*1 рerson- it be liable for sug- expected that would principal opinion assistance than the damage. principal opinion The agree injury rule al gests; I that it does not it reason sovereign immunity directly. gives a bonanza had no question of Bi-State shows, however, recog- expect. is that we What it to kind nized Bi-State was new of apparently consid- opinion The principal existing readily fitted con- agency, not into basic task is to determine ers that our cepts “political subdivision.” Inas- “public entity.” This Bi-State is a whether operations distinctly much as its bus conceptualistic. approach purely The proprietary, holding that it had no sover- is not term of art. phrase, “public entity” eign immunity entirely line would jurispru- It to this area of was introduced operations prevailing caselaw. Its
with
which neither defines
dence
§
to
areas and
well
were confined
urban
sovereign
enlarges
perimeters
nor
applicable
proprietary
law
established
leaving
immunity,
to the courts the tradi-
municipal corporations
ap-
operations of
determining
tional
the common
function
Louis Transit
opinion
St.
propriate. The
perfectly capable
courts
law. Our
many
in so
words that Bi-State does
states
is,
deciding
or was at
what
common law
“governmental
perform
not
functions.”
time,
point in
the absence of
even
that,
point
I
had the
been
See,
am confident
Lambing
authority.
decisional
argued
prior to
our courts would not
Corporation,
Southland
came as a matter of grace,
tive 537.610. § us not to ex-
Section 537.600 commands sovereign immunity.
tend the law What modifications, any
it future says is irrationalities, inequities consideration SPUDICH, Philip Robert d/b/a legislature come from the and not must Center, Columbia Billiard however, legislature, from the courts. The Appellant, guidance has us as to the Bi-State, liability status either before or REVENUE, DIRECTOR OF State after 1978. We are not forbidden to decide Missouri, Respondent. question explicitly a which seems have implicitly periоd over been decided No. 69393. prior many years to 1977. That Missouri, Supreme Court on the of common should be decided basis En Banc. principles understood in 1977 and law gov- prevailing legal in the the climate Feb. 1988. community at the time. ernmental Rehearing March Denied Jones postponed the effective date sovereign immunity because abolition expectatiоn governmental they not liable units involved that were damage. legislature passed
tort expecta- because of that same 537.600 however, expectations,
tion. Bi-State’s distinctly contrary. It fully *2 Boul,
Harry Columbia, D. appellant. for Webster, Gen., William L. Atty. Melodie Powell, Gen., Atty. A. Asst. City, Jefferson respondent. ROBERTSON, Judge. presents
This case three issues for re- view: whether a billiard center which derives substantial revenues frоm food and beverage sales is nevertheless a amusement, entertainment, or recreation within the RSMo subjecting coin-operated thus tax; (2) amusement devices therein to sales whether Section violates the Equal Protection Clause of the Fourteenth Amendment; whether billiard ta- purchased bles display possible re- pursuant sale are exempt from use tax 144.615(6), 1986. The Ad- RSMo ministrative found all Commission issues in- This case revenue laws the construction vo'lves hereby imposed A tax is levied and Mo. jurisdiction. this state. We have privilege upon all sellers of en- Const, V., 3. Affirmed. art. selling gaging tangible the business rendering
personal property taxable at retail state. rate of service I. tax shall as follows: stipulated. Robert The facts are bia (“Spudich”) is Billiard Center the sole and *3 proprietor Spudich Supply of Colum- Co., [******] Columbia, Spu- Missouri. located
both
(2)
equivalent
percent
A tax
to four
upon which
maintains billiard tables
dich
paid for
the amount
admission and seat-
may play
a fee. The amount
customers
for
to,
accommodations,
paid
or
or fees
length
on
of time
depends
fee
of the
a_
amusement,
any place
entertain-
In
plays.
addition
customer
recreаtion,
or
and
ment
games
athletic
time, Spudich sells
playing
table
billiard
events;
customers, sells
beverages
his
and
food
[Emphasis added.]
equipment
repairs
and
billiard tables
and
de-
eight coin-operated game
operates
and
10-
promulgated 12 C.S.R.
The Director
Spudich real-
From these businesses
vices.
pertinent part:
provides in
as
izes revenues
follows:
amusement, entertain-
(7)
place of
A
Percentage
Activity
ment,
is defined
or recreation
Total
Revenue
provided
Beverage
are
any facilities
Sales
where
Food and
50%
Repair
Equipment
Sales
24%
(not
amusement
including
Charges
Playing Time
Pool
23%
rule)
devices,
except as indicated
Coin-Operated Amusements
2%
amusement,
entertainment,
sports.
or
Miscellaneous
1%
amusement,
(8)
Examples
tables, Spu-
To further sales of billiard
include,
entertainment,
but
or recreation
out-of-state,
purchased
dich
billiard tables
halls,
... not limited
Spudich
no use
permit-
but remitted
tax.
tables,
playing
ted
on these
which were
[Emphasis added.]
display. According
stip-
intended for
trilogy
important
cases
to our
A
ulation “the tables are used to solicit or-
Distributing,
In Inc.
consideration.
ders,
may
particular
but one
be
if that
sold
Revenue, 529
Department
v. Missouri
inventory,
table
the last of its kind in
or
(L
R&
(Mo.1975)
S.W.2d
specific
the customer wants that
table.”
I),
question whether
this Court faced the
depreciation
took both
in-
and an
144.020.1(2)
on
imposed a sales tax
credit
“display”
vestment
on these
ta-
coin-operated games
gross receipts
on
bles
his federal
income tax returns.
“
areas,
‘restaurants,
placed in
confection
Spudich remitted
paid
sales tax on fees
stations,
hotels, motels,
bowling
bus
alleys,
time;
paid
billiard table
he
”
Id.
places.’
airports and other similar
sales tax
operate
on
coin-
gave
the ben-
The Court
“defendants
operated amusement devices
contained
the stat-
and considerеd
efit
doubt”
the billiard center. The Director assessed
ambiguous as to the
though
it were
ute
sales tax
generated
the revenues
amusement,
meaning
enter-
“a
amusement devices.
held
The Court
or recreation.”
tainment
addition,
the Director determined that
not,
normal
“within
Spudich owed use tax
billiard tables
amusement
contemplation, a
held for display
possible
salе.
entertainment, and that
are]
[such
by the installation
into such
not converted
II.
[Emphasis
of pinball machine.”
added.]
144.020.1(2)
provides
pertinent
found that Section
Id.
at 378. The Court
part:
144.020.1(2)
be
required that two elements
Auction,
present
may
before a sales tax
be levied:
Appropriate
This case not an- playing charges. from billiard time It can- Here, prior be, swered in cases. argues, we are re- primarily he therefore quired amusement, to consider place the or entertainment phrase “places amusement, since, revenues, entertain- recreation based on his the ment or recreation.” prеcisely, More primarily billiard center a restaurant. center, issue is whether a billiard Spudich’s argument persuasive which retains its derives more than half its only revenues from force to the extent that Section 144.- 020.1(2) services and sales other than permits fees taxation of fees purchase time, playing of billiard is a within primarily locations which are or ex- place аmusement, etc., clusively places within the mean- of amusement. ing 144.020.1(2). described, previously As this Court found pinball that the installation of in machine being statutory
There defini considered, a location not “within normal amusement, place tion for a we turn to contemplation,” place of amusement did familiar canons of construction for assist place not convеrt such location into a purpose ance. The statutory construc I, amusement. legislature. tion is to seek the intent of the however, recognize, S.W.2d at 378. We Metro Auto Auction v. Director Reve nue, that a activity partake location or an can Harbor, Fostaire Inc. v. a dual nature. relating Statutes strictly taxation are Revenue, Department Missouri taxing аuthority construed Goldberg v. Ad favor of the S.W.2d held that ministrative activity an can be both a source of edu- (Mo.1980). S.W.2d Words cation and used entertainment or recreation exclusive, statutes, definition, statutory mutually absent are not “[t]hese plain ordinary meaning their de in fact a or [citation omitted] ‘[I]f Metro dictionary. facility provides rived from the Auto something edifying or edu- spe taxation concerned and “Where enjoyment, entertain- in addition rational apart right, protec from amusement, place of cific federal is no less a it ment ” large tion, imperiled, the States have amusement.’ making draw classifications and leeway contemplation, it is Within normal judgment produce ing their lines beyond a billiard center is a cavil that systems of taxation.” Lehn reasonable Spudich holds his business of amusement. Co., v. Lake Shore Auto Parts hausen center; public it is as a billiard out to the 356, 359, 1003, 35 L.Ed. 93 S.Ct. U.S. playing equipment which to billiard access (1973). 2d 351 patrons. provision attracts course, makes no patrons and the to those of food and drink devices; nor does mention of equipment and service billiard of amusement. define statutе with and incidental both consistent said, under previously taxation As have billiard center. fact of a 144.040.1(2) is on two ele- based from the sale of food and that revenues in or payment ments: sale of drink revenues from the exceed amusement, entertainment place of does not vitiate billiard table time from The statute thus excludes recreation. center’s character as a coin-operated devices taxation those amusement. operated which are not which are ordinary plain, mean- Based both places of amusement. statutory language and of the relevant location need not This case decides that a interpreta- consistent with administrative *5 exclusively place of amusement to language, tions of that we conclude that subject paid fees of coin- the Spudich’s center operated amusement devices therein to amusement within the of Section II, supra. sales tax. See discussion at In 144.020.1(2). pro- We thus hold that the I, 375, Distributing this 529 S.W.2d coin-operated ceeds of amusement devices is not Court held that a location converted Spudich’s containеd within Billiard Center “by into the installa amusement 144.020.1(2). are taxable under Section tion of pinball (Emphasis add machine.” Bally's Family ed). L eMan' s Fun Cen III. ters, Revenue, Inc. v. Director S.W. 745 (Mo. Having paid operate 2d we held that a found fees to 683 banc Spudich’s coin-operated exclusively used coin- amusement devices location 144.020.1(2), operated under Section we now amusement devices taxable 144.020.1(2). protection challenge his Im equal consider to amusement under Section argues plicit interpretations of Spudich the statute. Sec that Court’s I, Distributing 144.020.1(2) see L R & against places of discriminates II, Bally’s L & taxing R by operate LeMan's amusement fees Centers, Inc., Har Fun Fostaire Family coin-operated amusement devices bor, Inc., holding, con today’s is the places, failing coin-operated while to tax point,1 cept at the installation amusement devices not located in some coin-operated number amusement. He claims that there a sufficient is suffi any location basis for the amusement devices rational distinction. is, think, bring argument for amusement protection im cient to the tax This potent. the sales law. therein within attempt location manner in which the make in this case to draw a ment include the We public, line of demarcation between the the amount well-defined itself out to holds subject activities, to sedes tax and those by amusement generated amusement revenue activity is so locations in which amusement insignificant activities pervasiveness of amusement the escape Each сase taxation. own not ex- This list is location. conducted particular must be considered its facts. course, may, be con- Other factors haustive. important for in the in- Factors quiry consideration dictate. sidered as circumstances in a of amuse- whether a location 144.020.1(2) ers, wholesalers, solelyÍ analyses jobbers Court’s ! course, legislative business, thus find a intent to treаt resale regular those locations which amusement activi more than a de minimus comprise ties [Emphasis added.] portion of the business activities of the stipulation by parties entered location as of amusement for sales provided that “the tables are used tó solicit purposes. orders, may particu- but one be sold if that light, Seen the distinction in taxa- inventory, lаr kind in table the last of its tion which decries is attributable specific or the customer wants that table.” legislature’s recognition expenses collecting burdens and rule; exemptions Taxation is the tax from locations in which the fees collect- exception. from taxation are the Tax ex ed for amusement devices are are, therefore, emption stаtutes construed minimal, significantly outweigh the finan- Missouri strictly against resulting cial benefits to the state from an Scientology Church Tax State Com application across-the-board of the sales mission, (Mo. 560 S.W.2d banc tax to all amusement devices. Franco, 1977); King v. 653 S.W.2d It is adopt reasonable for the state to (Mo.App.1983). The burden is on the system efficiently of taxation which hus- taxpayеr prove property that his falls resources, bands its financial if even City exempted an St. within class. system escape allows some to taxation alto- Louis v. Tax State S.W. gether. may 2d Courts analogous is thus exemptions not read into a tax that do statutes which base tax classifications on clearly appear. State ex rel. Conservation quantity. repeatedly This has Court sus- LePage, Commission v. 566 S.W.2d constitutionality
tained the of such reason- 1978). Exemptions are thus against equal protection able classifications they clearly allowed to the extent Bopp Spainhower, attacks. expressly language authorized Riehn, Crane v. of the statute. *6 Associated S.W.2d 525 Industries v. State Tax language We find the S.W.2d 916 144.615(6) unambiguous. clear The ex system impоsed The of taxation in Sec- emption pur is available for items reasonable; “solely stipulation chased for resale.” The protection point violation exists. The indicates in that the billiard tables denied. purchased primarily display items tables; to solicit orders for resale
IV. and, purpose according incidental to this Finally, we consider use stipulatiоn, occurs under unusual claim. pro- Section RSMo circumstances. The Administrative Hear pertinent part: vides in correctly Commission decided 144.615(6) exemption imposed privilege A tax is not avail for the stipulated storing, using consuming able under the facts. within this tangible personal That decision is affirmed. state article of property equivalent in ... an amount percentage imposed on the sales V. price in the sales tax law section 144.- The decision of the Administrative Hear- 020 ing Commission is affirmed. 144.615(6), 1986, exempts RSMo
from the use tax BILLINGS, C.J., BLACKMAR,
Tangible personal property by pro- held cessors, retailers, HIGGINS, JJ., importers, manufactur- RENDLEN and concur. DONNELLY, J., dissents. J.,
WELLIVER, separate dissents
opinion filed.
WELLIVER, dissenting. Judge, adopt my respectfully
I dissent and case, my filed in dissent
dissent this Centers, Fun Bally’s Family Leman’s Barbieri, Barbieri, Kan- Roger Vito C. J. Revenue, Inc. Director of City, appellant. sas 1988), handed down cоntem- poraneously herewith. Webster, Gen., Atty. Richard L. William Atty. Gen., City, Wieler, Jefferson
L. Asst. respondent. ROBERTSON, Justice. is whether fees
The issue case paid for subject games places of amusement LEMAN’S FAMILY FUN
BALLY’S tax under Section INC., CENTERS, Appellant, Fun Bally’s Family LeMan’s RSMo 1986. Center, (“Bally”) challenges Di Inc. of sales of Revenue’s assessment rector REVENUE, OF State of DIRECTOR proceeds its tax on the Missouri, Respоndent. games. Administrative Com No. 69373. upheld mission the Director’s assessment. Because case the construction this involves Missouri, Supreme Court of state, we have laws revenue En Banc. V., art. 3. Af jurisdiction. Mo. Const. Feb. 1988. firmed. Rehearing As on Denial Modified March I. stipulated. Bally operates facts
eight shopping malls or fun centers throughout “strip” Mis- shopping centers *7 occupies аp- such fun center souri. Each square geographi- proximately 4000 feet space each cally separated location. Each contains location games, majority of video- more games. Each houses type location games. No admission forty than charged entry fun center. into a Bally’s Director assessed coin-op- proceeds from erated devices. Hearing Commission
The Administrative Bally’s fun centers found that upheld The Commission of amusement. Bally sales tax assessment. the Director’s in this Court. sought review