The following opinion was filed February 7, 1933:
Per Curiam.Upon a motion for rehearing the defendant seeks a reversal of the decision so far as it holds that gasoline filling stations are not included in the definition of chain-store business. The argument runs thus: Gasoline is within the classification of goods, wares, or merchandise. Gasoline is kept for sale at retail at a filling station. A filling station being a place where goods, wares, or merchandise are kept for sale at retail, it is a store or mercantile establishment. Therefore, if any person, firm, corporation, or association owns and operates two or more filling stations, they are engaged in the business of operating and maintaining two or more stores or mercantile establishments where goods, wares, or merchandise are sold or offered for sale at retail. There is also a lengthy argument with respect to the intent of the legislature.
There is no. difficulty in discovering the intent of the legislature. That is made plain by sec. 5 (2) of ch. 29, Laws of Special Session 1931. The legislature intended *458to require a license fee from every person, firm, corporation, or association engaged in the chain-store business. Sec. 5 (1) defines what in the mind of the legislature amounted to a chain store as follows:
“Every person, firm, corporation or association engaged in the business of operating or maintaining in this state under the same general management, supervision and ownership two or more stores or mercantile establishments where goods, wares or merchandise are sold or offered for sale at retail shall for the purposes of this section be deemed to be engaged in the chain-store business.”
The question is not what the legislature intended but what did it mean when it used the language quoted. If the legislature had intended to be all-inclusive, other appropriate language might have been used. In the definition it might have said, instead of a store or mercantile establishment, “a place,” and inserted after the word “merchandise” the words “of any kind,” and phrased the statute as follows :
“Every person, firm, corporation or association engaged in the business of operating or maintaining in this state under the same general management, supervision and ownership two or more places where goods, wares or merchandise of any kind are sold or offered for sale at retail shall for the purposes of this section be deemed to be engaged in the chain-store business.”
So phrased the statute would have included filling stations and many other establishments not within the terms of the act as we shall see.
The case is argued here as if the court had invented some rule of construction. The legislature itself has established rules for the construction of statutes. (Ch. 370.) The first rule laid down, sec. 370.01 (1), is as follows:
“All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning *459in the law shall be construed and understood according to such peculiar and appropriate meaning.”
There are many places where goods, wares, and merchandise of some kind are kept for sale which would not be understood, according to the common and approved usage of the language, to be stores or mercantile establishments. Among these might be enumerated tailor shops, shoe-shining parlors, wood yards, lumber yards, coal yards, brick yards, stone quarries, news stands, fruit stands, flower stands, cheese factories, restaurants, hotels, and no doubt others. On many farms farm produce is kept for sale at retail and many small manufacturers maintain retail departments as a part of their business. The same argument which supports the conclusion reached in the brief that a gasoline filling station is a store would support the conclusion that a brick yard is a store. It is a place where goods, wares, and merchandise are kept for sale at retail. No one could reasonably argue that the legislature used the term “store” or “mercantile establishment” in any such wide, comprehensive, and unrestricted sense. No one has yet pointed out that according to the common and approved usage of the language the term “store” or “mercantile establishment” has ever been applied to a gasoline filling station. In thus interpreting the language of the statute we follow the command of the legislature. This statutory provision with respect to construction merely adopts the rule universally applied by courts. We must hold that the legislature intended to use the terms in the sense in which the legislature itself says it uses them, that is, according to the common and approved usage of the language.
In this case it is not necessary to resort to other rules of construction. If we were to do so, however, the first one with which we would meet would be the rule, universal in its application, that a tax cannot be imposed without clear *460and express language for that purpose, and where ambiguity and doubt exist it must be resolved in favor of the person upon whom it is sought to impose the tax. Dean v. Charlton, 27 Wis. 522, and United States v. Merriam, 263 U. S. 179, 44 Sup. Ct. 69, 68 Lawy. Ed. 240. See 25 Ruling Case Law, p. 1092, § 307, and cases cited, particularly those in the supplemental annotations; also 59 Corp. Jur. p. 1131, "notes 85 and 86.
Considering this statute generally in connection with other statutes relating to taxes, the legislature may well have thought that having already imposed a sales tax of five cents a gallon upon the use of gasoline by the operators of motor vehicles, approximately thirty-three and one-third per cent, ad valorem, that the business was already bearing its fair share of the tax burden.
The foregoing matters are merely makeweights, the question being determined by the language used and the rule prescribed by the legislature for its interpretation.
Motion denied, without costs.