Robert S. CALVERT, Comptroller of Public Accounts of Texas, et al., Petitioners, v. CANTEEN COMPANY et al., Respondents, 371 S.W.2d 556

STEAKLEY, Justice. Respondents, Canteen Company et al., are in the business of selling tangible personal property at retail from mechanical vending machines. They sell through the machines separate items with a sales price of twenty-four cents or less. The items consist generally of candy, chewing gum, coffee, and soft drinks. The Comptroller of Public Accounts, the principal petitioner, required respondents to pay a two per ■cent tax on the total receipts from their sales. Respondents did so under protest and fded claims for refund. The refunds were disallowed and respondents brought this suit as a class action.

The judgment of the trial court ordering the refunds was affirmed by the Court of Civil Appeals, with one Justice dissenting. Calvert v. Canteen Company, 365 S.W.2d 662. We reverse the judgments of the courts below and render judgment for petitioners. The tax statute is

Article 20.01 et seq., Vernon’s Annotated Texas Statutes, Tax-•Gen., V.A.T.S., known as the Limited .Sales, Excise and Use Tax Act, Acts 57th Leg., 1st C.S., 1961, Ch. 24, p. 71. The pertinent provisions of the statute are as follows: “Art. 20.02. Imposition of Limited Sales Tax. “There is hereby imposed upon each separate sale at retail of tangible personal property made within this State a limited sales tax at the rate of two per cent (2%) of the sale price of each item or

article of tangible personal property when sold at retail in this State.”

Article 20.01(L) (1): “‘Sales Price’ •means the total amount for which tangible personal property is sold, valued in money, whether paid in money or otherwise,” ■(with deductions not relevant here).

Article 20.02(A): “Method of Collection and Rate of Limited Sales Tax. The tax hereby imposed shall be collected by the retailer from the consumer. “

(1) The tax shall be as follows and shall be collected by using the following bracket system formula on each retail sale: Amount Tax $ .01 to $ .24 No Tax .25 to .74 $ .01 .75 to 1.24 .02 1.25 to 1.74 .03 1.75 to 2.24 .04 Provided, further, that for each additional fifty cents (50‡) of purchase, or fraction thereof, one cent (l<

f) limited sales tax shall be collected thereon.” * * * * * ⅜ “Art. 20.05. Return and Payments * * * “(

B) Method Retailer is to Use in Computing Tax. The limited sales tax levied under

Article 20.02 hereof shall be computed and paid to the Comptroller on the basis of two percent (2%) of all receipts from the total sales of such tangible personal property sold by such retailer under said Article.”

Article 20.01(D) (1): “ ‘Receipts’ means the total amount of the sale or lease or rental price, as the case may be, of the retail sales of retailers, valued in money, whether received in money or otherwise,” (without enumerated deductions not relevant here). Respondents concede that they do not come within the specific exemptions otherwise authorized by

Article 20.04. Their contention is that

Article 20.02(

A) is “the tax imposition article, the tax levying article, the rate of tax article, the tax collection article, and designates the subject matter of the tax.” Crucial to respondents’ position is their insistence, predicated on the bracket formula of

Article 20.02(A), that no tax is imposed on any transaction from one cent to twenty-four cents. They argue that the burden of paying the tax is solely on the consumer; that the statute contemplates that the retailer will collect from the consumer the tax of two per cent of all receipts from total sales which

Article 20.05(

B) requires the retailer to pay to the Comptroller; and that if no part of the tax is collected from the consumer there is no tax. Respondents rely principally on the case of Winslow-Spacarb, Inc. v. Evatt, 144 Ohio St. 471, 59 N.E.2d 924. The Ohio statute, Gen.C. 5546-2 provided that “If the price is less than nine cents, no tax shall be imposed.” The Supreme Court of Ohio held that taxpayers operating devices selling a single five cent drink were not subject to the tax as clearly provided by the statute. Respondents urge that the same construction should be given to the bracket formula of

Article 20.02(

A) in its provision that no tax shall be collected by the retailer from the consumer on retail sales from one cent to twenty-four cents. They recognize that that which is taxed by

Article 20.02 is “the incident, event or transaction of retail sales of tangible personal property.” We construe

Article 20.02 as levying a two per cent limited sales tax— a transaction tax — on retail sales, with the tax to be collected in accordance with the rates enumerated in the bracket system formula of

Article 20.02(A). The tax is to be collected by the retailer from the consumer in each separate retail sale at the rates and to the extent authorized by the bracket system formula. The retailer pays the whole tax if his sales do not permit collection of any- portion of the tax from the consumer, such as respondents here. The retailer pays a portion of the tax if his sales are preponderantly in certain brackets, e. g., fifty-one cents to seventy-four cents; the retailer collects more than the tax from the consumer if his sales are preponderantly in other brackets, e. g., twenty-five cents to forty-nine cents.

It is only upon sales of fifty cents and multiples thereof that the tax paid by the consumer is the same as that collected by the retailer and paid to the Comptroller. The bracket system was utilized by the Legislature for collection purposes in contemplation of the fact that it is impossible for the retailer to add exactly two per cent to the sales price of every

article sold. The law of averages was invoked to balance the impact of the tax upon retailer and consumer, and to permit the retailer to collect the tax from the consumer to the extent possible under the limitations of the bracket system. White v. Washington, 49 Wash.2d 716, 306 P.2d 230. Cf. Smoky Mountain Canteen Company v. Kizer, 193 Tenn. 598, 247 S.W.2d 69. Stevens Enterprises, Inc. v. State Commission of Revenue and Taxation, 179 Kan. 696, 298 P.2d 326; W. S. Libbey Co. v. Johnson, 148 Me. 410, 94 A.2d 907; Piedmont Canteen Service, Inc. v. Johnson, 256 N.C. 155, 123 S.E.2d 582.

As an alternative counter point, respondents urge that the tax as we have applied it to them is contrary to Sections 1 and 2 of

Article VIII of the Texas Constitution, Vernon’s Ann.St., and to the Fourteenth Amendment to the Federal Constitution. The argument is that they are required to pay the debts of another, i. e., the tax is upon the consumer, whose debt it is, but respondents are required to pay it. Further, that they are subject to discrimination in favor of those retailers making sales of twenty-five cents or more who may recoup the tax from the consumers in whole or in part; and, finally, that this results in a system of taxation which is not equal and uniform. Respondents are not required to pay the taxes of someone else.

The tax is upon the transaction and is collectible from the consumer only at the rates, and incident to sales, as specified in the bracket formula. The effect and result are alike upon retailers of the same class and engaged in the same type of business. Respondents are required to absorb the tax only because they have elected to sell items at a retail price less than the price provided for collectibility from the consumer.

There is no more discrimination against respondents selling items of twenty-four cents or less than there would be against a retailer selling items between fifty-one cents and seventy-four cents where a portion of the tax would have to be paid by the retailer. It would be impossible for the Legislature to levy a tax of this type that would operate exactly alike upon all, and the consequences are inherent in the taxing system adopted by the Legislature in a proper exercise of its powers. See White v. Washington, and Smoky Mountain Canteen Company v. Kizer, supra.

The judgments of the trial court and of the Court of Civil Appeals are reversed, and judgment is here rendered that respondents take nothing. SMITH and GREENHILL, JJ., dissenting. . It is noted that respondents were expressly exempted from the Limited Sales, Excise and Use Tax by the 58th Legislature at its Regular Session; Acts 58th Leg., 1903, Ch. 138, p. 387, Art. 20.04 (

T) which reads: “There are exempted from the taxes imposed by this

Chapter the receipts from the sale of tangible personal property when sold through a coin-operated vending machine for a total consideration of twenty-four cents (240) or less.”