dissenting.
Section 536.087.11 allows attorneys’ fees and expenses in an action against the state “unless the court ... finds that the position of the state was substantially justified-” I believe that this Court’s decision in Greenbriar Hills Country Club v. Director of Revenue, 935 S.W.2d 36 (Mo. banc 1996), Greenbriar Hills I, which exempted the country club’s retail charges for meals and drinks from sales tax as not being sold to the public, was incorrect. Accordingly, the state’s position was substantially justified. I respectfully dissent.
Greenbriar Hills I purports to find, within the same section of the sales tax statute, a “conflict” that is resolved by deferring to the more specific of the two subdivisions that allegedly are in conflict. The pertinent portions of the statute, section 144.020.1, are as follows:
1. A tax is hereby levied and imposed upon all sellers for the privilege of engaging in the business of selling tangible personal property or rendering taxable service at retail in this state. The rate of tax shall be as follows:
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(2) A tax equivalent to four percent of the amount paid for admission and seating accommodations, or fees paid to, or in any place of amusement, entertainment or recreation, games and athletic events;
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(6) A tax equivalent to four percent on the amount of sales or charges for all rooms, meals and drinks furnished at *360any hotel, motel, tavern, inn, restaurant, eating house, drugstore, dining ear, tourist cabin, tourist camp or other place in which rooms, meals or drinks are regularly served to the public.
The alleged conflict was between subdivision (2), which levies a tax on “fees paid to, or in any place of amusement” — which undoubtedly describes a country club — and subdivision (6), which imposes a sales tax on the amount of sales or charges for meals and drinks at a place where meals or drinks “are regularly served to the public.” St. Louis Country Club v. Administrative Hearing Com’n, 657 S.W.2d 614, 617 (Mo. banc 1983). Finding that subdivision (6) is more specific than subdivision (2), the Court held that such sales are not subject to the tax.
The Court, in Greenbriar Hills I, relied on the rule of statutory construction that states “when the subject matter is addressed in general terms in one statute and in specific terms in another, the more specific controls over the more general” in making its determination that country club sales are not subject to sales tax. 935 S.W.2d 36, 38 (Mo. banc 1996). It cited Terminal R.R. Assn, of St. Louis v. City of Brentwood, 360 Mo. 777, 230 S.W.2d 768, 769 (1950), for its use of the rule to what it found to be two conflicting subdivisions within one statute. Though Terminal R.R. Assn, of St. Louis stands for such usage, the plain language of the rule seems logically to limit its use to when two separate statutes conflict. Such a case could arise when one statute is enacted at a later date than another and the later one is more specific. When the statute that deals with the subject in a more definite way is later in time to the more general statute, the later, more specific statute is regarded as a qualification or exception to the prior general statute. State ex rel. McKittrick v. Carolene Products Co., 346 Mo. 1049, 144 S.W.2d 153, 156 (Mo. banc 1940). This rule of construction, though in rare instances applied to conflicting subsections within the same statute, should be used sparingly, and only after the subsections have been thoroughly reviewed and a conflict is clearly established.
In the present statute there is no clear conflict. There is no question that the country club sales are sales at retail. City of Springfield v. Director of Revenue, 659 S.W.2d 782, 785 (Mo. banc 1983); St. Louis Country Club, 657 S.W.2d at 617-19. But are such sales to the public? But just because the country club is open only to its own members, and presumably to their nonmember guests, does that exclude such members and guests as members of the public? Where, after all, does a country club get its members except from the public?
The unsoundness of the Court’s conclusion can be illustrated by hypothesizing the existence of a store that sells merchandise at retail, but only to members of its “club.” A member of the public can become a member of the “club” by filling out an application and paying a membership fee. Does that mean that the club is private and the sales to its members are not subject to the sales tax for retail sales?
Perhaps the difference between the hypothetical club and a country club is that the latter may have a more elaborate process for choosing its members. Prospective members might be excluded on grounds of occupational status, race, religion, ethnicity, inadequacy or recency of wealth, or other factors protected by freedom of association. That is an interesting distinction, to be sure, but not a distinction that is satisfactory in interpreting sales tax statutes.
For purposes of anti-discrimination laws, “places of public accommodation” are *361elaborately defined in section 213.010.2 Quite specifically, in the statute that forbids discrimination in places of public accommodation, section 213.065 contains a specific exclusion for private clubs. Despite the definition in section 213.010, the exclusion explicitly states that the anti-discrimination provisions as to public accommodations “shall not apply to a private club, a place of accommodation owned by or operated on behalf of a religious corporation, association or society, or other establishment which is not in fact open to the public.... ” The language just quoted either is unnecessary or there is something about the word “public” that does not necessarily exclude a “private” club.
If there is to be an exclusion from sales tax for laws for private clubs, the exclusion should be as explicit as that in the anti-discrimination laws. What this Court has done in Greenbriar Hills I is to conclude that sales to the “public” do not include sales to a club’s members. The Court’s decision assumes there are two categories, public and private, and that they are mutually exclusive. From this supposed conflict the Court concludes that the tax on fees charged by places of amusement or recreation, imposed by section 144.020.1(2), is less specific and thus does not apply.
(a) Any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
(b) Any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment;
(c) Any gasoline station, including all facilities located on the premises of such gasoline station and made available to the patrons thereof;
(d) Any motion picture house, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment;
(e) Any public facility owned, operated, or managed by or on behalf of this state or any agency or subdivision thereof, or any public corporation; and any such facility supported in whole or in part by public funds;
(f) Any establishment which is physically located within the premises of any establishment otherwise covered by this section or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment;
When the sales tax law is interpreted to favor private clubs, it disfavors patrons who buy meals at retail at non-favored establishments. The treatment for sales tax purposes should be the same whether one eats at the country club or a local diner. We should not infer that the legislature, in enacting section 144.020.1, intended to shift the burden of taxation from country club members to patrons of diners.
Even if country clubs are excluded from section 144.020.1(6) as not selling to the “public,” there is no conflict with section 144.020.1(2) which taxes places of amusement or recreation. The real question is whether country clubs are covered in any part of the section, and they are clearly covered in section 144.020.1(2), and their sales are subject to the sales tax.
I believe the Court should revisit and overrule its decision in Greenbriar Hills I and its progeny, Westwood Country Club *362v. Director of Revenue, 6 S.W.3d 885 (Mo. banc 1999), which I wrote and followed the error of Greenbriar Hills I — an error that should not be perpetuated. I believe that the state’s position in this litigation is substantially justified, and I would not compound our error by awarding attorneys’ fees. I respectfully dissent.
. All statutory references are to RSMo 2000, unless otherwise indicated.
. "Places of public accommodation", all places or businesses offering or holding out to the general public, goods, services, privileges, facilities, advantages or accommodations for the peace, comfort, health, welfare and safety of the general public or such public places providing food, shelter, recreation and amusement, including, but not limited to: