dissenting.
I disagree with the majority opinion and would reverse the judgment of the trial court and dismiss the taxpayer’s application for correction of the assessment complained of.
The difficulty with this case centers on the meaning of the following clause found in Code, § 58-257; “* * * but if any one or more of the partners remain in the firm, the business shall be regarded as continuing; * * In fact, the issue can be narrowed to the meaning of the single word “firm,” for it is on the definition of this word that the decision must rest.
The majority opinion states that “The partnership or firm does not necessarily continue but the business shall be regarded as continuing.” This seems to imply that the word “firm” means partnership, but further on it is said that “In this instance ‘firm’ is used in a broad sense, meaning the business to which the tax relates, and not in the narrow, technical sense denoting a partnership. ’ ’ This is a gratuitous assumption without authority of the very point in issue.
.All through Chapter 7, Title 58 of the 1950 Code, which deals with “Licenses Generally” (and includes § 58-257) reference is made to three different types of business organizations; vis., (1) an individual or person, (2) a firm, and (3) a corporation: Section 58-321, for example, states that “Every person, firm and corporation engaged in the business of a retail merchant shall pay a license tax * * Section 58-241 requires that the application for a license shall state “(5) Whether the applicant is an individual, a firm or a corporation; (6) The name and residence address of each member of the firm, * * And § 58-242, provides that “If the applicant be an individual the affidavit must be made by him, if a firm by one of the members and if a corporation by the officer having knowledge of the correctness of the statements made in the application. ’ ’
*733This shows conclusively, I think, that “firm” was used in the narrow, technical sense denoting a partnership and not in a broad sense, meaning* the business to which the tax relates.
This conclusion is inescapable, not only when § 58-257 is considered in the general context of Chapter 7, Title 58, but when the section is examined separately. The headline of the section refers to a change in partners (an obvious reference to a partnership) or name of firm; the name of the firm being the name under which the partnership conducts its business. The body of the section speaks of the taking in of a new partner and, conversely, the withdrawal of one or more of the firm. This language indicates that the business entity referred to is a partnership.
Moreover, the word “firm” is used three times in § 58-257. It is not argued that as used in the first and second instances, it means anything else but a partnership; however, the majority say that the third time it is used it has a different meaning, vis., “business.” Yet it is a well-established rule of statutory construction that when the same word is used in different parts of the same statute, the presumption is that it is used in the same sense throughout the statute, unless a contrary intention clearly appears. Bridgewater Man. Co. v. Funkhouser, 115 Va. 476, 79 S. E. 1074.
The word “firm” in each instance here means “partnership”; any partnership that fulfills the requirements of the statute. Section 58-257 refers to “the withdrawal of one or more of the firm. ” It is familiar law that the conveyance by a partner of his interest in the partnership does not of itself dissolve the partnership (Code, § 50-27); but even if it does, § 58-257 contemplates that the business may be continued by the formation of a new partnership; therefore, it is provided that the business shall be regarded as continuing so long as at least one partner, who was a member of the partnership before dissolution, remains in the firm. Let us assume, for example, that A, B, and C are engaged in the business of a retail merchant as co-partners. A new member, is taken into the partnership and the firm continues the business. Under the authority of Peters v. McWilliams, 78 Va. 567, the admission of D into the firm, ips'o facto, dissolves the old partnership. Although the legal character of the partnership has changed “the business shall be regarded as continuing,” and it is clear that the new partnership will *734compute its license tax on the same basis as did the old partnership. Going hack to onr original illustration of A, B, and C, let ns assume that A and B withdraw from the firm. If the remaining partner, C, secures one or more new partners to join with him in carrying on the business “the business shall be regarded as continuing,” and this new partnership will be entitled to continue the computation of the license tax on the same basis as before. But if C continues the business alone, as Jones did, he is no longer a “partner” and he is not in a “firm” so § 58-257 does not apply to him.
This being the true intent of the statute, the alleged inconsistency between the words “one” and “firm” as argued by the taxpayer and adopted by a majority of the court is not an inconsistency at all. This section is directed to the situation where a partnership takes in a new partner (still a partnership) or one or more of the partners withdraw (still a partnership) and at least one partner remains in the firm. The one partner referred, to is a partner who was a member of the firm prior to the “withdrawal of one or more of the firm.” The reconciliation of one and firm is that one old partner plus any number of new partners constitute the “firm” which is engaged in a business to be regarded as continuing.
The only reason why the legislature enacted § 58-257 is that it desired to establish a special rule for partnerships, by which their position taxwise is assimilated to that of corporations. Clearly a change of personnel of stockholders would not result in á corporation being considered as commencing business. Section .58-257 declares that a change of partners likewise produces no such result. Implicit, of course, is the idea that a partnership continues to conduct the business. Without § 58-257, every time a new partnership was formed under the technical legal rules applying* in this branch of the law, it would be necessary to take out a new license as a beginner. By the enactment of § 58-257 it was intended.to cure this difficulty and it was specifically provided that the taking in of a new partner or the withdrawal of one or more would not effect a change in the business in so far as the computation of its license was concerned.
The majority opinion in broad language declares that the statute under consideration should be liberally construed and then proceeds to ignore the plain purpose and intent of the legislation by giving a construction to the statute directly in conflict *735with the language used. Three times this vital word “firm” is used in the section under consideration. It is conceded to mean a partnership in the first two instances, hut in the third instance it has magically, by a co-called liberal construction, changed to mean a “business,” a classification of taxpayer nowhere recognized in the chapter dealing with “Licenses Generally” and a name broad enough to be inclusive of individuals, partnerships, and corporation alike. And all of this is found in a statute dealing with the “Effect of change in partners or name of firm.”
The majority opinion refers to the well-recognized rule that a tax statute must be most strongly construed against the government and in favor of the taxpayer. But this is not a case for the application of that rule. Under either construction of the statute the taxpayer sometimes will be benefited and sometimes not. It all depends on whether the sales for the preceding year were more or less than the sales of the current year. In the former case it is .to the taxpayer’s advantage to be considered a beginner, in the latter ease it is not. What will the position of the majority be when another taxpayer comes and says he is injured by having to pay his license on the basis of the predecessor partnership’s prior sales? Strict reliance on this rule would mean that each case would have to be decided solely on the question whether the particular taxpayer was benefited or not. The policy heretofore followed by the Department of Taxation on this question seems to be fair and equitable and in accord with the letter and spirit of the statute. In each case the taxpayer situated as is Jones always pays a license tax based on his true sales.
Eggleston and Buchanan, JJ., concur in this dissent.