*1 Neeleyville, was abducted the bank
robbery, forced into the car driven to a
remote rural area of Butler where County lengthy
she was shot three times. The ride terrifying
must have been increasingly jury,
ominous to the helpless victim.
however, punishment assessed at life with- parole
out for fifty years, not death.
In discharging duty our to see that
sentence of death is not disproportionate cases, penalty imposed in similar we
have stated “Our concern is that there be
‘even-handed, impo- rational and consistent of death
sition
sentences under law’. Jurek
Texas,
428 U.S.
[96
(1976)”,
er,
I fail to present see where the case has been
distinguished in a principled meaningful
way many from the cases above where the worse, just
homicide was as bad or yet
jury parole fifty elected life without as
years punishment, not death. If we for reason,
whatever do not make the distinc- (and
tion I do not made believe can be
here), then I do not believe the death penal-
ty particular can stand in the case under
consideration. I would therefore set aside
the death sentence and remand for sentenc-
ing. KING, Revenue,
Richard A. Director of Missouri, Appellant, COMPANY,
LACLEDE GAS et
al., Respondents.
No. 64265. Missouri,
Supreme Court of
En Banc.
March 1983. 26, 1983.
Concurring Opinion April
Rehearing April Denied Ashcroft, Gen., Melodie A. Atty.
John Gen., City, Jefferson Powell, Atty. Asst. appellant. *2 Bannes,
Lawrence J. Louis, St. for re- der the consolidated holdings of State spondents. rel. Kansas Power and 75,Mo.
BILLINGS, Judge. 1938) Kansas City and Co. Appeal by Department of Revenue the use S.W.2d from an order of the Administrative Hear- electricity of the was non-commercial and ing Commission granting tax exemption subject not to the tax. on the Relying to Laclede Gas and thereby reversing the of in definition “commercial” set out those decision of the Director to assess sales tax cases the Commission chose to characterize electricity used by taxpayer in its underground storage as inter- facilities public utility jurisdic- business. Exclusive and, thus, nal operations non-commercial tion is in Const., this V, Court. Mo. Art. phases of Laclede’s business. 3. We reverse the of the decision Admin- 144.020, istrative Section RSMo 1978 states: Hearing Commission. imposed tax is hereby 1. A levied and The relevant stipulated. facts have been upon privilege engag- all sellers for the of Taxpayer Laclede Gas operates under- tangible ing selling in business of ground storage field in northern St. Louis personal property or taxable rendering County and County. of St. Charles at in service retail this state. The rate of The field is used to gas store natural during tax be as shall follows: the slack summer season for use during (3) equivalent per- a tax ... to three winter months peak of demand. Laclede (3%) paid cent of the basic rate or also constructed an cavern underground for on all or elec- charged electricity sales of storage gallons of thirty liq- million of current, gas, trical water and natural or propane uid vaporized which can be and artificial to domestic or in- commercial added to its distribution when system cus- consumers, dustrial ...2 outstrips tomer demand pipe- the available supply. line 10-3.184(6) Almost half statu- interprets of Laclede’s cus- this CSR requirements tomer tory severe language: cold weather must be met from these facilities. gas of electricity, Sales water or Thus, the storage gas of natural and stor- regulated or utilities common licensed or age and vaporization of liquid propane are compa- such as water pipeline carriers essential for continuous of service Laclede’s nies, telephone companies and telegraph customers. subject are tax and railroads to the sales it is that the demonstrably unless shown In 1979 taxpayer requested exemptions electricity, gas water or is not used from sales tax on in used (Em- purposes. commercial or industrial of operation grounds these on the facilities added) phasis that in electricity was used a non-com- mercial, non-domestic, only non-industrial The issue here is the statuto manner;1 144.020, and under of the term “commercial” ry interpretation deci Law, exempt agency taxa- Administrative the Sales Tax was 144.020. Department applica- agency’s interpretation tion. The on the denied sions based tion, matters for the finding exemptions independent that none of of law are 1(3) reviewing Daily set forth in court. applied. judgment subd. James, Taxpayer appealed Administrative Record We are Hearing Commission that un- mindful which ruled hourly changes application exemptions requested gas to meet in customer five needed demands; protec- telemetering operation: underground storage and cathodic areas of of tion; gas; storage gas liquid propane “other”. natural of vaporization thereof; stations, which holder strategic points in the are located at distribu- contains amendment to this statute 2. The system storage term language. tion and allow for short identical
H5
primary objective
a common sense
statutory
narrowly
preclude
construc-
as to
tion is to ascertain
legisla-
the intent of the
of this tax-
understanding
operations
used,
ture
language
give
from the
and to
payer.
effect to that intent if possible.
doing
In
so
governmental regula-
In the context
we are to consider the words used in the
tion,
that:
it is well established
*3
statute
plain
ordinary meaning.
in their
and
Commerce,
simplest signification
in its
Kraus,
684,
530 S.W.2d
685
the
goods;
but in
exchange
means an
Tax statutes are to
strictly
be
labor, transpor-
society,
advancement of
construed in favor
taxpayer. Staley
of the
care,
me-
tation,
and various
intelligence,
Revenue,
v. Missouri Director of
623 S.W.2d
commodities,
exchange,
diums of
become
(Mo.1981). However,
the words of stat-
commerce;
subject,
and enter
into
including revenue
be in-
acts —should
utes —
terpreted
vehicle,
various
agent,
and their
possible
ordinary,
where
in their
objects
of com-
operations, become
everyday senses. Hanover Bank v. Com-
added)
regulation,
(emphasis
mercial
Revenue,
672,
missioner of Internal
369 U.S.
Co.,
al.,
et
Lorenzetti v. American Trust
687,
1080, 1088,
82 S.Ct.
chose to read it as pertaining only taxpayer Laclede ing granting Commission buying, selling exchanging or of commodi- from sales tax exemption Gas ties. The Court reasoned that to broaden 1(3), pursuant to subd. meaning everything pertain- § include 1978 is reversed. ing to commerce companion could make the statutory superfluous, term “industrial” HIGGINS, RENDLEN, C.J., and GUNN
thereby defeating statutory the maxim of BLACKMAR, JJ., concur. give every construction to word in a statute meaning a if possible. State ex rel. Kansas DONNELLY, JJ., dis- WELLIVER Co. opinions sent in filed. separate at 515.3 WELLIVER, dissenting. Judge, present case we do not construe Judge expressed term I concur in the views broadly “commercial” so as blur to under- only its distinctions. we the term so dissent. I write Donnelly’s Nor can use services, gas (natural artificial), precursor to domestic The statute in statute, present imposed a tax on “sales of commercialor industrial consumers.” current, water, electricity or electrical sewer score how extraordinary is principal 144.020(1)(3), 736, § 1971-1972 Mo.Laws opinion’s departure 737; 1, 1965, 1, established law. Act of July sec. 144.- § 261, 262; 020(1)(3), 1965 Mo.Laws Act of Although the principal opinion purports 25, 1963, 1, Apr. 144.020(1)(3), sec. § to give effect to the legisla intent of the 196; 195, July Mo.Laws Act of sec. ture, it wholly ignores the fundamental rule 1, 11408(c), (Vol. I) 546, 1947 Mo.Laws § construction, adhered to in this state for 547; 29,1946, 1, 11408(c), Act of Mar. sec. more than a century, that Leg “where the 1869; 1865, 27, Act of July Mo.Laws islature, after a statute has received a set 1, 1012, 11408(c), sec. 1943 Mo.Laws judicial construction, tled reenacts or car 1016; A, Aug. Act of sec. ries forward without change, or reincorpo 11408(c), 698, 702; 1941 Mo.Laws Act of rates the exact language theretofore con A, July 2(c), 1939 sec. Mo.Laws strued, it is presumed to be that it knew of repeated 860. Because of the reenact adopted judicial previ construction *4 language ments of very long for so ously given to the Roy statute.” F. Stamm following it, this Court’s construction of Electric Co. v. Co., Hamilton-Brown Shoe part construction has ... become a “[t]he 1178, 350 Mo. 1184, 580, 171 S.W.2d 583 parte Carey, of the statute itself.” Ex 306 (banc 1943). also Grainger, See Messick v. 287, 294, 806, (banc 1924). Mo. 267 808 S.W. 1227, 1232, 356 Mo. 739, 205 S.W.2d 741-42 Railroad, also Murphy See v. Wabash 228 (1947); Jacoby v. Missouri Valley Drainage 56, 86, 481, (banc 1910). Mo. 128 487 S.W. District, 818, 833, 349 930, Mo. 163 S.W.2d justification ignoring There is long no (banc 1942); 939 ex State rel. Steed v. standing legislative history by overruling Nolte, 1103, 1108, 345 Mo. 1016, 138 S.W.2d City Smith and Kansas Public Service Co. (banc 1940); 1019 Sears, State ex rel. Roe Any change thought necessary should be Haid, 701, buck & 705, Co. v. 332 Mo. 60 effected by legislature by and not this 41, (1933); S.W.2d 43 State ex inf. Gentry Court. Meeker, 719, 723, 411, v. 317 Mo. 296 S.W. (banc 1927); Easton v. Courtwright, DONNELLY, Judge, dissenting. 27, (1884); 84 Mo. Morgan 34 Handlin v. 114, County, (1874). 57 Mo. 116 rejects interpre- The principal opinion forty-five years following this Court’s deci tation of “commercial” in the sales the term sions in City statute, rel. Kansas Power & tax 1978 and its RSMo § Light Smith, 75, Co. v. 342 Mo. 111 predecessors, S.W.2d used since Kan- that has been (banc 1938), 513 and Kansas Power City & sas Power 342 City & Co., Co. v. Kansas City 75, (banc 1938) Public its Service Mo. 111 513 S.W.2d 45, 342 Mo. 1938), case, Power & companion City Kansas which construed statutes identical in rele Light Co. v. Kansas vant respects 144.020(1)(3), 1978, 45, to (banc RSMo In § 111 S.W.2d legislature cases, has reenacted the contested read “commercial” those this Court language verbatim a total of to fall narrowly, permitting ten times.1 some activities 31, 1979, 1, July 144.020(1)(3), Act of see. within avoid the sales tax. the cracks and § 331, 334; 1, overruling 1979 Mo.Laws these Aug. given Act of The reason now 1975, 1, 144.020(1)(3), sec. under- 1975-1976 Mo. cases is that a “common sense 204; 202, 26, 1972, 1, May taxpayer” Laws Act of sec. this standing operations of 155, language 144.020(1)(3), (Ex.Sess.) 2A(b), 1. The contested in § 1933-1934 Mo.Laws 1978, regards electricity Although meaning the sale differs with the of to “domestic, comma, that dif commercial or industrial consum inclusion or exclusion of the language purposes ers.” this case. That is identical to that in the is immaterial for ference 5, 1935, 2(c), In Smith the Court considered Act the 1934 act enactment. of June slightly consistently re it 1935 Mo.Laws 415. It differs included the comma when enactment, In original statutory language. that in which used ferred Court, language the basis Public Service Co. “domestic commercial or industri following act to mean the al the 1935 consumers” without the comma construed the word as the 1934 act. “domestic.” Act of Jan. same H7 they conflict. To me the cases indicates that the use of here was extent that integral gas is clearly distinguishable. of the commercial activities Natural are and, taxpayer. furnishing taxpayer’s product, customers, is en- taxpayer gas to its view, In my important there are two rea- selling ... of commodi- gaged in the “... continuing sons for with the more narrow integral part is an of a storage ties.” The First, interpretation. the rule that tax furnished operation, power commercial against laws are to be construed strictly is furnished for a obligation to fulfill this taxing authority, Canteen v. Corp. Gold- use, the fur- fully “commercial” as much as berg, 1980), light and air condition nishing power and where there is a as to reasonable doubt sacks of flour are warehouse in which meaning statute, of a revenue the doubt properly indi- stored would be. Court taxed, Sands, is resolved in favor of those C. unduly extend- cates that is not be Construction, Statutory Sutherland 66.01 written, the statute as it is applies ed and (4th 1974); Lines; at 179 ed. Inc. United Air ordinary in their sense. using words Commission, v. State Tax is such a settled rule that it has been called a pre- “fundamental
cept”. Stephens
Glander,
151 Ohio St.
(1949),
Sands,
id.;
Gould,
see also
Gould
U.S.
(1917).
conflicts with other rules of *5 prevail. Second, should from the time of RURAL PRESERVA- CITIZENS FOR predecessors TION, INC., corpora- profit a not for 1978 and its 1979 amendment have re- tion, Bunch, Mary Leon Clarence unchanged. mained legislature Had the in- Rohan, Plaintiffs-Appellants, Ann tended a different meaning of “commer- courts, cial” from given that it it by would not have used the same language. Jr., ROBINETT, Chairman, Bar- James L.
Where legislature, after a statute has ry Wilkinson, Carr, Garnett, Hugh Jess judicial received settled by construction Baalmann, Howell, and Richard John resort, court of last re-enacts it or it carries Pirtle, Members, Tom Air Conservation over change without or reincorporates the Commission, Department of Natural Re- construed, exact language theretofore Missouri, sources, Defendants- State of presumed must be legislature that the knew Respondents, of and adopted such construction. rel. Smith v. Atterbury, 364 Mo. (banc 1954). Flags Corporation, Materials Six expression Intervenor-Defendant-Respondent. absence of clear by of intent legislature otherwise, this Court should re- WD No. 32571. tain the interpretation of “commer- Appeals, Missouri Court cial” strictly construing the statute in favor Western District. taxpayer.
I respectfully dissent. 16, 1982. Nov. Jan. As Modified
BLACKMAR, Judge, concurring. Court does not overrule Kansas case,
the companion simply cautions they are not to be followed