| Mo. | Mar 17, 1937
Lead Opinion
The Fifty-seventh General Assembly in Extra Session, passed an act imposing an excise tax upon the privilege of engaging in the business of selling tangible personal property at retail and upon the privilege of engaging in the business of selling certain services. [Laws, Ex. Sess., 1933-34, pp. 155-166.] The act was repealed by the Fifty-eighth General Assembly. [Laws 1935, p. 411.] The plaintiff is a municipal corporation and owns and operates a system for the distribution and sale of water to consumers within the city. During the effective period of the act and prior to the filing of this suit plaintiff upon demand of the State Auditor, but, it alleges, under protest, paid the tax imposed by the act upon the privilege of engaging in the business of selling water service, the total amount paid to the State Auditor admittedly being $173.80. *800 Alleging, among other things, that the act "is not applicable to" it "as a municipal corporation" plaintiff by this suit sought to enjoin the State Auditor from paying the said sum of $173.80 to the State Treasurer and prays that "he be directed to repay said sum to plaintiff" and that the State Auditor be enjoined "from . . . attempting to collect" any further sums from plaintiff by virtue of said act. The circuit court found against plaintiff and it has appealed from that judgment.
To develop the basis of plaintiff's contention that the act does not apply to a municipality engaged in selling public utility service it will be necessary to refer to certain provisions thereof. Section 2A, page 157, provides (italics ours), "For the privilege of a person engaging in the business of rendering the services, furnishing or selling the substances and things hereinafter in this section designated or defined, a tax is hereby imposed upon such person at the rate of one-half of one per cent of the gross receipts of any such person from the sale . . . or the furnishing of the services, substances and things hereinafter in this section designated or defined, sold . . . or furnished in this state. . . . The tax imposed by this section as to the sale of services, substances and things shall apply to the businesses of: (a) . . . (b) sales of electricity or electrical current, water, sewer service, gas (natural or artificial), to domestic, commercial or industrial consumers." Thus it will be noted the tax is imposed upon a person "for the privilege" of such person "engaging" in the kind of business designated. "Person" as used in the act is defined in Section 1 thereof (p. 156) as follows: "The following words, terms and phrases when used in this act have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: (a) `Person' includes any individual, firm, copartnership, joint adventure, association, corporation, estate, trust, business trust, receiver, syndicate or any other group or combination acting as a unit, and the plural as well as the singular number." The plaintiff-appellant contends that it does not come within this definition, that, within the meaning of the act, it is not a person upon whom the tax is imposed and that the act does not apply to a municipality. The State Auditor takes the position that the word "corporation" as used in the foregoing definition should be taken and construed to include a municipality, it being a municipal corporation.
In definition and legal classification and terminology a well-settled distinction exists, and is recognized generally, between a "corporation" and a "municipal corporation." Each term has a distinct and commonly accepted meaning. As illustrative reference may be had to our statutes. The numerous statutory provisions relating to the organization, powers, etc., of municipalities are collected and classified under the designation "Municipal Corporations" (see for example Chap. 38, R.S. 1929). Municipalities are variously referred to in *801
our Constitution as cities or towns and municipal corporations. "In common parlance, towns, cities and other municipal organizations are not known as corporations." [Linehan v. City of Cambridge,
It follows that the judgment herein should be, and hereby is, reversed and the cause remanded with directions to the circuit court to grant such injunctive relief, as, in conformity herewith, plaintiff is entitled to have with judgment for plaintiff in such sum, if any, which the court shall find was collected from plaintiff by the State Auditor, under plaintiff's protest, if so, prior to the commencement of this *802 proceeding and held or impounded subject to the outcome hereof.Hyde and Bradley, CC., concur.
Addendum
The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All the judges concur.