This is an appeal from the judgment of the District Court of Laramie County, sustaining an additional assessment made by the State Board of Equalization on September 23, 1942, in the amount of $3661.91, against the Walgreen Company, a drug company, doing a retail business in this State, appellant herein, for use and sales taxes, and penalties and interest thereon. The point of the use tax is not in controversy. The case was submitted to the Court upon stipulation of facts from which it appears that from January 1, 1939 to July 31, 1942, the period in controversy herein, the appellant made sales in amounts of 25c or more, totalling $672,428.97, on which it collected sales taxes in the sum of $14,871.92. The appellant, during the same time, made sales to customers in amounts of 24c or less, totalling *Page 313 $286,809.30, upon which no sales taxes were collected from the customers by the appellant. The question herein is as to the amount due for taxes on these items so sold. The Court, confirming the order of the State Board of Equalization, held that the taxes due are the total amount of taxes collected as above mentioned in the sum of $14,871.92 and 1% on $286,809.30, on items sold for 24c or less, namely a tax of $2,868.09, making a total of $17,740.00. The appellant, not contending that it does not owe the item of $2,868.09 on items sold for 25c or less, claims that it should not in addition thereto pay the total amount of $14,871.92 collected on items sold for 25c or more, but should pay, as such addition, only 2% on $672,428.97, the total sales on which a tax was collected; 2% of this amount would make a tax of $13,448.58. The difference between $14,871.92 and $13,448.58 is the sum of $1423.34, and is the amount in controversy herein. It is the amount collected in excess of 2% on items sold for 25c or more, and appellant claims that this so-called excess amount belongs to it or can be used to offset the tax on items sold for 24c or less, and that the penalties and interest should, of course, be adjusted accordingly. The State Board of Equalization, on the other hand, claims that the foregoing so-called excess of $1423.34 all belongs to the State; that appellant also owes 1% tax on $286,809.30, on which no tax was collected from the consumers. In other words, the claim is that this 1% tax has nothing whatever to do with the sales tax, but is an independent tax assessed against the sales of less than 25c, and that the state owns the so-called excess on sales of over 25c, and cannot be used to offset the tax levy of 1%. The principle involved in this case is vital, goes to the very foundation of the nature of the sales tax, and even deeper, since it involves the question as to what independent taxes, discriminatory in their nature, as hereinafter pointed out, can be levied. *Page 314
The sales tax was imposed by Chapter 102, Session Laws of 1937, and Sec. 4 of that Act provides in part that there shall be collected and paid:
"(a) An excise tax upon every retail sale of tangible personal property made within the State of Wyoming equivalent to two percent. (2%), except as provided in sub-section (e) of this Act, of the purchase price paid or charged", etc.
Sub-section (e) of the Act provides:
"The State Board of Equalization shall provide uniform methods and schedules for adding the tax or the average equivalent thereof to the selling price, and when added such tax shall constitute a part of such price or charge, shall be a debt from consumer or user to retailer until paid, and shall be recoverable at law in the same manner as other debts, and it shall be the duty of said Board to formulate and promulgate appropriate rules and regulations to effectuate the purpose of this Act; provided, that the tax on all sales of twenty-four (24c) cents or less shall be one percent, and provided further, that the purchaser, consumer and user of any single unit purchase of twenty-four (24c) cents or less, shall not be required to pay the tax provided herein and provided further that the tax of one percent herein imposed on all purchases of twenty-four (24c) cents or less shall be assumed and paid for by the vendor who shall keep a detailed segregated record of all such sales. Any vendor who shall so elect may, in lieu of keeping such detailed segregated record, pay a tax of two percent. on his total sales upon which the tax provided herein is imposed".
It is as plain as words can make it that under the foregoing provisions a retailer who elects to keep a separate account of the items of sale of 24c and under, as appellant did, is liable for a tax of 2% of the sales of 25c and more, and for a tax of 1% on the minor items sold. It does not say that he is liable for more than that. It mentions no excess; it does not provide that if a retailer collects more than 2% on the larger items he *Page 315 must pay that excess to the State. It was, in the opinion of the writer, if lawfully collected, evidently intended as hereafter shown to offset, as far as it would the tax of 1%, which is to be paid by the retailer on items sold for 24c or less. We have no basis before us to say that the tax was not honestly collected. It is at least possible under the brackets of the sales tax fixed by the State Board of Equalization that the money was collected honestly. It depends entirely on the number of sales made within the brackets in which more than 2% is collected. Suppose, for instance, that one half of the approximately $672,000 or $336,000 sales above mentioned, were made for 30c each. That would make 3 and 1/3 cents for every dollar of the $336,000. The total tax then that would be lawfully collectible on these sales would be $11,200.00. If the half of these sales — $336,000 — were each made at 75c that would make 2 and 2/3 cent for each dollar of the sales or $8,960.00. Thus there would have been lawfully collectible on the total sales of $672,000 a tax of $20,160.00, instead of the tax of $14,871.92 actually collected. If half of the sales had been made at 40c each, appellant would have been able to lawfully collect a total tax of $17,360.00, or sufficient to pay all of its taxes. Similar results may be arrived at by taking other figures. While these figures may seem to lead us far afield from the questions involved herein, they throw, in fact, light on what hereafter will be stated. The actual amount collected fell short by some $1400 of what the legislature intended should have been collected, as hereafter more fully shown. That was due to the amounts of the individual sales and the brackets fixed by the State Board of Equalization. As a matter of fact, the legislature contemplated that the merchant might collect more than the total of his taxes as clearly appears from the provisions of section 5 of the sales tax statute hereinafter more fully considered. *Page 316
I. NATURE AND CHARACTERISTICS OF OUR SALES TAX.
I shall return to the direct statutory provisions bearing on the foregoing point — as to whether the so-called excess belongs to the State — and discuss it more fully at the end of this opinion. At present, in view of the fact that it is claimed that the 1% tax above mentioned is an independent tax and that it has nothing to do with the sales taxes to be ultimately paid by the consumer, we should, in order to get a comprehensive view of the subject, and to understand the situation once for all, to examine that point, and that involves the nature and characteristics of our sales tax. Was it the intention of the legislature that onthe average the whole of the tax was ultimately to be borne by the consumers, or was it not? The point has a direct bearing on the question herein involved, for if the intention was as mentioned, it follows, of course, that if a so-called excess was collected on the sales which bear a tax of 2%, that amount may, so far as it will, be applied on the 1% tax, with the exception hereinafter mentioned, which does not apply in this case. And in that case there is no merit in the claim of the State. It has always been my understanding, and it is now, that the legislature intended that the sales taxes should all be ultimately borne by the consumers, so far as possible. I believe that the various provisions of our statutes unerringly point to that conclusion.The gasoline tax in this State has always been ultimately paid by the consumer. Signs have been prominently displayed at every gasoline station what the amount of the tax is. The payment thereof by the consumer was inferentially at least sanctioned by the legislature of this State since 1925. See Sec. 115-1109, Rev. St. 1931. Thus a policy that the consumer should ultimately bear the burden of a sales tax was inaugurated *Page 317 in this State more than twenty years ago. That is the policy in connection with sales taxes in all the states which have a sales tax similar to our own. That is true at least in a number of states, as in Colorado, Utah, California, Alabama, Arkansas, Iowa, Ohio, North Carolina and West Virginia. Notable evidence thereof is the present sales tax law of Colorado, which continued that policy after a number of years of experience, in the amendment adopted as late as 1945. Under it no tax is now paid or collected on sales under 19c. In some states tokens are used, so as not to make the tax too burdensome on the consumer, and at the same time permit the merchant to recoup the tax from the former. Our sales tax was to a large extent taken from Utah, pursuant to the recommendation of the then Governor in his message to the legislature in 1935. But we did not adopt all the features thereof. Instead of using tokens, a different system was adopted, but which on the whole was unquestionably intended to arrive at the same result. Sec. 4 (e), Chapter 74, Session Laws of 1935, the predecessor of the Sales Tax Act of 1937, provided that "the State Board of Equalization shall provide uniform methods and schedules for adding the tax or the average equivalent thereof to the selling price", etc. (Italics supplied). Sec. 4 (e) of the Sales Tax Act of 1937, already quoted, contains the identical language. These provisions cannot be ignored, and must be borne in mind throughout. According to the rules and regulations of the State Board of Equalization no tax is paid by the consumer if his purchase is 24c or less. It is 1c if the purchase is between 25c and 74c, and 2c if between 74c and $1.25, and 2% if the purchase is above that amount. Thus the consumer sometimes pays more than 2%; sometimes less. The average is sought to be 2% on all purchases except as specifically otherwise provided in the law. The nature of these provisions is the same. In one case — in connection with *Page 318 sales of 24c and under — the legislature itself made specific provisions; it left other cases to be provided for by the State Board of Equalization, but all were aimed at one definite goal, to reach an average so that the tax should ultimately be fastened upon the consumer, and if the proper average in some cases is not attained that is either the intention or the fault or a miscalculation on the part of the legislature or the State Board of Equalization, or both. There is no sound reason for characterizing the 1% tax as of a different nature than the 2% tax. It, through the method of arriving at an average, was intended to be ultimately paid by the consumer the same as the other. Take for instance, sales between 50c and 74c, the tax paid by the consumer is less than 2%; on sales of 74c the tax paid by the consumer is 1.48%. Like facts are true of sales from $1.00 to $1.25. But the retailer is compelled to assume and pay the difference in exactly the same manner as he is compelled to assume and pay the 1% tax mentioned in the law. Neither is an independent tax. The difference is one of degree, not of kind. In one case the legislature has definitely fixed the amount; in the other it has done so through regulations made by the State Board of Equalization.
Contemporary construction makes the foregoing perfectly plain. Under the Sales Tax Law of 1935, Sec. 4, the consumers did not pay a tax on sales of 13c and under, but the merchant paid a tax of 2% thereon as well as on other sales. The State Board of Equalization, as then composed, in its Ninth Biennial Report, duly published, stated as follows:
"Some complaint has been heard because sales tax tokens were not issued to provide for payment of the tax on purchases under $1.00. As the law did not directly provide for the issuance of tokens, and because sales under 13c were exempted, and the rate of the tax being two percent, the Board has attempted — Section *Page 319 4 (e) — to provide `uniform methods and schedules for adding the tax or the average equivalent thereof to the selling price,' by issuing its bracket for collection of the tax at the rate of one cent on sales of 14c to 64c, and two cents on sales from 65c to $1.25, with the rate of two percent on all sales above $1.25, governed by major fractions of 1/2 cent or over. Collectionsindicate that an average rate of two percent is being paid whenall sales are taken into consideration. If token collection is desired, the legislature should so provide. In this connection, it is estimated that token costs will range from $5,000 to $10,000, the general method of distribution being to issue same at face value to the retailer who, in turn, issues them to the customer". (Italics supplied).
The Honorable Leslie A. Miller, then Governor of Wyoming, in his message to the legislature in 1937, stated as follows:
"Some complaint has been heard because, under our system, sales tax collections on purchases under $1.00 amount to more than 2% and the use of tokens has been advocated. Our law did not provide for the issuance of tokens. Taking notice of the provisions whereby sales under 13c were exempted and the rate of tax being fixed at 2%, the Board of Equalization has attempted, to use their words, to provide `uniform methods and schedules for adding the tax, or the average equivalent thereof, to the selling price'. By providing brackets for collection of the tax at the rate of 1c on sales of 14c to 64 c, 2c on sales from 65c to $1.25 and a rate of 2% on all sales above $1.25, collections indicate that an average rate of 2% is being paid when all sales aretaken into consideration. The use of tokens is a very great annoyance to clerks and merchants, but if a flat payment of 2% on every sale is desired, the legislature should provide for a form of tokens. For your information, it is estimated that token costs will range from $5,000 to $10,000, the general method of distribution being to issue same at face value to the retailer who in turn issues them to the customer". (Italics supplied). Thus these men, eminently qualified to speak on the subject, and interested at that time perhaps more than *Page 320 any one else, did not believe that the tax on sales under 14c was an independent tax. They clearly thought that on the average the whole of the tax was being borne ultimately by the consumers. And they evidently thought that proper, and in accordance with the intention of the legislature, or they would have expressed themselves differently. That was in connection with the 1935 law. The arrangement in the 1937 law is no different in principle. It moved up the bracket of nontaxable sales to the consumer from 13c to 24c, and then assessed a tax of 1% against the merchant on sales under 24c. The reason for the 1% tax is perfectly clear. If, as stated by the Governor in the message aforesaid, and by the State Board of Equalization in its report above mentioned, the merchant collected approximately 2% on all of the sales, then, moving the bracket of nontaxable sales to the consumer from 13c to 14c, might not enable the merchant to collect all of the taxes from the consumer; to raise it up to 15c the likelihood of that would be greater; to raise it up to 16c the likelihood would still be greater, and raising it up to 24c would make it practically a certainty that the merchant would not be able to collect all of his taxes from the consumer, and in order to avoid that fact, the legislature, instead of assessing 2% on these smaller sales assessed a levy of only 1%, so as to make it likely that under that arrangement, and the bracket fixed by the State Board of Equalization, all of the taxes would, on the average, ultimately be paid by the consumer.
Further proof, and rather persuasive, that the consumers are intended on the average to pay the sales taxes, and that the 1% tax above mentioned is not an independent tax on the retailer, wholly disassociated from the tax to be ultimately paid by the consumer, is furnished by the law on use taxes. The use tax is complementary of the sales tax. The statutes providing for both taxes were passed at the same session of the *Page 321 legislature and should be construed together. Winter vs. Barrett,352 Ill. 441, 186 N.E. 113, 89 A.L.R. 1398. It would not make good sense to make the consumer pay all of the use taxes and hold that a contrary intention is shown in connection with the sales taxes, when the laws as stated before, levying both taxes were passed by the same session of the legislature. There is scarcely any doubt that the whole of the use tax is paid by the consumer, as clearly appears from Sec. 3 and 6 of the Use Tax Act, Chapter 118, Session Laws of 1937. An additional proof of what has been said and equally persuasive is found in the provision in Sec. 5 of the Act — again referred to hereafter — which in fact dissipates whatever doubt there might be on the subject. It contemplates that notwithstanding the fact that the consumer does not pay anything on the smaller sales — true under the 1935 and 1937 laws — the merchant may nevertheless be able to collectmore than 2% of all his sales; that is to say, more than all the taxes which the merchant must pay to the state, and the state appropriates the excess amount, if that is done, but nothing more. It follows, of course, that the statute contemplates that the merchant may be able to collect at least 2% of all the sales which he makes, and since this statutory provision permits the merchants to keep the amount collected from the consumer up to the 2%, it follows as the night follows day that the statute contemplates that he may use the amount so collected to pay all the taxes assessed against him, and so the claim of an independent tax goes out of the window.
Thus not only the various provisions of our statutes, but also the contemporaneous construction of the men most competent to speak on the subject clearly show that no independent tax was intended to be levied on some of the merchants, but that on theaverage the consumers should, as nearly as possible, with the aid of various brackets to be fixed by the State Board of *Page 322 Equalization, ultimately bear the burden thereof, thus harmonizing the intent of our statutes with that of the statutes of numerous other states, instead of having our system stand out as a maverick among the many. Under that construction and that only can our statutes be upheld as valid. Whether the intent has been carried out is a point which I shall refer to later.
II. CONSTITUTIONALITY OF AN INDEPENDENT TAX.
In contrast to the foregoing construction of the statute, counsel for the respondent herein construe it to mean that the legislature levied a separate and independent tax of 1%, wholly disassociated from the sales tax which is ultimately to be borne by the consumer. In other words, they claim that the legislature tapped a new and theretofore unused source of revenue. If that were so, there would arise at once a serious constitutional objection on the ground of the want of uniformity, and the absence of a rational basis for classification. It is difficult to conceive of any valid reason why a merchant selling goods for 25c and more should be able to collect the tax from the consumer while the merchant selling goods for 24c and under should be prohibited from doing so. That would constitute an intolerable discrimination. "Courts have repeatedly held that to be valid, taxation and other statutes must operate equally upon all persons of the same class; no discrimination or favoritism among them is permitted". Winslow-Spacarb, Inc. vs. Evatt, 144 Ohio State 471,59 N.E.2d 924, 926. True the statute relates to all merchants whoever may sell goods for 24c and under, but that does not solve the difficulty. We all know that some merchants sell few, if any, articles of merchandise for 24c or less; others sell many of these. It is perfectly clear that the latter would be much more heavily burdened than others, and a great discrimination *Page 323 would exist against them, if the statute were to be construed as it is construed by counsel for the respondent. Go into a jewelry store, a hardware store, a clothing store, a shop for women's wares, and perhaps others, and we find no articles that sell for less than 25c, or such articles nowadays are so scarce as to be hardly perceptible. These merchants are, under the law, able to recoup the sales taxes from the consumers. Why should it be otherwise with, and a vicious discrimination exist against, those who sell us the small articles of value, many of which we all want and need?A case in point herein is the foregoing case of Winslow-Spacarb, Inc., vs. Evatt, 144 Ohio State 471,59 N.E.2d 924, decided in February, 1945, construing the Ohio Sales Tax law. By Sec. 5546, Ohio Code Ann. 1940, the legislature levied an excise tax on sales as follows: 1c if the price is 40c or less; 2c if the price is from 41-70c; 3c if the price is between 71-100c. "If the price is less than 9c no tax shall be imposed". Subsequently, the legislature, by Sec. 5546-12a, passed an excise tax of 3% on all sales, but giving credit for the tax paid under Sec. 5546, supra. That, on the face of the statute, meant that those selling for 9c and less were assessed with an independent tax of 3% without being able to recoup the tax from the consumer, though others were able to do so, just as in the case at bar, it is contended by counsel for respondent that those selling for 24c and less have been assessed with an independent tax of 1% without being able to recoup such tax from the consumer though others are able to do so. The parallel is obvious. The case is squarely in point. The Ohio Supreme Court, holding the tax assessed against a party selling for 9c and less to be invalid struck down the evident intent of the statute, giving it a meaning to avoid such injustice, and holding that it would otherwise create an unfair and unconstitutional discrimination. The court further held that the statute *Page 324 was designed to insure the state of the receipt of taxes levied under Sec. 5546-2; that it was not designed to levy an independent tax but that the statutes as a whole were designed to secure to the state an average of 3%. The courts stated in part:
"(1) In the opinion of this court, Section 5546-12a, General Code, in its original form and as it now exists, is designed primarily to insure to the state the receipt of the excise tax levied by Section 5546-2, General Code, and does not impose an independent tax, despite some language which might convey that impression.
"(2) It is always the duty of a court to construe a statute, if possible, in a manner to give it a constitutional operation. In accordance with such rule, Section 5546-12a, General Code, should be interpreted as excluding a vendor wholly engaged in the making of separate sales of a commodity at a price less than nine cents per unit, such sales not being taxable under the express terms of Section 5546-2, General Code. If Section 5546-12a were to be applied to such a vendor who collects no tax from the consumer, the vendor would be paying three per cent on his gross retail sales entirely out of his own pocket, while other vendors in the same vicinity selling similar and other commodities, some of their sales being taxable and others not, would have the privilege and advantage of deducting `the amount of tax paid to the state by means of cancelling prepaid tax receipts,' for which expenditure they have been reimbursed by the consumer, thus placing them in a more favored position and in some instances, at least, causing them to pay little or nothing. The result would be an unfair discrimination among vendors, in violation of the equal protection clauses of Section 2, Article I of the Constitution of Ohio and the 14th Amendment to the Constitution of the United States.
"(3) Courts have repeatedly held that to be valid, taxation and other statutes must operate equally upon all persons of the same class; no discrimination or favoritism among them is permitted. This rule includes excise taxes. See 51 American Jurisprudence, 212, Section 159". *Page 325
The majority say that the case is not in point because under the Wyoming law the duty to pay a tax is imposed upon the vendor and vendee. That is an assumption. And that is the very thing that the Ohio Amendment sought to do, and the very reason why the Ohio Supreme Court held the amendment seeking to do that to be unconstitutional. The case is so clearly in point that I cannot perceive that the majority can so easily brush aside a case from a court which up to now has been held in high esteem by us. The case of Obert vs. Evatt, 144 Ohio St. 492, 59 N.E.2d 931, does not deal with the point here discussed, but with the point as to whether or not an assessment may be made after three years.
Another thing should be added here. In view of the fact that the persons selling goods for 25c and over are able to recoup their tax from the consumers, then, if the persons selling for 24c and under are not permitted to charge that tax, the result is, in substance, that the latter are taxed, and the former are not. That this is an unconstitutional discrimination is held in Winter vs. Barrett, 352 Ill. 411, although the reasoning of the court in that case is based on somewhat different ground than that applicable in the case at bar. The fact that the merchant is not forbidden to add the equivalent of the tax to the price of his goods, does not take away the odium of discrimination. Some may be able to do so and some not. The subject of incidence and shifting of taxation is an intricate one on which few persons are able to speak with authority. It is easy enough for one without experience in the mercantile field, to show theoretically that any tax, unless too outrageous, can be easily shifted, and that hence there is no harm in discrimination. The thousands, in fact innumerable wrecks in the mercantile field, bid us to be cautious in drawing any such conclusion and exhort us to take account of the facts of life. It is far safer to obey the constitutional *Page 326 mandates against discrimination. The privilege extended to collect the tax from the consumer as a tax should, if it extends to some, be extended to all. To extend special privileges is and always has been considered odious in our republic. Equal opportunity, equal privileges alone can give confidence to the public and the feeling of security to the merchants. That equal privilege does not always take the same form. It may exist in the case at bar by permitting appellant and others situated like it, to pay all the taxes so far as they may, out of the taxes collected from the consumers, the same as others are permitted to do.
The legislature of the State did not, in my judgment, intend to discriminate, in fixing a tax of 1% on sales of 24c and under; it attempted, and I think, deliberately and in a spirit of fairness, to avoid any discrimination, believing that the State Board of Equalization could so arrange the brackets, directed to be fixed by it, in such a way so as to effect non-discrimination. Whether the aim has been accomplished or not, may, doubtless, be easily ascertained from the reports sent to the State Board of Equalization, and if it has not been accomplished, as seems to be true, the fault may, perhaps, be corrected by rearranging the various brackets. The legislature did not, of course, intend that the brackets to be fixed by the Board should forever remain the same if they should be found not to accomplish the ultimate aim of the statute. Matters of this kind can be corrected only by trial and error. The brackets first fixed were intended to be tentative to be corrected as experience should demonstrate to be necessary. In the case at bar the appellant by paying 2% on the larger sales will pay $13,448.58 and by paying 1% on the sales of 24c and under will pay $2,868.09, a total tax of $16,316.67, while it collected only $14,871.92, a difference of $1,444.75. By adding the $1423.34, involved in this case, as the majority of the court is doing, appellant will pay *Page 327 $2,868.09 more than it collected. While in matters of taxation, exact justice cannot be expected, justice in the rough is possible, and the foregoing difference of $1,444.75 and $1,423.34, unjustly paid or to be paid by appellant herein, is too large an amount to even come within the term "justice in the rough".
I have called attention to the nature of the sales tax and the features of constitutionality because these points naturally press themselves upon our attention when the argument is advanced that the tax in controversy here is an independent tax, wholly disassociated from the tax to be ultimately borne by the consumers. If what has been said above is correct, that in itself, without more, clearly shows that all the tax rightfully collected by the appellant herein from the consumers was intended to be used to pay all the tax assessable against the appellant. As a matter of fact, the provisions of the law, as hereafter more fully discussed, and aside from the conclusions heretofore drawn, clearly demonstrate the injustice of the judgment herein. It should not have been necessary to enter into the foregoing discussion, and I should not have done so, except to show more clearly — though that is hardly possible as will appear from what is stated hereafter — the error of my associates. And if the foregoing discussion has accomplished nothing else except to call closer attention to the historical facts of our sales tax law, and to its fundamental aims, it will have subserved its purposes, and I shall be satisfied, leaving it in the hands of future legislatures to display that fairness and justice which, on the whole, they have so eminently displayed in the past.
III. NO EXCESS COLLECTION DUE THE STATE.
Whether my statement as to the characteristics of our sales tax are true or false, cannot change the result that should be reached in this case, as will appear presently. *Page 328 The majority of this court have succeeded admirably — though I did not think that possible — in handing down an opinion which on its face appears to be basically just. As a matter of fact, a careful reading of the facts and the two brief statutory provisions applicable herein will, in my judgment, prove the conclusions reached by the majority to be completely erroneous. Before proceeding to discuss the main points involved, two minor points seem necessary to be noticed, in order that those who possibly happen to read this dissenting opinion along with the majority opinion may consider the main points freed from any preconceived judgment. Part of the majority opinion, after giving certain computations and referring to the theory of appellant herein, contains this statement: "In other words, the company could even pay the state both the sum of two per centum collected on its sales of twenty-five cents or more plus the excess of that amount which the state also claims, and still the company would be profiting to the extent of $1444.75. But the company nevertheless insists that it should retain also the sum of $1423.35, the excess as thus computed. We hardly think it was the intention of the legislature to make it possible for vendors to make such a profit out of tax money taken from the citizens of this state — in this case to the extent of $2868.10".It is hard for me to believe that the court means what this statement seems to mean and conveys to the ordinary mind. Putting and portraying the figures as above makes the opinion appear as a righteous one. Figures, they say, do not lie, but the inference drawn therefrom, and from the manner of their presentation, are sometimes terribly wrong. I never before heard that a loss, or a forced payment out of one's own pocket, constitutes a profit. Whether it was intentional or otherwise, the foregoing statement, particularly when the opinion is read as a whole, leaves with the reader, or at least with *Page 329 me, the impression of dishonesty and grasping conduct on the part of the appellant. That is in no manner justified by anything in the record before us. I cannot think that this case should be decided upon the theory, not warranted by the record, that the appellant has been dishonest or grasping, and that hence the court must find some means to compel the appellant to disgorge its ill-gotten gain. If the company paid 2% on its sales of 25c and over, that is to say $13,448.58, plus the amount the State claims, ($1423.34), it would pay exactly the amount it collected as a tax. There would be no profit or loss — a profit of $1444.75 or any other sum in such case is a mathematical impossibility. The simple facts are, as twice heretofore stated, that the company's 2% tax on its larger sales is $13,448.58; its 1% tax on the smaller sales is $2,868.09, a total of $16,316.67. It is willing to pay that. It collected only $14,871.92. In other words it collected $1,444.75 less than its 2% and 1% taxes, and is compelled to pay that out of its own pocket. Just by what legerdemain that can be said to be a profit of $1,444.75 is something that needs better explanation, and how that is increased to $2,868.10 is beyond my comprehension. If appellant is not compelled to pay the $1,423.34, its loss will still be $1,444.75. If it is compelled to pay it, its loss not profit will be $2,868.10. The majority seemingly bases its computation on a tax liability of appellant of $19,184.76. If so, that, of course, is utterly wrong, and I can see no justification for its use in connection with the statement above quoted.
I pause here to refer to the question propounded by the majority opinion, namely as to whether or not the appellant could recover the $1,423.34, if it had already paid it. Though the point has no bearing in this case I might say that if the appellant had paid it under protest, and nothing further appeared in the record, I should answer the question by an emphatic yes. The *Page 330 court cites cases from Illinois, New York and Kentucky. These cases seem to be decided on the theory that the tax payers unlawfully or dishonestly collected money sought to be recovered. There is not the slightest evidence in the record before us that indicates that to be true here. Hence the foregoing cases and the discussions in connection are wholly immaterial herein.
No basis of any kind, except the fiat of the court, justifies the holding that the appellant owes anything to the State. Our statutes are clear and decisive on that point. Under Sec. 4 (e) of the Sales Tax Law, heretofore quoted in full, the legislature imposed upon the retailer the duty to pay to the State a tax of 2% on all sales of 25c or over, and a tax of 1% on the minor sales. Nothing more. There is no hint or intimation in that provision that any excess of collections over and above that 2% on the larger sales should go to the State. If the excess has been collected lawfully (which I think it was) it is the property of the seller; if unlawfully it belongs to those who paid it. Neither under the provisions of the statutes heretofore quoted nor under any principle of law has the respondent any right or claim thereto, provided, of course, the appellant pays the tax due from it. That is elementary and it should not be necessary to cite the rule of law mentioned in 47 Am. Jur. 216, Sec. 14 that sales tax statutes should be strictly construed.
We now come to the provision of Sec. 5 of the Sales Tax statute which is claimed to have a bearing herein. That provision reads as follows: "If any vendor shall, during any reporting period, collect as a tax an amount in excess of 2% of his total taxable sales, he shall remit to the Board the full amount of the tax herein imposed, and also such excess". Simplified, the provision is that if a merchant collects more than 2% of all his taxable sales, he must pay the excess to the State. If he collects *Page 331 only to the extent of 2%, he pays no excess. This provision was copied verbatim from the 1935 Sales Tax Law. It was intended that the merchants should serve as compulsory agents of the State to collect the tax without receiving any compensation for that service. The uniform tax under the 1935 law was 2%. That was changed in the 1937 law to 2% and 1% as already shown. And if the attention of the legislature had been called to it, it might have modified this provision to the effect that if the retailers should collect more than the 2% and 1% fixed by the law, the excess should be paid to the State. That would not have made one iota of difference in this case, since the amount collected by appellant fell short of that amount by more than $1400.00. The provision was not changed, and we must take it as find it. It is as plain, as clear, as unequivocal as the English language can make it. There cannot be the silghtest doubt as to its meaning. It does not require any one educated in the law to read it and understand it perfectly. The term "taxable" was doubtless inserted in this place for the reason that not all sales are taxable. Some sales are specifically exempted under Sec. 2 of the Sales Tax Act. But in the case under Sec. 4 of the Act all sales made by the appellant herein are taxable, some at 2%, others at 1%. That is clear. Hence it is also perfectly clear that the excess under the foregoing provision consists of an amount over and above the 2% of the total sales. The tax of 2% on the total of the sales made by the appellant herein would amount to $19,184.76, while the appellant collected only $14,871.92. Hence there is no excess within the meaning of the foregoing provision which is taxable to the appellant. Counsel for the respondent would read that provision as follows: "If any vendor shall, during any reporting period, collect as a tax an amount in excess of two percent of his total taxable sales over twenty-five centsor more, he shall remit to the Board the full *Page 332 amount of the tax herein imposed, and also such excess". The words in italics do not appear in the law and courts do not have the right to insert them. Without these words inserted, no basis for liability herein can be found. The majority of the court, calling it interpretation, in effect say that the provision should be read with that interpolation inserted. It is said that this is warranted in the light of Sec. 4 (e). No other explanation is made. Sec. 4 (e) does not make appellant liable for any excess. It makes it liable only for a 2% and a 1% tax which it is willing to pay. I can conceive of no possible reason why on account of that provision the provision of Sec. 5 should be changed and mutilated, and a new factor of additional liability be introduced thereby. Two different legislatures enacted the latter provision. The 1937 statute, in connection with the point here considered, differs from the 1935 statute only in raising the bracket in which no tax is exacted from the consumer from 13c to 24c. Under the 1935 law the merchant paid 2% tax on sales under 14c without collecting it from the consumer, just as the merchant pays the 1% tax under the 1937 statute without collecting it from the consumer. Hence if the interpretation now put upon the foregoing provision has any sound basis, the legislature of 1935 necessarily meant that 2% in excess of the total sales over 14c or more should be paid to the State. It enacted no such provision. So an ignorance is attributed to two different legislatures of which they were not guilty. I am unable to see that to sanction the foregoing interpolation under the guise of interpretation is anything else than an arbitrary mutilation of a plain statutory provision, or anything else than the purest kind of judicial legislation and usurpation. I venture to assert that no appellate court during the many centuries of Anglo-American jurisprudence has ever before gone half that length. *Page 333
It is correct that the provision of Sec. 5, supra, designates something collected by the vendor as a tax. It is also correct that the vendor collects nothing as a tax on sales of 24c and under. Hence it necessarily follows that the tax collected by the vendor, as contemplated by that provision, comes from sales of 25c and more. It is that tax, collected from that source, which belongs to the State only if, and only to the extent of the amount in excess of 2% of the total sales. If the provision of Sec. 5 is relied on as a source of liability of the appellant — and there is none other — the provision should be accepted as it stands without multilation. I may be pardoned at this point to again call attention to the fact that, since the legislature has given to the State a claim to nothing more than the excess above mentioned, it necessarily has left the remainder of the tax collected to the merchants, and that conclusively shows that all the money collected, not in excess of 2% of the sales, may be used, as far as it will, to pay all the taxes due from the merchants, and so, as stated before, the theory of an independent tax "goes out of the window".
The majority opinion is partially based on the construction put on the law by a former Attorney General. It is, of course, not surprising that that official, without the benefit of arguments on both sides, and frequently under the press of business and without the time to deliberate as has this court, should occasionally send out an erroneous opinion. Correct or erroneous the duty of this court to form an independent judgment is not lessened. It is stated that the construction put upon the statute as above menioned "has received the approval of at least two of the chief law officers of the state". I presume that one of these is the present Attorney General, since we know nothing of any other in this connection except him and the Attorney General in 1937. So, if I understand the majority opinion, we *Page 334 have come to the point apparently where the opinion of the Attorney General expressed in a case in this court is given greater weight than the opinion of opposing counsel, merely because of the position as Attorney General. Credence is given to the statement in the brief of the Attorney General, without the slightest support in the record, that thousands of dollars have been collected under the construction put upon the law as above mentioned. Even if that be true, just because thousands of dollars have been unjustly collected from others is no justification for carrying the injustice further, but should be an incentive to stop it as promptly as possible. Surely that should not become part of the prop to sustain an opinion of the court.
The construction above mentioned was adopted in 1937. It was attacked in 1942, and I am assuming that the court would not decide against a litigant merely because of the flux of time since the litigation commenced. The period intervening between 1937, when the Sales Tax Act was passed, and 1942, when the additional assessment here in controversy was made, is altogether too short a time to give the foregoing opinion or any other administrative opinion the force of law, and thus, as it were held that a taxing statute was enacted by acquiescence. The claim that an independent tax has been levied upon the merchants of this State, without affirmative action on the part of the legislature but merely by acquiescence, as a result of an opinion of the Attorney General, or for that matter as a result of practice, is utterly repugnant to all thoughts hitherto entertained on questions of taxation. Acquiescence is even sought to be made retroactive in so far as that occurring since the litigation herein was commenced is considered. Retroactive effect is ordinarly not given even to positive statutes enacted by the legislature. Moreover, the opinion of the former Attorney General has never, as we are informed, been published so we do *Page 335 not know whether it has become generally known to the public or to the legislature, and the record before us is silent on the point. Nor is there any information in the record before us as to the administration of the law in other cases like that before us. In Crane Company vs. State Tax Commission (Ariz.) 163 P.2d 656, the Court refused to pay any attention to a rule of the tax commission which was in force for a period of four years, exempting certain goods from the sales tax, and that in face of facts which might well have induced the court to do otherwise. In the case of Commissioner of Internal Revenue vs. Laird Wilcox and Maud Wilcox, the Supreme Court of the United States in an opinion of February 25, 1946 (not yet officially reported) set aside and held for naught a construction put upon the tax laws by the administrative department of the Government, though that construction had been adopted at least as early as 1936. Furthermore, we have held that consideration of contemporaneous construction by an official or a department "`is restricted to cases in which the meaning of the statute is really doubtful, and the courts are not bound to follow, or justified in following, an executive construction which is clearly erroneous'". Christensen, State Treasurer vs. Sikora, 57 Wyo. 57, 112 P.2d 557. In that case we refused to follow a construction put upon a statute by a department of this State for a period of twenty-six years, and in a case in which the law, if as clear, was certainly not any clearer than the statute in the case at bar. That case cannot be waived aside by the bare statement, not supported by the facts, that the statute applicable in this case is doubtful. If that was good law then, it should be good law now, and that decision should not be considered merely as a "one way ticket".
The appellant had no opportunity to attack the construction put upon the law as above mentioned until the special assessment was made against it. It took the *Page 336 first opportunity given it to do so. Matters of this kind are apt to take several years before they can be tested in the courts. So that to give any force to the interpretation put upon the law by the Attorney General or administrative officers is equivalent to depriving litigants in such matters of any and all redress in the courts of the State — surely an undesirable thing to convey to the knowledge of the tax payers of the State. The majority of the court, in my humble judgment, accordingly, has abdicated in this and like cases its prerogative and duty entrusted to it by the laws and the constitution of this State.
In view of the increasing burdens of taxation in this day and age it hardly behooves this court to usurp the functions of the legislature and aid in establishing a levy of tax which does not appear in the provisions of the law enacted by the legislature. The merchants of the State bear a heavy enough burden in acting as compulsory tax collectors for the State, and as guarantors, and if an independent tax, wholly and completely disassociated from the sales tax, which on the average is supposedly and ultimately to be borne by the consumer, is to be paid by them, then the levy of such independent tax, not infringing on any provision of our fundamental law, should be left to the legislature upon which devolves the function in that connection under the constitution. *Page 337