dissenting. This case presents a legal
question of singular importance: Whether certain merchandising methods of Troll Book Club, Inc. (Troll) above and beyond mere mail order solicitation provide a “substantial nexus” consistent with the Commerce Clause for purposes of state taxing authority. The case is important to Troll, a nationwide distributor of books and materials, and to the State of Arkansas. It is the first case to reach this court since Quill Corporation v. North Dakota, _U.S._, 112 S.Ct. 1904 (1992), was decided in May, 1992.
The problem with the case from our standpoint is that there are segments of the record which are susceptible of differing interpretations. The majority finds that the parties agreed in the trial court that unless the Department could prove “a formal agency relationship between the Teachers and Troll, the necessary conclusion by the trial court would be that Troll lacked the substantial nexus required by the federal Constitution in order to be taxed by Arkansas.” I am not persuaded that such was the understanding, as I interpret the Department’s position before the trial court and renewed in this de novo appeal, to be whether the Teachers were agents of Troll within the meaning of Ark. Code Ann. §§ 26-53-101 and 102(4) (1987). Section 26-53-101 imposes a use tax on vendors of personal property for use, storage or consumption in Arkansas. Section 26-53-102(4) defines a vendor as:
“Every person making sales of tangible personal property by mail order, by advertising, by agent, or by peddling . . . .soliciting, or taking orders . . . including all salesmen, solicitors, members, representatives, consignees, peddlers, or canvassers as agents of the dealers, distributors, consignors, supervisors, principals, or employers under whom they operate or from which they obtain the tangible personal property sold by them.” [My emphasis.]
By focusing entirely on the word “agent” and disregarding the statute as a whole, the trial court misconstrued the issue to be decided. “A statute must be analyzed in its entirety and meaning given to all portions.” Callahan v. Little Rock Distributing Co., 220 Ark. 443, 248 S.W.2d 297 (1952). “Where it was unnecessary to resort to the rule of ejusdem generis to ascertain legislative intent, the court was without power to disregard any of the terms of an act, but was required to give effect to all words, provisions, and terms employed.” Wiseman v. Affolter, 192 Ark. 509, 92 S.W.2d 388 (1936). And see Ledbetter v. Hall, 191 Ark. 791, 87 S.W.2d 996 (1936) (“Courts must give effect to every part of the act”); Kifer v. Liberty Mutual Ins. Co., 277 F.2d 1325 (C.A. Ark. 1985) (“Particular provision of a statute must be construed with reference to the statute as a whole, not in isolation.”) But even if one accepts the issue as being whether a “formal agency relationship” exists between the teachers and Troll, I believe the majority errs in its application of the law.
The majority notes that Troll sends teachers materials describing books offered for sale, which the teacher distributes to the students, sets a time limit for orders, gives direction for filling out the orders, accepts the orders and money, converts the individual orders to a master order, forwards the master order to Troll, receives and distributes the merchandise when the order is filled and earns a commission based on the amount of merchandise sold. The majority concludes that no agency exists because the foregoing activities by the teachers fall short of authorization and control. Up until the point at which the materials have merely been received by the teachers, the majority is correct.
However, once the teacher undertakes to participate by sending in the orders, the picture changes. At that point a contract between the teacher and Troll has been established. Troll has made an offer to the teacher which the teacher accepts by participating in the program. Once the teacher engages in the invited arrangement, an acceptance occurs and a contract of agency exists. Restatement of Contracts Second, §§ 1, 17, 50, 71 (1979); 1 Lord, Williston on Contracts, § 4:5 (1992); Restatement of Agency, 2d § 15 (1958), Comment a and b. Id. at 83.
a. Manifestation by principal. One becomes an agent only if another in some way indicates to him consent that he may act on the other’s account. This consent can be communicated by any of the means stated in Section 26, including acquiescence by the principal in a series of acts previously done by another as agent. A person is not an agent merely from the fact that he believes he had been authorized to act as agent for another or purports to act as such. It is only where the person acting believes reasonably, from conduct for which the other is responsible, that he is authorized so to act that there is an agency relation. The same consequences as if there were an agency may result, however, from the ratification by the person on whose account the act is purported to be done. See §§ 100-101.
b. Consent by agent. The agency relation exists only if the agent consents to it. A person may, by his sole act, create a power in another to act on his account, but since agency is a fiduciary relation, it can exist only if the other accepts the power. As in the case of contractual relations, the manifestation of the principal may be such that it is not necessary for the acceptance to be communicated to him. Thus, if the principal requests another to act for him with respect to a matter, and indicates that the other is to act without further communication and the other consents so to act, the relation of principal and agent exists. If, under such circumstances, the other does the requested act, it is inferred that he acts as agent unless he manifests that he does not so intend or unless the circumstances so indicate. This inference is strengthened if, being requested to act in the matter, the other does something which he could properly do only as an authorized agent.
Id. at 83.
These comments from the Restatement are applicable to the facts in this case and demonstrate that an agency relationship was established between Troll and the teachers.
Similarly, in Ragland v. Quality School Plan, Inc., 279 Ark. 256, 651 S.W.2d 447 (1983), this court considered marketing methods of Quality School to sell magazine subscriptions in Arkansas by students at various schools. The schools collected the subscription orders, retained a percentage, and submitted the balance of the subscription price to Quality. Quality maintained it was not the vendor within the meaning of our statute. We cited an Alabama case as “persuasive” — Quality School Plan, Inc. v. Alabama, 53 Ala. App. 418, cert. den. 293 Ala. 771 (1974):
There it was found that the students selling subscriptions were salesmen or agents. In the present case it was agreed to by the parties and subsequently held by the court, that magazine subscriptions were items of tangible personal property. Someone was the vendor and we think that of all the candidates the appellee best fits the statutory description of a vendor.
Hi H* H* Hí Hí H* H*
Considering the facts of the instant case we think our conclusion must be that the appellee, through its agents, made sales of tangible personal property within the State of Arkansas. [My emphasis.]
The majority opinion states that Scholastic Book Clubs Inc. v. State Board of Equalization, 207 Cal. App. 734, 255 Cal Rptr. 77 (Cal. App. Dist. 1989), involving an arrangement for selling books, is “almost identical” to this case. However, it finds that California law of agency allows the relationship of agency to be implied retroactively by ratification, whereas in Arkansas agency must be shown to exist by proof of authorization and control. The majority has misread the case. The Scholastic court found the agency relationship to be established in the first instance, finding the offer to have occurred when the bookseller sent its materials to the teachers, the acceptance occurring when the teachers participated in the program. Ratification was only seen as an alternative basis for the agency:
Appellant stresses the fact that the teachers have no initial obligation to act, and argues therefrom that they are not acting under its authority. We conclude otherwise. The teachers are certainly not acting under anyone else’s authority, and once they undertake to act, they are obviously acting under appellant’s authority, and certainly as appellant’s agents or representatives. “An agent is one who represents another, called the principal, in dealings with third persons.” (Civ. Code, § 2295.) The creation of an agency relationship is not dependent upon the existence of a written agreement. The relationship may be implied based on conduct and circumstances.
Thus, the decision in the Scholastic case fully supports the Department’s position here. I suggest that a contract for agency was formed and that the teachers were acting as representatives for Troll. Consequently, there is no question but that Troll is subject to the tax.
As to the matter of substantial nexus, in my estimation Troll’s merchandising operation in Arkansas falls plainly within the broad language of § 26-53-101, limited only by the Commerce Clause as measured by the factors established in National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U.S. 753, 87 S.Ct. 1389 (1967), Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076 (1977) and Quill Corporation v. North Dakota,_U.S._, 112 S.Ct. 1904 (1992).
Nor is a substantial nexus dependent upon a finding of an agency relationship. Indeed, even independent contractors have been held to constitute a substantial nexus for purposes of state taxing authority. See Scripto Inc. v. Carson, 362 U.S. 207, 80 S.Ct. 619 (1960) and Ragland v. Quality School Plan, Inc., supra. The most recent case on this subject is Quill Corporation v. North Dakota,____U.S.____, 112 S.Ct. 1904 (1992), where the Supreme Court reviewed National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U.S. 753, 87 S.Ct. 1389 (1967), and Complete Auto Transit, Inc. v. Brady 430 U.S. 274, 97 S.Ct. 1076 (1977), among others, in determining whether North Dakota’s use tax impinged on either the Commerce Clause, or the Due Process Clause, and distinguishing the substantial nexus requirements of the two provisions. The court reaffirmed the rule of Bellas Hess, drawing a “sharp distinction” between mail order sellers with “a physical presence” in the taxing state and those which do no more than communicate with customers in the state by mail or common carrier as part of a general interstate business. In this case, it is beyond serious contention that Troll engages in considerably more than mail order mailings and follow-up deliveries as in Quill. Troll capitalizes on the time, position and presence of Arkansas teachers to distribute, promote, gather, consolidate, collect, forward the orders, and to receive and distribute the merchandise, for all of which the teachers earn a commission.
In sum, Troll Book Club has chosen to avail itself of a market for its products consisting of Arkansas school children and their parents and reaches that market through the instrumentality of classroom teachers, a market producing annual sales of $2,700,000 to $3,000,000. It mails 170,000 brochures a year at monthly intervals to coincide with the school year to the teachers at the schools. The brochure contains thirty to forty color tear-outs which the participating teacher distributes to the students. The tear-outs include the order forms and there are forms for use of the students during the summer break. The teachers collect the money, in cash or checks payable generally to Troll, and the merchandise comes to the teacher, who then distributes it to the buyer. In addition to the numerous other activities mentioned, Troll maintains a toll free telephone available for use. That the children, and not the teachers, are Troll’s targeted consumer is plain. In light of those activities, far in excess of anything existing in Quill, I can see no sound reason why the sale of Troll’s merchandise by these methods should not be subject to a reasonable, nondiscriminatory tax in Arkansas. For those reasons I respectfully dissent.