To hold that the Legislature intended to impose a tax upon one employed as an agent to sell the products of his employer and under contract to devote all his time and efforts in promoting the sale of such products, and who is legally obliged at all times to work for the interests of his employer exclusively in the same manner and to the same extent as salaried employees are required to do, and leave untaxed the salaried employee engaged in identical activities, would be to impute to the Legislature a failure to heed the constitutional provision which affords equal protection of the laws to our citizens, unless there is something in the method of compensation on a commission basis, as distinguished from a specific fixed periodical allowance as a salary, which would afford a reasonable basis of classification for the purposes of taxation. I am unable to comprehend how the nature of the employment is in any wise affected by the method of computing the compensation for the services rendered, whether it be called commission, emoluments, wages, hire, or salary.
Salary is computed by time; recompense on the commission basis is computed on the basis of results. But they are essentially the same. The difference in the method of payment may make it appropriate to use one word or the other, but essentially they are synonymous as being reward or recompense for services performed.
"The word `commission' has no technical meaning, but is usually employed to mean the compensation to an agent, broker, or person who handles the affairs of others in payment for their services." Words and Phrases, Fourth Series, p. 452.
"Lexicographers and some authorities class `salary' and `wages' as synonymous." 4 Words and Phrases, Second Series, p. 1221.
"Commissions paid a traveling salesman for his services are `wages,' within the meaning of Bankr.Act." 4 Words and Phrases, Second Series, p. 1220.
A contract employing a salesman which stipulates for a commission on sales has been held to be a contract for the payment of "wages." 4 Words and Phrases, Second Series, p. 1220.
In W.H. White Son v. Ballard County Bank (Ky.) 117 S.W. 294,296, it was held against an alleged principal, where the issue was agency of one who contracted the debt sued for, that an instruction to find for plaintiff if the alleged agent worked for defendants on a "commission or salary" is not misleading because of use of the word "salary," though no witness used it in his evidence, as the word "salary" was used as a synonym of "commission." The court said: "The word `salary' seems to have been used synonymous with `commission,' and to the average man they both convey the idea of compensation, and the jury no doubt thoroughly understood and were in no wise misled by the use of this word in the instruction." *Page 410
I am not persuaded that the Legislature intended to tax the earnings of a laborer computed on a commission basis and leave untaxed the earnings of a laborer doing the same kind of work and who is recompensed in money computed on the time basis solely. I can see no reasonable basis upon which one could be taxed and another exempted, each doing the same kind of work. In my opinion, if such were the legislative intent it would offend the uniformity clause of the Constitution, and it is to be presumed that no such offense was intended. These considerations are merely reasons additional to those employed by Mr. Justice ZINN, with which I am satisfied. Therefore, I concur.