The only issue involved on this appeal is: Are carpeting and draperies, purchased for use in rental apartments, subject to the selective retail sales and use tax, secs. 77.52 and 77.53, Stats. 1967?
In two recent cases, this court has construed provisions of the selective sales tax statutes. In these cases
". . . `. . . While it is to be conceded that if there is any ambiguity in a taxing statute, any doubt shall be resolved in favor of the taxpayer, Wadhams Oil Co. v. State (1933), 210 Wis. 448, 460, 246 N. W. 689, a court is not to search for doubt in an endeavor to defeat an obvious legislative intention.'"
However, when statutory language is clear and unambiguous,
"`. . . no judicial rule of construction is permitted, and the court must arrive at the intention of the legislature by giving the language its ordinary and accepted meaning.' . . ."
Therefore, as stated by this court in National Amusement Co. v. Department of Revenue,
"`A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses.' State ex rel. Neelen v. Lucas (1964), 24 Wis.2d 262, 267, 128 N.W.2d 425, citing State ex rel. West Allis v. Dieringer (1957), 275 Wis. 208, 218, 81 N.W.2d 533."
However, when a case comes before this court it is obvious that people disagree as to the meaning to be given to a statute. This is not controlling. The court must determine whether "well-informed persons" could have become confused.
Sec. 77.52 (1) (a) 9, Stats. 1967, provided that the selective sales tax applied to the sale, lease or rental of:
"9. Household furniture, furnishings, floor coverings, major and small appliances, power tools, outdoor garden and lawn equipment and tools; office furniture, furnishings, equipment, machines, appliances and floor coverings; commercial food service machines and equipment; tavern, restaurant, fountain and store furniture, furnishings, equipment, machines, appliances and floor coverings; except that tanks, pumps, compressors and equipment for retail marketing of petroleum products are exempt from tax under this subchapter; . . ."
Sec. 77.53 (1) provided that an excise tax was levied and imposed on the storage, use or other consumption in this state of the taxable tangible personal property described in sec. 77.52 purchased from any retailer for storage, use or other consumption within this state. A retailer was defined, as pertinent here, for purposes of the selective sales and use tax as:
"(a) Every seller who makes any retail sale of taxable tangible personal property, and every person engaged in the business of making retail sales at auction of taxable tangible personal property owned by the person or others.
"(b) Every person engaged in the business of making sales of taxable tangible personal property for storage, use or consumption or in the business of making sales at auction of taxable tangible personal property owned by the person or others for storage, use or other consumption."
The appellant also points out that, in order to be subject to a use tax, the property must be sold by a retailer as defined in sec. 77.51, Stats. 1967. The selective sales and use tax statutes were amended in 1969. By ch. 154, sec. 217 of the Laws of 1969, subch. III of ch. 77 was changed to a "general" sales and use tax. There were extensive changes in the language of the statutes involved in this appeal. The definition of "retailer" in sec. 77.51 was amended to read:
"(a) Every seller who makes any sale of tangible personal property or taxable service.
"(am) any person making any retail sale of a motor vehicle, aircraft or boat registered, or required to be registered, under the laws of this state.
"(b) Every person engaged in the business of making sales of tangible personal property for storage, use or
". . .
"(n) A person selling household furniture, furnishings, equipment, appliances or other items of tangible personal property to a landlord for use by tenants in leased or rented living quarters."
The appellant argues that because the 1969 amendment added sec. 77.51 (7) (n), which specifically includes persons selling household furnishings to landlords for use by tenants in the definition of "retailer," these persons were not "retailers" under the 1967 statute. The appellant cites several cases in support of the principle that where an amendment adds language to a statute it is presumed that the legislature intended to include what was previously omitted.
Sutherland in his treatise on statutory construction acknowledges this presumption.
"The courts have declared that the mere fact that the legislature enacts an amendment indicates that it thereby intended to change the original act by creating a new right or withdrawing an existing one. Therefore, any material change in the language of the original act is presumed to indicate a change in legal rights. . . ."
However, Sutherland goes on to explain:
"Although a presumption of change in legal rights is probably reasonable in that an amendment is more frequently used to add or take a provision from a law than to interpret it, the fact of amendment by itself does not indicate whether the change is of substance or form— whether a right is added to or taken from the original act, or whether a provision in the original act is merely
In Prudential Building & Loan Asso. v. City of Louisville
"Retailer" was always defined in the broadest terms in both the 1967 statute and the present statute. A "retailer" under both statutes includes every seller who makes any sale of taxable tangible property. Thus any further enumeration of specific persons who are included within the definition of "retailer" must serve the purpose of making the statute more detailed and specific and removing all doubt as to its coverage. If the additional subsections were not enumerated they would certainly still be covered under the general broad definition of "retailer" if they were sellers of goods subject to taxation under the statutes. We conclude, therefore, from the
The appellant contends that the words in a statute should be given their ordinary and accepted meaning. Of course. However, we disagree with the appellant's statement that the ordinary and accepted meaning of the words "household" and "commercial" has been established by this court in its decision in Estate of Bosse.
"It must be conceded that the articles in question are articles of household furniture—chairs, tables, beds, dishes, etc. The statute is clear and definite. No conditions are attached. The only limitation is in the language `the household furniture' of the deceased. `Household,' as used herein, would appear to limit and qualify `furniture' in that it would describe furniture used by the deceased for his convenience and comfort; in other words, `household furniture' negatives furniture owned and used for commercial purposes. It is not contended that the furniture in question was used by anyone but the deceased. It was owned by him and used for his convenience and comfort. . . ."
The appellant also relies on the case of Allen v. Multnomah County
"When the legislative intent has been ascertained, it should be given effect, even although, in doing so, the literal meaning of the words used is not followed."
It is clear that the Oregon court was not saying that the term "household furniture" could never be applied to that placed by the owner in rental units for use by tenants, but that a literal and broad interpretation in the context of this particular exemption statute would lead to absurd results contrary to the legislative policy behind these particular exemptions. The court found that the policy of the legislature was to exempt the household property actually used by the taxpayer in his own household, thus placing all households in an equal position. The court determined this policy would not be served by subsidizing the property of the plaintiff which was being used by him to produce income. The court found that the
Thus, neither Bosse nor Multnomah County control the present question. Each case determined the meaning of the words "household furniture" in the context of particular statutes. The words of sec. 77.52 (1) (a) 9, Stats. 1967, "household furniture, furnishings, floor coverings," etc., are not ambiguous. There is no indication whatsoever that giving a literal interpretation to the words violates any policy of the legislature nor does the application of the tax to the draperies and carpeting involved in this case violate the plain and ordinary meaning of the words "household furnishings," for the items of property involved are being used for domestic purposes by the tenants of the appellant.
By the Court.—Judgment affirmed.