(concurring specially) I concur in the conclusion that the measure' of the retailer’s liability to the state, under the provisions of Chapter 341, Laws of ND -1949 (Sales Tax Act) is two per cent of his gross' sales, less the exemptions specifically set forth in the act. Accordingly, I concur in the' affirmance of the order of the District Court and in the syllabus prepared by this Court.
I am also of the opinion that the former decisions of this Court (Jewel Tea Co. v. Tax Commissioner, 70 ND 229, 293 NW 386; Voss v. Gray, 70 ND 727, 298 NW 1; Isakson v. State, 70 ND 505, 296 NW 192; and Federal Land Bank v. Bismarck Lumber Co., 70 ND 607, 297 NW 42, 61 S Ct 1105, 313 US 556, 85 L ed 1518) holding that the sales tax, (Chapter 276 Laws of 1935 and subsequent reenactments thereof) was primarily a tax upon the consumer were correctly dfefcided.
When the legislature decided, in 1935, to levy a tax upon retail sales and to make that tax a tax upon the purchaser at such sales, it was confronted with a serious administrativé problem. Obviously, an attempt to collect the tax directly from each purchaser upon the total of his cumulative purchases would be administratively inefficient and wasteful, if not impossible. *788In the interest of administrative efficiency the legislature made it the duty of the sellers to collect the tax from the purchasers upon each sale and required the sellers to remit to the state, at stated intervals, the' amount of the tax collected. In the interest of simplicity and for the purpose of making the burden of additional bookkeeping as light as possible upon the sellers, the legislature provided that the measure of the sellers’ liability should be two per cent of their gross sales.
Section 6 of the 1935 Act provided, among other things, that “Agreements between completing retailers, or the adoption of appropriate rules and regulations by organizations of retailers to provide uniform methods for adding such tax or the average equivalent thereof, . . . which shall first have the approval of the Commissioner, are expressly authorized.”
Pursuant to this authorization the retailers met and with the approval of the Tax Commissioner agreed to a uniform method of adding the tax or the average equivalent thereof upon each retail sale. The method agreed to was a bracket system for charging the tax. Under this system the lowést sale taxed was a sale in the amount of fifteen cents upon which a tax of one cent was to be charged. An additional tax of one cent was to be added for each fifty cents- increase in the sales price above the base amount of fifteen cents. Prom the time the 1935 Act went into effect on May 1, 1935, until'July 1, 1949, the administrative interpretation of the 1935 Act and the subsequent enactments thereof, has been that it was the duty of retailers to collect the tax from the purchasers at retail sales, according to the approved schedule and that the measure of the retailers’ liability for the tax collected was. two per cent of their gross sales. Such an interpretation is consistent with the holdings of this court that the tax levied was a tax on the purchaser. The seeming paradox that exists in saying that the collecting agent is liable, not for what he collects, but. for two per cent of his gross sales, vanishes if the two are substantially equal to each other. Certainly the' legislative acts from 1935 to 1947 intended that the two should be substantially the same, and conferred upon the retailers the right, with the approval of the Tax Commissioner, *789to adopt methods which would secure that result. Presumptively the method adopted did secure results which, at least, fully recompensed the retailer, for in so far as I know there were no complaints from retailers during the period the schedule they agreed to, was in force.
In 1949, however, the legislature incorporated into the reenactment of the sales tax its own schedule of the amount of tax which the retailer might collect from the purchaser. ■ Under this schedule the minimum sale upon which a one cent tax might be charged was a sale in the amount of twenty-five cents. An additional tax of one cent was allowed for each fifty cents increase in sale price above the base price of twenty-five cents. All other parts of the 1949 Act are identical with the cognate sections of prior sales tax acts.
There is nothing in the 1949 Act which indicates a legislative intent to change the measure of the retailers’ liability to the state. Presumptively the legislature was aware that the administrative interpretation of prior acts, an interpretation of fourteen years duration, was thht the liability of the .retailer was two per cent of the gross sales. In the light of this circumstance I do not see how an intent to change the measure of a retailer’s liability can he inferred from the adoption of a schedule that might not in some instances permit the retailer to collect the full amount which he must pay to the state. It may he that in such a case the tax levied is in part a tax on the retailer, hut if it is, it is one which it was within the power of the legislature to levy.
Judge G-rimson has authorized me to say that he concurs in the views expressed in this opinion.