(dissenting).
The majority conclusion is that the city of Sedalia, Mo., had the power, under the Missouri laws and decisions, to lay its tax on certain gasoline vendors in such a way as to get a revenue of so much a gallon in respect of sales of gasoline carried by such vendors to the territory outside the city, as well as in respect to their sales of gasoline inside the city. That is, the city could require Lhe oil companies operating within its limits to pay a tax at a cent or half a cent per gallon sold by them, even though they trucked the gasoline many miles away from the city and there delivered it and consummated the sales. The decision is also that the ordinance in controversy herein, properly construed, did impose such a tax in respect to the gasoline sales of the appellant oil companies outside of the city; that the enormous business carried by the companies from the city in fleets of motortrucks for seven years was all subject to the tax, and that the city may now maintain actions at law to recover the same. I do not concur.
I do agree that under the laws and decisions of Missouri, set out in the majority opinion, the city had power to impose and collect the tax in respect of each gaüon of gasoline sold inside the city, but I doubt the power to extend this particular kind of a tax to gasoline sales in outside territory. Numerous cases are referred to, holding that a city may impose an occupation tax upon its inhabitants in respect of the total volume of business done by them, even though part of the business extends outside of the city. But, although the tax involved here is in the form of an occupation tax and is ostensibly laid upon the occupation and business, it is really a sales tax and distinguishable from those occupation taxes considered in the eases relied on. Here wo have a tax at so much per gal-*762Ion of gasoline sold, and the amount is a very substantial part of the selling price. It is apparent that in the successful operation of this tax as a revenue producer for the city, it is contemplated that the oil companies should pass the tax on to their customers at the time of sale. Then, as required by the ordinance, they ' must make quarterly accounting of the sales and pay the money in to the city. The tax is different in kind from the occupation taxes which are intended to be absorbed in the overhead of a business. As to this gasoline tax, the oil companies are, to practical intents, the agencies through which the city collects from the real taxpayer, the gasoline consumer, upon whom the tax is intended to fall directly. Such a tax is not, and is not intended to he, a mere expense upon the oil companies incident to the privilege of doing business in the city. It is intended to be put as a direct burden upon those who consume the gasoline. Therefore, I doubt the power of the city to raise revenue from outside its own confines in that way. Though I do not rest my dissent upon the point, I raise it in limine, because, if a placard should be exhibited at an oil station many miles out in the country, “Gasoline 10 cents; Federal Tax 1 cent; State Tax 2 cents; City of Sedalia Tax 1 cent,” I think the point would suggest itself to'most passers-by. It smacks of the baronial Politik of the Middle Ages.
No such situation ever arose, and no such placards were exhibited out in the country. The city passed its ordinance to raise a half a cent a gallon on sales of gasoline in 1924 and in 1928 increased the amount to a cent a gallon. It is apparent from the facts pleaded by the city in these bills in equity against the oil companies that both the oil companies and the city authorities construed the ordinance to mean that the tax was only collectible in respect of the sales of gasoline made inside the city. It conclusively appears that s#eh was the understanding of the ordinance on the part of the city council itself, because in the amending ordinance when the Council raised the tax rate it described the original ordinance as the “Ordinance regulating the amount of tax to be paid on gasoline sold within the City of Sedalia, Missouri.” As to the oil companies there is no claim that they ever took into account or tried to pass on the city tax to their customers outside the city. They never rendered account to the city of their sales in the outside territory and the facts alleged are compatible with complete acquiescence on the city’s part and perfect mutuality of understanding for seven'years; that is, from the passage of the ordinance in 1924 to the filing of these bills-in 1931, it was the settled interpretation of the.ordinance that the tax did not apply to gasoline sold outside the city.
Turning to the taxing ordinance, my opinion is that the city never intended to tax the outside business. The ordinance and amendment are appended in full in the margin,1 and the wording is very ambiguous.
*763In section 1 the description of the business to be licensed is “tbe business of selling gasoline and transporting the same in barrels,” etc. The ultimate total of all the efforts of the companies would fall within the description “business of selling gasoline.” They have no business of transporting, as such. But tbe phrase used is confusing in that it fails to exactly specify what the relationship must be between the transportation and the selling of any particular gallon of gasoline in order to give rise to the tax.
Neither in section 2, where the amount of tax is specified, nor anywhere else in the body of the ordinance, does it say whether tbe tax is payable in respect of gasoline sold or in respect of gasoline which is transported or in respect of gasoline which is both sold and transported, and nowhere in the body of the ordinance is anything said about where the gasoline must be sold in order to make the tax applicable.
In section 3 there is provision for the accounting to be made quarterly by the companies, and the crux of the case is whether the companies’ business outside of the city is intended to be included in the accounting; no light being found in this section.
As to the exception in section 6, we have many pages of briefs about what that may mean. It is patently ambiguous, and the ambiguity ought not upon any analysis to be worked out to the prejudice of the taxpayer.
I find the most light on the real meaning and intent of the ordinance in its title. Tlie title says that tbe ordinance provides “for licensing corporations engaged in the business of selling gasoline and transporting the same through the streets of the city of Sedalia, Missouri.” There is not another word elsewhere in the ordinance stating where the business has to be done to be taxable. The title then goes on to say that the ordinance provides “a tax of one half a cent per gallon on all gasoline so sold.”
The words “on all gasoline so sold” present the only specific declaration within the four corners of the enactment that the tax is in respect to sales, and I think that the words “tax' on gasoline so sold,” taken in connection with the other words, “business of selling and transporting through the streets of Sedalia,” carry implications conclusive in favor of the oil companies here. That is, the clauses together mean that a particular gasoline selling business is taxable when the business is consummated by the selling- and transportation of the gasoline through the city streets; but, tbe business which consists in hauling and selling gasoline outside and beyond the city streets is a different business, outside the purview of the ordinance. Gasoline transported and sold out on the state highways is not “so sold” within the quoted language; that is, the selling, the consummation of the whole effort of the business, is not finally effected by transportation through the city streets. Manifestly, the licensing of the oil companies by Sedalia and the imposition of this particular tax was not to cover and affect all the gasoline business of these oil companies. Presumably they recover the crude oil from subterranean lakes; they take that to refineries and refine gasoline; they effect transportation upon the high seas and through pipe lines and over railroads and highways; and there is but one phase of their business within tbe scope of tbe license and taxing ordinance, and that is the selling business consummated by transportation through the city streets — city sales.
Whether such is the true construction of the ordinance or not, at least the equity bills are clear that the conclusion is the one asserted to be right by tbe city council itself and applied in the administration of tbe ordinance throughout its existence. The declaration of the city council in 1928 that “said ordinance (was one) regulating the amount of tax to he paid on gasoline sold within the City of Sedalia, Mo.,” comes directly within the language of Chief Justice Marshall in Alexander v. Alexandria, 5 Craneh, 1, 8, 3 L. *764Ed. 19, when he said: “If a subsequent act on the same subject affords complete demonstration of the legislative sense of its own language, the rule which has been stated, requiring that the subsequent should be incorporated into the foregoing act, is a direction to courts in expounding the provisions of the law.” The subsequent declaration of the city council does afford complete demonstration of the legislative sense of its own language, and on that ground no different sense should be attributed now when such destructive consequences inevitably result.
Also, it is elemental that, when a law involves administrative functions which necessarily reflect the construction put upon! the law by those charged with administration, such administrative interpretation has great weight with the courts; and, if acted upon for a number of years, will not be disturbed except for very cogent reasons. Logan v. Davis, 233 U. S. 613, 34 S. Ct. 685, 58 L. Ed. 1121. As under this ordinance the accounting by the companies had to be rendered quarterly and the very first accounting would disclose that the sales outside the city were being excluded, there can be no reasonable doubt that there was interpretation of the statute; construction that was acted upon and cannot be upset at this late day.
These doctrines bear with peculiar force upon such a sales tax as is here involved. If a merchant is going to have to account for such a sales tax as this one; he must know about it before he makes his sales, or his ruin is certain. It is possible that the penny a gallon would equal or even exceed the total net profit on the whole enterprise involved.
I conclude that the ordinance properly construed did not require the companies to render accounting of their outside sales; that the facts alleged show legislative and administrative construction which there are no sufficient reasons to depart from; and that the suits should have been (as they were) dismissed.
Ordinance No. 2417 entitled:
An Ordinance providing for ttie Licensing of persons, firms or corporations engaged in the business of selling gasoline and transporting the same through the streets of the City of Sedalia, Missouri, and providing a tax of onc-half of one cent per gallon on all gasoline so sold, and pro- ' viding penalties for the violation of said Ordinance.
Be It Ordained by the Council of the City of Sedalia, Missouri, as follows:
Section 3L No person, firm or corporation shall engage in, carry on or conduct the business of selling gasoline and transporting the same in barrels, tank wagons or other containers having a capacity of more than five (5) gallons without first having obtained a license to do so from the, City Clerk.
Section 2. Every person, firm or corporation engaged in the business defined in Section 1 hereof shall pay the City Treasurer a quarter-annual license tax of one-half of one cent per gallon on or before the 15th day of December, March, June and September of each year for the preceding period of three months and ending as aforesaid.
Section 3. Every person, firm, or corporation, engaged in the business defined in Section 1 hereof shall keep an accurate record of all sales of gasoline, showing the number of gallons sold, and shall, on or before the 15th day of December, March, June and September of each year, file with the City Clerk a sworn statement of the number of gallons of gasoline sold. The City Clerk or his duly authorized deputy shall be and is hereby authorized to investigate the correctness and accuracy of the returns and reports required for that purpose shall have access at all reasonable times to the books, documents and reports bearing 'on the number of gallons of gasoline purchased and sold.
Section 4. Every person, firm or corporation refusing or neglecting to make the report or return provided for in Section 3 hereof, or who shall make a false affidavit or return or interfere with the City Clerk or his deputy in the performance of their duties, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than Ten Dollars ($10.00) nor more than One Hundred Dollars ($100.00).
Section 5. Any person, firm or corporation engaging in the business as defined in Section 1 hereof and refusing or failing to pay the license tax provided for in Section 2 hereof as provided in Section 2, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than Ten Dollars ($10.00) nor more than One Hundred Dollars ($100.00), and each day of delay* in the payment of said license tax shall be a separate offense.
Section 6. The provisions of this Ordinance shall not apply to gasoline shipped out of this City to other cities, towns and villages by the persons subject *763to tbo payment of tlie license tax provided for in Section 2 hereof.
Section 7. This ordinance shall become effective and be in force from and after its passage and approval.
Ordinance No. 2886 entitled:
An Ordinance repealing Section 2 of Ordinance Number 2417 and enacting a new section in lieu thereof to bo known as Section 2:
Be It Ordained by the Council of the City of Sedalia, Missouri, as follows:
Section 1. That Section 2 of Ordinance Number 241.7, passed by the Council of the City • of Sedalia, Missouri, on the 1st day of September, 1924, and approved by the Mayor of said City on the 1st day of September, 1924, said Ordinance regulating the amount of tax to be paid on gasoline sold within the City of Sedalia, Mo., be and the same is hereby repealed and a new Section enacted in lieu thereof, said new section to be known as Section 2, to read as follows:
Section 2. Every person, firm or corporation en- . gaged in the business of as defined in Section 1 of Ordinance Number 2417, shall pay the City Treasurer a quarter-annual license tax of one cent per gallon on or before the 15th day of December, March, June and September of each year for the preceding period of three months and ending on the 1st day of December, March, June and September.
Section S. This Ordinance will take effect and be in force from and after its passage and approval.