dissenting. In deciding this case, we have lost sight of a common-sense approach to the law. The court adopts a technical reading of “essential” in finding that Ohio can levy a use tax on soft drinks to be consumed aboard airlines. However, the business of transportation of persons, I believe, requires a different analysis from that employed by the majority in interpreting the tax code.
The case of Erie RR. Co. v. Peck (1953), 160 Ohio St. 322, 52 O.O. 209, 116 N.E.2d 304, directly illustrates the difficulty in applying the concept of “essential” or “direct use” in transportation cases. In Erie, the court reviewed the taxability of materials used or consumed in the construction of a passenger station, which the Tax Commissioner had ruled was not “directly used” in transportation but was merely “convenient.” The Board of Tax Appeals found:
“No doubt can exist of the fact that construction and use of this building is of advantage to Erie and its passengers. It expedites the handling of baggage, express, [and] mails and conveniences passengers. It facilitates their transportation system, just as a typewriter in its offices facilitates its paper work. The business of railroads in early days was the transportation of passengers and freight. Little or no heed was paid to a passenger’s convenience. * * * As transportation grew the states entertained an idea that transportation companies served the public and that they owed some duty to their patrons. Legislative requirements resulted. This, together with carriers’ competition, and their own convenience, brought about the erection of stations which provided waiting rooms, toilets, heating facilities and other facilities now found in railroad stations for their own and their patrons’ convenience. Without these conveniences the business of transportation could and does still go on. These conveniences, without question, facilitate the business of transportation. They expedite it and make it attractive to the public, but do not enter into the act of transportation itself.” Id. at 323-324, 52 O.O. at 210, 116 N.E.2d at 305.
However, this court in Erie interpreted the code language in a broader manner:
“Were the materials which were fabricated into the appellant’s passenger station and its approaches used or consumed ‘directly’ in the rendition of a public utility service?
“This question is illustrative of the fact that adjectives and adverbs seem to be the chief trouble makers in problems of statutory construction for the obvious reason that they may mean one thing to one mind and something different to another. So here the word ‘directly’ is applied by the appellant and the appellee *417to the instant facts with opposite results.” Id. at 325-326, 52 O.O. at 211, 116 N.E.2d at 306.
Citing code requirements that railroad stations maintain suitable waiting rooms “conducive to the comfort and health” of passengers (R.C. 4963.02),1 this court in Erie found that such statutes were of value in determining whether a passenger station was essential and used directly in the business of transportation.
Similar issues existed in Ohio Bus Line Co., Inc. v. Bowers (1964), 1 Ohio App.2d 122, 125, 30 O.O.2d 150, 152, 200 N.E.2d 688, 690 (restroom supplies and safety equipment are exempted, as “buses must be clean and safe for passengers”).
I do not believe that the definition in R.C. 5739.01(P) overrides the concepts embodied in these two cases. That items used for the comfort of passengers are “essential” and “directly used” is a concept that can apply equally well under the new definition. “Essential” obviously holds different meanings for different minds. Erie, 160 Ohio St. at 325-326, 52 O.O. at 211, 116 N.E.2d at 306.
The statutes interpreted by the majority can be just as easily interpreted in a practical manner. In the words of R.C. 5739.01(E)(2), the consumer “consume[s] the thing transferred [soft drinks] * * * directly on the plane in the rendition of a public utility service [air transport].” R.C. 5739.01(P) requires transportation (flies from point A to point B).
It is difficult to compare the consuming of soft drinks when one is thirsty to “items * * * which are essential to the continuous production of the public utility service,” in the production of electricity, such as the coal handling equipment, air preheaters, and storage tanks for fuel, acid, and water in Cincinnati Gas & Elec. Co. v. Kosydar (1974), 38 Ohio St.2d 71, 76, 67 O.O.2d 81, 85, 310 N.E.2d 245, 248. The need of the human body for fluids is not comparable to the need for leased gondola cars for transportation of coal, as in Cleveland Elec. Illum. Co. v. Bindley (1982), 69 Ohio St.2d 71, 74, 23 O.O.3d 118, 120, 430 N.E.2d 939, 941. Passenger service cannot be likened to the production of electricity.
The argument over whether dehydration was scientifically proven misses the point. Do liquids become essential only in a five-hour flight, or in a ten-hour transatlantic flight? When airline passengers are in flight, they are in a closed environment. Food and beverages are essential to human comfort and convenience.
Transporting human beings is the business of airlines. The analysis of the necessity of services to passengers should be different from the analysis of *418necessity in the production and transporting of gas or electricity. This analysis does not require scientific studies. It requires only common sense and human experience.
In addition, I would reverse the Board of Tax Appeals on the issue of a permissive use tax on the sale of alcoholic beverages, rather than remand for consideration.
The alcoholic beverages were clearly held for resale under R.C. 5739.01(E)(1) and 5741.02(C)(2) and are therefore exempt from a permissive use tax. USAir has already paid the state-levied sales tax on such sales. Storing and loading the liquor beverages were for purposes of resale, and the application of a permissive use tax would fly in the face of all other interpretations of the phrase “held for resale” and would affect all retail vendors in Ohio. Such double taxation is unfair.
The tax laws of this country are overreaching and burdensome already. We find more and more ways to tax every small event or transaction. To allow the stretch made by the Tax Commissioner and the Board of Tax. Appeals only furthers the sense of oppressiveness of the tax code. Common sense should prevail in interpreting the law in this case. Therefore, I respectfully dissent.
F.E. Sweeney and Pfeifer, JJ., concur in the foregoing dissenting opinion.. R.C. 4963.02 still requires that railroads maintain waiting rooms. “Such room shall be so maintained and kept as to be conducive to the comfort and health of the patrons of the railroad.” (Emphasis added.) The analogy to airline passengers is compelling.