the sales person would be required to collect the sales tax on the twenty-five cents in addition to thе twenty-five cents, and the seller‘s liability would be for the tax on the gross twenty-five cent sale. The seller would not be allowed to avoid payment to the state of sales tax on the full twenty-five cents by simply contending that the advertised price of twenty-five cents included the sales tax. That would be a violаtion of
I would therefore reverse the judgment of the circuit court as to this issue with directions to reinstate the finding of the Director of Revenue.