L & R EGG CO. v. Director of Revenue

HOLSTEIN, Judge,

dissenting.

I respectfully dissent.

I believe the record clearly shows that the egg which leaves appellant’s factory has undergone a “substantial transformation in quality and adaptability and [is] an end product quite different from the original.” I would further find that the egg coming from appellant’s processing machine has a new use different from its original use. That is to say, it may be sold to consumers. § 196.311, RSMo 1986, et seq.

This Court has determined that the clear legislative purpose for the enactment of § 144.030.2(5) was to encourage economic development. West Lake Quarry and Material Co., Inc. v. Schaffner, 451 S.W.2d 140, 142 (Mo.1970). Once the clear legislative intent is determined, that purpose should not be thwarted by artificial rules of narrow construction. Lastra v. Intercontinental Investments Co., Inc., 745 S.W.2d 703, 705 (Mo.App.1987).

From time immemorial, hens have been thought of as the manufacturer — the exclusive manufacturer of eggs. But, despite the hen’s best efforts, she has been unable to manufacture eggs that are uniform in size, color, and quality. At the risk of sounding indelicate, the hen’s method of delivery does not always result in the most sanitary or aesthetically pleasing product.

The lawmakers and regulators have responded by damning the sale of the hen’s random and unclean product from the grocery shelf. § 196.311, et seq., RSMo 1986; 2 CSR 30-36.010, et seq.; 2 CSR 90-36.010, et seq.; and 21 U.S.C. sec. 1031, et seq. (1984). No expertise in preventive medicine is necessary to understand that if eggs remain unwashed, they will likely come into close contact with other foods or the hands of the food preparer. The potential for *628contamination is of sufficient magnitude to justify regulation by both the state and federal government. In addition, consumers have come to believe that eggs should be free of the external contaminants to which eggs are exposed by the uncircum-spect hen or the rogue rooster. The egg, as it is manufactured by the hen, is incomplete and requires additional processing to satisfy the law, the regulator and the consumer.

The appellant has provided the equipment to complete what the hen began. The result is a wholesome, sanitary, uniform and readily marketable product which satisfies the demands of both the consumer and the sovereign. The change in the egg effected by appellant’s machine may seem modest; but without the modification the egg which comes from the farm would be no more saleable in today’s marketplace than would water freshly drawn from a farm well, beef just butchered in a barn, or milk just taken from the cow.

The eases construing the meaning of manufacturing as the word is used in § 144.030.2(5) appear to be in disarray; but on closer examination the cases may be separated into two categories. In those cases in which a machine is used as part of the cycle of repair, restoration or cleaning after the finished product has reached the consumer, the machine is held not to be manufacturing equipment. Unitog Rental Services, Inc. v. Director of Revenue, 779 S.W.2d 568 (Mo. banc 1989); State ex rel. AMF v. Spradling, 518 S.W.2d 58 (Mo.1974).1 In contrast, when a machine modifies a raw product before reaching the consumer so that the product has a use and value it did not have prior to the modification, the machine is considered manufacturing equipment. Jackson Excavating Co. v. Administrative Hearing Commission, 646 S.W.2d 48 (Mo.1983); Heidelberg Central, Inc. v. Director, Dept. of Revenue, 476 S.W.2d 502 (Mo.1972); West Lake Quarry and Material Co., Inc. v. Schaffner, 451 S.W.2d at 140. Appellant’s machine clearly falls into the second category.

The majority distinguishes this case from Jackson because a machine which purifies water “creates” water meeting legal standards of potability. No one could seriously contend that the machine in Jackson created water. The machine merely removed impurities and added chemicals so the water would meet a regulatory standard. The machine here also removes impurities and adds mineral oil so the eggs will meet government standards. The fact that impurities are removed from outside the egg, rather than inside, is not a meaningful basis of distinction. The holding in Jackson is applicable here.

In Heidelberg the taxpayer’s machine printed ink onto paper. In West Lake Quarry the machine crushed large rocks into small rocks. Neither of those cases involved any complex alchemy which would distinguish them from this case. If those machines are treated as manufacturing equipment, no reason exists that appellant’s machine should be treated differently-

From all the varying definitions of manufacturing noted by the majority, it is apparent that today’s decision does not put the question to rest; we will see it again. As the majority opinion notes, the meaning of the word “manufacturing” has defied convenient interpretation. I would urge the legislature to step in and make the meaning of the exemption clear. Perhaps that will terminate the case-by-case method of defining the word. In the meantime, I would reverse the decision of the Administrative Hearing Commission and construe the exemption for manufacturing equipment to include appellant’s machine.

. The AMF case involved a machine which extruded raw rubber for application to used tires in a tire recapping process. I find the result in that case highly questionable and I have some trouble placing the case in either of the two categories I have identified. However, the correctness of AMF is not before us.