dissenting.
I respectfully dissent from the majority opinion. I would affirm the decision of the Administrative Hearing Commission that sales of food and drinks in cafeterias open only to employees and legitimate visitors in buildings not open to the public are not subject to the sales tax imposed pursuant to section 144.020.1(6). The express words of that section, as applicable here, provide that the tax is to be imposed only in a “place in which rooms, meals or drinks are regularly served to the public.”
There is no issue of fact. The cafeterias in question are located in buildings that are not open to the general public. The cafeterias only serve those workers in the buildings and their legitimate guests. The sole legal issue is quite simple. Is a cafeteria open only to employees and legitimate visitors, but not open to any others, a place where meals or drinks are regularly served to the “public”? In the ordinary use of that word, I do not think so.
The Commission found that the word “public” as used in section 144.020.1(6) should be given its ordinary dictionary meaning “the people as a whole: populace”. Merriam-Webster’s Collegiate Dictionary, 9H (10th Ed.1993). The majority does not challenge that the word “public” can be and is so defined. In fact, particularly pertinent here, Webster’s Third New International Dictionary, 1836 (1981), gives as one of its definitions of the word public, “a place accessible or visible to all members of the community”.
The majority instead relies upon three other definitions that recognize that the word “public” might also refer to a smaller subset. At most, this would merely establish an ambiguity as to which use of the word was meant. Interestingly, the entire quotation from Black’s Law Dictionary, 1227 (6th Ed.1990), one of the dictionary’s cited by the majority reads:
The whole body politic, or the aggregate of the citizens of a state, nation, or municipality. The inhabitants of a state, county, or community. In one sense, everybody, and accordingly the body of the people at large; the community at large, without reference to the geographical limits of any corporation like a city, town,- or country; the people. In *191another sense the word does not mean all the people, nor most of the people, nor very many of the people of a place, but so many of them as distinguishes them from a few. Accordingly, it has been defined or employed as meaning the inhabitants of a particular place; all the inhabitants of a particular place; the people of the neighborhood. Also, a part of the inhabitants of a community.
If there are two “senses” or meanings to the word “public”, then its use is ambiguous. In such a situation we are not free to adopt either meaning at our discretion. Instead, our rule of construction concerning ambiguity in the language of statutes imposing taxes has been clear and consistent. If an ambiguity exists in a statute imposing a tax it must be resolved in favor of the taxpayer. Moore Leasing, Inc. v. Director of Revenue, 869 S.W.2d 760, 761 (Mo. banc 1991); Ryder Student Transportation Services, Inc. v. Director of Revenue, 896 S.W.2d 683, 684, (Mo. banc 1995); Delta Air Lines, Inc. v. Director of Revenue, 908 S.W.2d 853, 356 (Mo. banc 1995); Old Warson Country Club v. Director of Revenue, 933 S.W.2d 400, 403 (Mo. banc 1996).