The decree of the Circuit Court is as follows:
Finding of Facts From a careful consideration of the record and the oral testimony of several expert witnesses testifying on behalf of both the Appellant and Appellee in this cause, I find the basic facts to be as follows:
Appellant is a corporation, duly organized and existing by virtue of the laws of the State of Tennessee and is duly qualified, and is doing business in the State of Alabama. That the business of the Appellant is that of photography. I find further that the Appellant's process and method of doing business is as follows:
Under the direct supervision of the Corporation in Chattanooga, Tennessee, an Advance Sales Unit, composed of from three to five Salesmen, will canvass or solicit orders within the various municipalities throughout the State of Alabama for photographs. All orders are accepted for future delivery, to be manufactured, processed and finished in Chattanooga, Tennessee. At the time an order is accepted, the customer is notified where and when to appear to have the "sitting" or "exposure" made. These "sittings" or "exposures" are usually made at the leading hotel within the municipality. An advance deposit of Fifty Cents (50¢) is collected at this time and the customer is given a duplicate of the order. The Corporation reserves the right to accept or reject any order accepted by its Salesman.
Subsequently, at the appointed time and place, a cameraman, also under the direct supervision of the Corporation, takes the "sitting" or "exposure". At this time, an additional deposit of Fifty Cents (50¢) is collected. These exposed negatives are then sent by the United States Mails to the Corporation's Plant in Chattanooga, Tennessee. There they are developed, processed and proofs manufactured. These proofs are then sent by the United States Mails to another representative, also employed by and under the direct supervision of the Corporation. The customer is notified by the United States Mails the day to select the proof and order any additional pictures desired. For the One Dollar ($1.00) deposit paid, the customer is to receive one 8" x 10" Size Unmounted Photograph. These orders are then sent by the United States Mails to the Corporation's Plant in Chattanooga, Tennessee where the finished photograph, or photographs, are finished and manufactured and mailed directly to the customer. Any balance due on the order is paid C. O. D.
All orders are taken for future delivery and mailed directly from the manufacturing or finishing Plant in Chattanooga, Tennessee to the customer in the State of Alabama. No part of the processing, developing, manufacturing, or finishing is carried on within the State of Alabama.
I further find that the manufacturing processes of photography are generally as follows:
A sheet or piece of emulsion-covered, unexposed film is inserted or placed in a camera. The object to be photographed is placed within the range of the lens. The opening of a "shutter", allowing light to be transmitted, then produces an image on the emulsion-covered film. This exposed film, *Page 305 when placed in a chemical developing solution then "fixed", results in a negative. This negative is then dried.
This piece or sheet of film is then placed next to a sensitized sheet of paper, commonly known as Proof Paper. Light is then transmitted through the negative to the sensitized material, resulting in a positive image commonly known as a "Proof".
A Proof is made from each negative and is shown for the customer. The customer then selects the proof, or proofs, and the same being returned to the Manufacturing Plant, aforesaid, is then matched with the negative.
These negatives are then placed in a printer where the following process takes place, to-wit:
Light is transmitted through the negative, then through a lens which transmits the image on a sensitized sheet, or piece, of emulsion-covered, unexposed paper. The sensitized material is then placed in a developing solution where it is agitated for approximately two minutes. After the material has been completely developed, it is placed in a "fixed bath" which makes the positive print permanent. It is then washed and dried.
I further find that the Appellant is a "manufacturer or compounder" of tangible personal property for resale as the quoted terms are used within the meaning of the Alabama Use Tax Law.
I further find that the film consumed and used in such manufacture enters into and becomes an ingredient and component part of said tangible personal property to-wit: the finished manufactured photograph or picture.
I further find that the purchase of this film by Appellant from its foreign supply is a "wholesale sale" as such term is used in the Alabama Use Tax Law.
Opinion Subsection (d), Section 787, Title 51, Code of Alabama, 1940, defines the term "wholesale sale" or "sale at wholesale" as follows:
"The term 'wholesale sale' or 'sale at wholesale' means a sale of tangible personal property by wholesalers to licensed retail merchants, jobbers, dealers, or other wholesalers for resale and does not include a sale by wholesalers to users or consumers not for resale. The term 'wholesale sale' shall include a sale of tangible personal property or products (including iron ore) to a manufacturer or compounder which enters into and becomes an ingredient or component part of the tangible personal property or products which he manufactures or compounds for sale, and the furnished container and label thereof."
Webster's Dictionary defines the words "compound" and "manufacture", respectively, as follows:
Compound: "To put together, as elements, ingredients, or parts, in order to form a whole; to combine, mix, or unite * * * to form or make up, as a composite product, by combining different elements, ingredients, or parts;" etc.
Manufacture: "To make (wares, or other products) by hand, by machinery, or by other agency; * * * to produce by labor, esp., now, according to an organized plan and with division of labor, and usually with machinery. * * *"
The Court is of the opinion that appellant is a manufacturer or compounder as these terms are employed in Subsection (d), Section 787, Title 51, Code of Alabama 1940, as quoted above and further that the sale to the Appellant of the film is a wholesale sale since it enters into and becomes an ingredient or component part of the tangible personal property it manufactures, namely, the finished, manufactured photograph or picture.
Final Decree This cause coming on to be heard before me, came the parties by their attorneys, and the cause was submitted upon the pleadings and the proof as noted by the Register, for final decree.
Upon consideration thereof, the Court is of the opinion and finds that Appellant, Olan Mills Incorporated of Tennessee, a corporation, is entitled to relief to the extent herein recited. It is therefore, *Page 306
Ordered, Adjudged and Decreed by the Court that:
(1) The assessment by the Department of Revenue of the State of Alabama against Appellant for use tax, for the period of April 1, 1947 through March 31, 1950 based upon the film consumed and used by Appellant is illegal and void and invalid and said assessment as to such film be and the same hereby is set aside, vacated and held for naught.
This is an appeal by the State from a final decree of the circuit court of Montgomery County, in equity, vacating an assessment made by the Department of Revenue of Alabama against appellee taxpayer for use tax. The question for decision is whether the film used by appellee in making photographs or pictures is subject to a use tax or whether the film is nontaxable within the terms and definition of subdiv. (d), Sec. 787, Tit. 51, Code 1940.
The use tax was imposed by the legislature as a complement to the sales tax so that resident taxpayers in the state acquiring by purchase or otherwise goods and chattels at retail without the state might be subject to tax for the use and consumption of said articles within the state. State of Alabama v. Advertiser Co., 257 Ala. 423, 59 So.2d 576; Layne Central Co. v. Curry, 243 Ala. 165, 8 So.2d 839.
Tangible personal property purchased at wholesale is not subject to the tax. The trial court held that such was the status of the property under consideration, in consonance with the contention advanced by appellee. Such sales are thus defined by the subdivision of the Code section, supra:
"(d) The term 'wholesale sale' or 'sale at wholesale' means a sale of tangible personal property by wholesalers to licensed retail merchants, jobbers, dealers, or other wholesalers for resale and does not include a sale by wholesalers to users or consumers not for resale. The term 'wholesale sale' shall include a sale of tangible personal property or products (including iron ore) to a manufacturer or compounder which enters into and becomes an ingredient or component part of the tangible personal property or products which he manufactures or compounds for sale, and the furnished container and label thereof."
The question for decision is whether or not appellee is a "manufacturer or compounder" in the production or manufacture of pictures and if so, whether the film used in making the finished product which is sought to be taxed "enters into and becomes an ingredient or component part of the tangible personal property or products" appellee manufactures.
In holding to the affirmative of the question on a hearing orally before the court, the learned judge made a finding of facts and rendered an opinion illustrative of the decree, which will appear in the report of the case. We are in accord with that opinion and decree.
Our recent cases of State v. Advertiser Co., supra, and State v. Progressive Farmer Co., Ala.Sup., 60 So.2d 144,1 confirm the correctness of the decree. These cases hold that the publishing of a newspaper is compounding, processing and manufacturing within the terms of the use tax act and that printer's ink used in printing the newspaper and forming a substantial part of the assessment became "absorbed in and is an ingredient or component part of the paper itself" [59 So.2d 581] and was nontaxable. The opinion in the Advertiser case refers to many previous decisions which we think illustrate the soundness of that holding and point to the correctness of the decree in the instant case.
That these two cases, ubi supra, make it conclusive that the production of photographs in the manner stated constitutes manufacturing within the terms of the quoted provision of the statute is beyond question. The definition of manufacturing and processing given in the opinion of the court in the instant case is likewise apt. The Advertiser case, quoting from Curry v. Alabama Power Co., 243 Ala. 53, 8 So.2d 521, and Webster's New International Dictionary, appropriately defined the terms pertinent here as follows:
"(Manufacturing) 'Making of anything by hand or artifice, or the process of making anything by the art of reducing materials into a form fit for use, by the hand or by machinery, or the *Page 308 production of articles for use from raw or prepared materials, by giving such materials new forms, qualities, properties, or combinations, whether by hand labor or by machinery.'
"* * * Webster's New International Dictionary, * * * 'processing' * * *:
" '* * * d. to produce or copy by photo-mechanical methods; to develop, fix, wash and dry, or otherwise treat (an exposed film or plate).' "
Cases to the opposite effect cited by aplant, such as City of Lexington v. Lexington Leader Co., 193 Ky. 107, 235 S.W. 31,33, holding that a publisher of a newspaper is not "engaged in manufacturing" within the tax statutes there construed cannot be considered of any force to a different conclusion here in the light of our own recent decisions. It is perhaps well to mention, as was mentioned in the Advertiser case, that we are dealing with a particular statute which is not identical with the statutes construed in the other cases cited by appellant. We think our cases point so clearly to the conclusion reached that we will not here attempt to rationalize a distinction.
Also that the film used in the production or manufacture of photographs became an ingredient or component part of the product manufactured is reasonably to be concluded from a consideration of the quoted section of the use tax act, just as printer's ink used in the printing of a newspaper was so construed in the Advertiser case, and as various chemicals entering into the manufacture of pulp and paper from sap pine was so construed in our case of State v. Southern Kraft Corp.,243 Ala. 223, 8 So.2d 886. Though the film, after having been developed into the negative, does not altogether lose its identity, its properties by the process described in the opinion of the trial court have entered into and become a component part of the finished product. It is thereafter worthless for any other use and and in our view comes within the quoted definition of a wholesale sale. The fact that the entire film did not enter into and become a component part of the finished product impresses us as of little moment. Undoubtedly the same was true of the printer's ink in the manufacture of the newspaper and the chemicals in the making of the pulp.
One other principle will be adverted to as persuasive to the result attained. That is, appellee has been transacting similar operations in this state for a period of some ten years with no effort having been made by appellant to exact payment of the tax. While such inaction on the part of the State is not conclusive against the assessment, such administrative construction must be looked upon as importing some favor toward the taxpayer. As was said in Jones v. Johnson, 240 Ala. 357,361, 199 So. 539, 542:
"* * * the administrative construction given by the highest officials charged with the duty of administration of tax laws should be given favorable consideration by the courts especially if such construction has stood unchallenged for considerable time."
Appellant argues that subdiv. (d), Sec. 787, Title 51, is an exemption from the use tax act and therefore should be strictly construed against the taxpayer. The contention cannot be sustained. Subdiv. (d) provides for no exemption from the sales tax. That provision deals with coverage, not with exemptions. State v. Southern Kraft Corp., supra, 243 Ala. 223, 227,8 So.2d 886. The provision exempting uses from the tax is Sec. 789 of the title. Hence the rule of construction called for is that the stated provision of the statute is to be construed strictly against the taxing power, with favor indulged toward the taxpayer. Phenix City v. Alabama Power Co., 251 Ala. 403,37 So.2d 515; Gotlieb v. City of Birmingham, 243 Ala. 579,11 So.2d 363.
So considered, the doubt, if one, is resolved in favor of the appellee.
We find no error in the decree.
Affirmed.
FOSTER, LAWSON, and STAKELY, JJ., concur.