286 N.W. 602 | Wis. | 1939
These were separate actions commenced on February 16, 1939, by Jos. Schlitz Brewing Company, a Wisconsin corporation, and Pabst Brewing Company, a corporation, respectively, as plaintiffs, against city of Milwaukee, defendant, to recover the amounts of certain personal property taxes theretofore paid under protest. The actions were consolidated for the purposes of trial and appeal and were tried to the court. Findings of fact and conclusions of law were duly made and entered, and judgment ordered for plaintiff in each action. From judgments in favor of plaintiffs, entered on April 17, 1939, defendant appeals.
The issue upon this appeal is whether malt or barley owned by a brewery and stored in its own warehouses and elevators until required for the manufacture of beer is subject to the occupation tax provided for by sec.
Sec.
"Every person, copartnership, association, company or corporation operating a grain elevator or warehouse in this state, except elevators and warehouses on farms for the storage of grain raised by the owner thereof, shall on or before December fifteenth of each year pay an annual occupation tax of a sum equal to one-half mill per bushel upon all wheat and flax and one-fourth mill per bushel upon all other grain received *121 in or handled by such elevator or warehouse during the preceding year ending April thirtieth; and such grain shall be exempt from all taxation, either state or municipal."
The principal contentions of the city of Milwaukee with respect to this section are, first, that it provides an occupational tax, and that therefore it is presumably applicable only to persons, partnerships, or corporations whose business is that of operating elevators, and does not apply to the elevator or warehouse of a brewer, miller, or other manufacturer of grain products because operating an elevator is not the business of such a manufacturer; second, that it relates to public rather than private elevators, and that this construction is supported by the decision in State ex rel. Bernhard Stern Sons v. Bodden,
We conclude that the contentions are unsound and that the trial court correctly disposed of them. The opening words of the section are clear and unambiguous. Every person, copartnership, etc., operating a grain elevator or warehouse in this state, except elevators and warehouses on farms for the storage of grain raised by the owner thereof, is required to pay an occupation tax. The section does not refer to every person whose occupation is that of operating a grain elevator or warehouse or a public grain elevator or warehouse. It specifically refers to every person operating a grain elevator or warehouse in this state with the exception stated. This exception is quite significant. It was deemed necessary by the legislature specifically to exempt elevators and warehouses operated by farmers for the storing of grain raised by them in order to avoid imposing an occupation tax upon them. If *122 the opening clause of the section meant only to deal with persons whose occupation is that of operating grain elevators or warehouses generally or that of operating public elevators or warehouses for the storage of grain there would be no purpose in excepting farmers because they would be without the definition and scope of the act. The enactment of the exception implies, (1) that otherwise a farmer whose occupation is not that of operating a private or public grain warehouse or elevator would be within the section, and (2) that this is the only exception intended.
Furthermore, light is cast upon the legislative purpose by the provisions of sec.
Nor is the statement in State ex rel. Bernhard Stern Sons v. Bodden, supra, to the effect that the legislators had their attention brought by the tax commission to the fact that the system of taxing grain in public elevators and warehouses resulted in evasions and want of equality in taxation entitled to the significance attributed to it by the city. Whether the evils which gave rise to the enactment of this section arose principally out of the operation of public elevators, as contended for by the city, or whether, as contended by plaintiffs, its enactment was promoted by the millers of the state to prevent discriminations and evasions that made it difficult them to compete with outside manufacturers of flour, we deem immaterial in this case. The same evils and inequalities as exist in the case of public elevators exist to a substantial extent in the case of private elevators. Some owners of elevators storing their own grain are able to dispose of it and empty their elevators by May 1st. Others are not so fortunate. If all succeed in disposing of their grain there is no appreciable personal property tax. If some do and some do not, then some are taxed excessively and some wholly or partly avoid the tax. This was the principal purpose of the enactment of the occupation tax on coal, and the two sections are so nearly the same in purpose and effect that we cannot believe that sec.
It is next contended by the city that upon this construction of sec.
"It is strenuously insisted that this interpretation of the act makes it invalid because it exempts grain handled in elevators and warehouses from taxation and makes all grain not so handled taxable."
The contention was rejected. Further than this, even if there were discriminations, as contended by the city, the city is not affected by the discrimination and has no standing to raise the constitutional point. Will of Heinemann,
We now deal with a contention which, if successful, would require reversal of the judgment as to the taxes upon the malt or malted barley involved. It is contended by the city that malt or malted barley is not grain. Evidence was produced upon this point and the findings of fact are to the effect that it is grain. This finding we deem to be supported by the evidence. The evidence is to the effect that malted barley is barley that has been germinated and the germination stopped at a suitable point of the development of the sprout by the application of heat and drying. The grain is indistinguishable from barley in appearance except to the extent that the sprout changes its appearance. It has somewhat different properties, but it is still capable of the same food uses; it is still capable of being used as seed, and it has not in any way lost its physical identity. The evidence is overwhelmingly to the effect that the barley kernel, although subjected to the malting process, still is to be classified as grain. It was the opinion of the experts that this classification would persist until some major structure of the grain has been removed or the kernel torn asunder so that it no longer exists as a botanical entity. It follows that the judgments of the trial court are correct and should be affirmed.
By the Court. — Judgments affirmed. *126