author: DENTON, Justice.

text:
    Lela Ruth BURKE, Petitioner, v. Robert W. SATTERFIELD, Respondent.
    No. B-4937.
    Supreme Court of Texas.
    May 21, 1975.

      House, Mercer, House, Brock & Wilson, C. G. House and John E. Bevil, San Antonio, for petitioner.
    Pat Maloney, San Antonio, for respondent.
   DENTON, Justice.

This controversy arose out of a demand for an accounting pursuant to Section 149A of the Texas Probate Code, from an independent executrix which was filed in a county court at law, sitting in matters probate, by a devisee under the will. The executrix thereafter sought to file in the same court a final accounting un•der Section 151 to which the devisee has leveled numerous objections and exceptions. The probate court, however, on its own motion subsequently overruled and dismissed these objections and exceptions for lack of jurisdiction. Upon appeal, the court of civil appeals reversed and remanded, holding that the probate court had jurisdiction to entertain the objections and exceptions filed by the devisee because the executrix’s prayer in her final accounting, asking for all interested parties to be notified and that she be discharged from all liability, invoked the potential jurisdiction of the probate court to determine the correctness of the accounting. 514 S.W.2d 138. We agree, but for a different reason, that the judgment of the court of civil appeals was correct as to the probate court’s jurisdiction to determine the executrix’s compliance with Section 149A. As set out in the partial dissenting opinion at ,516 S.W.2d 693, however, the objections complaining of the failure by the independent executrix to comply with a prior district court judgment and the attack upon the commission claimed by the executrix would not be within the probate court’s jurisdiction; ' and we therefore modify that portion of’ the judgment which would remand these questions back to the probate court for consideration.

On September 26, 1966, the last will and testament of the deceased, Glenn Satter-field, was admitted to probate and Mrs. Lela Ruth (Satterfield) Burke was appointed independent executrix. She duly qualified and has continued to serve in that capacity up to the date that this action arose although there has been substantial controversy over the distribution of the decedent’s estate.

Robert W. Satterfield, the son of the deceased by prior marriage and a devisee under the will, filed in the probate court on August 8, 1973, an instrument addressed to the executrix ■ and entitled “Demand for Accounting” pursuant to Section 149A of the Texas Probate Code. This section of the probate code basically provides that an accounting may be obtained from an independent executor by any person interested in the estate being administered after the expiration of 15 months following the date the will was probated. The statute goes on to provide that if the independent executor does not furnish an accounting as provided for therein prior to the expiration of 60 days after receiving the request therefor, the person making the demand may compel compliance by an action in the probate court or by a suit in the district court and that, following a hearing, the court shall enter an order requiring the accounting to be made at such time as it deems proper under the circumstances.

On October 24, 1973, the independent executrix filed in the probate court, apparently pursuant to Section 151, an instrument designated as a “Final Accounting” which was signed and verified by her attorney with the averment that the same was true and correct to the best of his knowledge. This instrument, while noting that there is some $5,000.00 in the estate remaining to be disbursed to the heirs, contains a prayer to the effect that following notice to all interested parties, the court should enter an order “ratifying and approving the Final Accounting; closing the estate; and discharging the executrix from any further liability.”

The respondent, the devisee seeking the accounting, filed numerous objections and exceptions to the final accounting on January 31, 1974 complaining, inter alia, that the accounting was vague, indefinite and did not comply with the requirements of Section 149A and that the executrix had failed to comply with the judgment rendered by another court in a prior independent action wherein the will had been construed. The devisee also requested that, in view of the above complaints and the executrix’s improper computation of her commission, she be denied any fee or commission for her services as executrix. These objections and exceptions, however, were subsequently overruled and dismissed by the probate court on its own motion for the lack of jurisdiction.

The court of civil appeals opinion, while recognizing the rule announced by Section 145 and applied by this Court in Corpus Christi Bank and Trust v. Alice National Bank, 444 S.W.2d 632 (Tex.l969) to the effect that the probate court’s control over independent administration of decedents’ estates is strictly limited to situations specifically and explicitly set out in the probate code, concludes that there is no provision within the sections relevant to ac-countings by independent executors whereby one may file objections or exceptions to such an accounting. The majority opinion nevertheless concludes that the executrix in the instant case invoked the potential jurisdiction of the probate court to determine the correctness of the final accounting she filed. This conclusion, as was pointed oüt in the opinion, was arrived at upon consideration of the executrix’s prayer in the final accounting which asked that all interested parties be notified and that the court ratify and approve the accounting thereby closing the estate and discharging the executrix from further liability.

It must first be noted that the probate code in no manner provides for the approval or disapproval of the substance of a “Final Accounting” by an independent executor. Rather, Section 151 specifically provides the filing of such an accounting with the probate court “shall not relieve the independent executor from liability for any mismanagement of the estate or from liability for any false statements contained in the affidavit.” A reading of this provision and the accompanying interpretative commentary clearly indicates that Section 151 is purely administrative in nature, providing simply a method whereby the closing of an independent administration can be made a matter of record. It appears, therefore, that Section 151 cannot be construed as specifically providing the probate court with the power to look to the substance of the accounting in an effort to determine whether it is accurate or whether the executor has properly administered the estate. It is also fundamental, as opposed to the court of civil appeals conclusion to the contrary, that the subject matter jurisdiction of a court cannot be enlarged by an agreement between the parties or a request that the court exceed its powers. See Rowland v. Moore, 141 Tex. 469, 174 S.W.2d 248 (1943) ; Federal Underwriters Exchange v. Pugh, 141 Tex. 539, 174 S.W.2d 598 (1943) ; Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933). Therefore, the executrix’s request for approval of her final accounting by the probate court would not invest that court with the power to pass on the correctness of the accounting or to entertain objections that challenge the distribution of the estate.

Turning now to Section 149A, however, we hold that language contained therein invests the probate court with jurisdiction to consider certain exceptions that might be filed with respect to an accounting submitted thereunder in view of the provisions of the statute which provide in part that

The independent executor shall thereupon furnish to the person or persons making the demand an exhibit in writing, sworn and subscribed by the independent executor, setting forth in detail \
1. The properly belonging to the estate which has come into his hands as executor.
2. The disposition that has been made of such property.
3. The debts that have been paid.
4. The debts and expenses, if any, still owing by the estate.
5. The property of the estate, if any, still remaining in his hands.
6. Such other facts as may be necessary to a full and definite understanding of the exact condition of the estate.
(b) Enforcement of Demand. Should the independent executor not comply with a demand for an accounting authorized by this section within sixty days after receipt of the demand, the person making the demand may compel compliance by an action in the probate court . . (Emphasis added.)

Such language would undoubtedly permit the probate court to consider exceptions, as were filed in the instant case, which complain of vague, general or indefinite entries in an accounting filed under Section 149A. How else could a person interested in an estate secure his right, under this statute, to obtain a “full and definite understanding of the exact condition of the estate”? The above provisions relating to the specificity of the accounting, however, do not speak to nor allow a probate court, as also sought in the instant case, to require an accounting in accordance with the judgment construing the will in a prior action.

Notwithstanding her contention that Section 149A provides no authority whereby the probate court could look to the substance of an accounting filed thereunder, the executrix asserts that we are here presented only with a final accounting, tendered in accordance with Section 151, and that under the terms of that section neither the probate court nor any interested party has the power to question such an accounting. Before this assertion is considered, it should be noted that the accounting submitted by the executrix revealed that some $5,000 in the decedent’s estate remained to be distributed to the heirs. Section 151, however, specifically provides that the executor may close an independent administration by affidavit only “when the independent executor has distributed to the persons entitled thereto all assets of the estate.” (Emphasis added.) In a similar proceeding to close an independent administration brought by a dis-tributee under Section 152, this Court has held that the terms of the statute, which require the estate to have been fully administered, must be strictly followed. Davis v. East Texas Savings & Loan Association, 163 Tex. 361, 354 S.W.2d 926 (1962). It would appear that the same considerations would obtain here. Another factor affecting the determination of whether wé are faced with a Section 151 accounting here concerns the affidavit attached to the accounting submitted by executrix which was signed by her attorney and stated that he had “read the accounting and allegations set out thereunder and same are true and correct to the,best of his knowledge.” Unless authorized by statute, an affidavit is insufficient unless the allegations therein are direct and unequivocal and perjury can be assigned upon it. See Spinks v. Matthews, 80 Tex. 373, IS S.W. 1101 (1891); Graham v. McCarty, 69 Tex. 323, 7 S.W. 342 (1887); Nagelson v. Fair Park National Bank, 351 S.W.2d 925 (Tex.Civ.App. — Dallas 1961, writ ref’d n. r. e.) and cases cited therein. The affidavit before us now, however, would not appear to positively and unqualifiedly represent the facts as disclosed in the accounting to be true and within the personal knowledge of the affiant. Additionally an attorney has been conferred, under Rule 14, Texas Rules of Civil Procedure, the right to make an affidavit for his client only during the progress of a cause or proceeding; a situation which is not presented by the filing of a final accounting under Section 151. See also Am.Jur.2d Affidavits § 4 (1962). We, therefore, have presented here an accounting which is a final accounting in name only and does not meet the requisites of Section 151.

We should not, however, be understood here to hold that if a proper final accounting had been tendered by the executrix, that the probate court would have been precluded from acting under Section 149A. Once the probate court has been timely called upon to compel an executor to comply with the terms of that statute, its jurisdiction will not be defeated by an administrative statute designed only to allow' the closing of an independent administration to appear of record.

As set out in the recitation of the facts surrounding this appeal, it was noted that several of the objections leveled at the accounting concerned the failure of the executrix to comply with a district court judgment in a prior independent action involving a construction of the decedent’s will, as well as complaints referring to the commission claimed in the accounting by the executrix. As correctly pointed out by the partial dissenting opinion, nothing in the probate code empowers the probate court to compel an independent executor to comply with the orders of a district court rendered in an independent action nor is there any authority that would permit the probate court to pass on the validity of an executor’s claim concerning his commission. The devisee argues, however, that Section 5 of the Texas Probate Code, which was recently enacted pursuant to the amended version of Article V, Section 8 of the Texas Constitution, Vernon’s Ann.St., permits the filing in the county court at law, sitting in matters probate, all applications, petitions and motions regarding probate rather than in the district court. This reading of the statute, however, fails to take into consideration the limiting language “unless otherwise provided by the legislature.” Section 145 of the Texas Probate Code, which strictly circumscribes the power of the probate court over independent executors, is clearly such a provision and should be controlling. To hold otherwise would be read into the newly amended Section 5 the implied repeal of the long-standing policy in this state, implemented by Section 145, which permits an independent executor, free of judicial supervision, to effect the distribution of an estate with a minimum of cost and delay. In view of the continued vitality of Section 145, it would appear that the probate court would not have jurisdiction to consider the objections to a final accounting by a devisee that related to the judgment in a prior independent proceeding or complaints as to the executrix’s commission.

The judgment of the court of civil appeals is therefore modified, and as modified, affirmed with the cause remanded to the probate court for further proceedings in accordance with Section 149A and this opinion.

      . All references will be to the Texas Probate Code unless otherwise specifically noted.

      . Section 151 provides as follows:
      Closing Independent Administration by Affidavit
      (a) Filing of Affidavit. When all of the debts known to exist against the estate have been paid, or when they have been paid so far as the assets in the hands of the independent executor will permit, and when the independent executor has distributed to the persons entitled thereto all assets of the estate, if any, remaining after payment of debts, the independent executor may file with the court a final account verified by affidavit. Such account shall show:
      (1) The property of the estate which came into the hands of the independent executor; and
      (2) The debts that have been paid; and
      (3) The debts, if any, still owing by the estate; and
      (4) The property of the estate, if any, remaining on hand after payment of debts; and
      (5)The names and residences of the persons to whom the property of the estate, if any, remaining on hand after payment of debts has been distributed.
      (b) Effect of Filing the Affidavit. The filing of such an affidavit shall terminate the independent administration and the power and authority of the independent executor, but shall not relieve the independent executor from liability for any mismanagement of the estate or from liability for any false statements contained in the affidavit. When such an affidavit has been filed, persons dealing with properties of the estate, or with daims against the estate, shall deal directly with the distributees of the estate; and the acts of such distributees with respect to such properties or claims shall in all ways be valid and binding as regards the persons with whom they deal, notwithstanding any false statements made by the independent executor in such affidavit.


source: Caselaw Access Project

author: POPE, Justice.

license: Public Domain

text:
    GREAT AMERICAN RESERVE INSURANCE COMPANY, Petitioner, v. Violet SANDERS, Respondent.
    No. B-5048.
    Supreme Court of Texas.
    July 16, 1975.
    Rehearing Denied Sept. 24, 1975.

      Elliott, Churchill, Hansen, Dyess & Max-field, Mike D. Gibbs and Gary Maxfield, Dallas, for petitioner.
    Andress, Woodgate & Lodewiek, Wm. Andress, Jr., Dallas, for respondent.
   POPE, Justice.

Great American Reserve Insurance Company filed an interpleader suit in district court naming as defendants the insured’s ex-wife, Violet Sanders, and surviving widow, Jessie Sanders. The petition also named Hill Metropolitan Funeral Directors, Inc. because of an assignment to it by Violet Sanders for part of the insurance proceeds to cover the insured’s funeral expenses. The trial court awarded the $5000 insurance proceeds to Violet Sanders, less $1208.60 awarded to the funeral home by virtue of its assigned interest, and less $500 attorney fees to the insurer-stakeholder, Great American Reserve Insurance Company. The court of civil appeals reversed and remanded. 516 S.W.2d 732. We reverse the judgment of the court of civil appeals and affirm that of the trial court. This case presents us with two separate questions. First, whether there was a bona fide claim made by each of the rival claimants such as will allow the insurer-stakeholder to resort to the equitable remedy of interpleader. Second, whether Article 3.62, Vernon’s Tex.Ins.Code Ann., imposes an absolute duty upon an insurer to either pay a claimant or interplead rival claimants within 30 days of the time demand is made for the proceeds.

The case was submitted to the trial court upon an agreed statement of facts. Nathaniel and Violet Sanders were married in 1960. They obtained a divorce on July 30, 1969, and Violet was awarded custody of their five minor children. The court ordered Nathaniel Sanders to pay $35.00 per week for child support.

Nathaniel Sanders married Jessie Mae Sanders in February, 1971. They separated in early summer of 1971, though no divorce action was brought by either party. Subsequent to this separation, in September, 1971, Violet Sanders threatened to bring contempt proceedings against Nathaniel because of his failure to make child support payments. Nathaniel proposed instead that he take out a $5000 life insurance policy, with Violet as beneficiary, and also that he begin making regular support payments. Nathaniel secured a certificate of insurance from Great American Reserve Insurance Company through a group plan available to employees of the City of Dallas. Violet was named as beneficiary and was given possession of the certificate.

Nathaniel’s failure to make regular support payments continued and on February 14, 1973, a Dallas County Domestic Relations Court entered a commitment for contempt against him because of his delinquent child support payments amounting to $2478.00. The commitment was suspended, however, as long as Nathaniel made the $35.00 per week payments.

Nathaniel Sanders died on April 3, 1973. Violet Sanders assigned $1213.60 to Hill Metropolitan Funeral Directors, Inc. from the insurance proceeds. On May 9, 1973, both Violet and Jessie Mae filed proof of death with the insurer, and claimed the proceeds of the policy. Great American Reserve filed its petition in interpleader on June 15, 1973, wherein it admitted liability under the policy, and deposited the $5000.00 proceeds in the registry of the court. Great American alleged that it had honest doubts as to who was entitled to the proceeds, and asked $500 for attorney fees.

The trial court granted an agreed partial summary judgment in favor of the funeral home for $1208.60, by virtue of its assigned interest in that amount by Violet Sanders. Great American was awarded $500 out of the fund for attorney fees, and the trial court determined that Violet Sanders was entitled to the balance.

Violet appealed the trial court’s award of $500 to the insurer for attorney fees, and also appealed the trial court’s refusal to award her attorney fees and a 12% penalty provided for in Article 3.62, Tex.Ins.Code Ann. The court of civil appeals held that Great American had a duty to make an investigation within thirty days after the claim for proceeds was made, in order to determine who was entitled to the proceeds. According to that court, this investigation would have revealed the indisputable merit of Violet’s claim and shown that Jessie’s claim was entirely spurious. The court also held that Article 3.62 required the insurer to either pay a claimant within 30 days of demand for the proceeds, or to file its petition in intervention within this same period. We think that the court of civil appeals has placed a burden on the insurer not contemplated by Article 3.62.

Great American was entitled to maintain an interpleader suit if there existed a reasonable doubt, either of fact or law, as to which of the rival claimants was entitled to the proceeds of the policy. Employers’ Casualty Co. v. Rockwall County, 120 Tex. 441, 35 S.W.2d 690 (1931). If the insurer’s doubt is a reasonable one, and for that reason it in good faith declines to pay the named beneficiary, but admits liability and deposits the funds into court, it is liable. only for the face amount of the policy. Murray v. Bankers Life Co., 299 S.W.2d 730 (Tex.Civ.App. — 1957, writ ref’d); Givens v. Girard Life Ins. Co., 480 S.W.2d 421, 428 (Tex.Civ.App. — 1972, writ ref’d n. r. e.).

We must examine the nature of the conflicting claims in order to determine whether or not Great American was faced with a reasonable doubt as to which claim was superior. Violet Sanders was the named beneficiary, and had possession of the certificate of insurance. According to Article 3.48, Tex.Ins.Code Ann., an insurer may pay the named beneficiary of a policy without concern for further liability unless it receives notice of an adverse, and bona fide, claim to the proceeds.

Great American in this case was faced with an adverse claim, filed on the same day as. Violet’s claim, by Jessie Mae Sanders. An investigation of this claim would reveal that Jessie Mae was Nathaniel’s wife at the time he took out the certificate of insurance, at all times when premiums were paid, and at the time of his death.

These facts raise the possibility that Jessie Mae was entitled to the proceeds, or some part thereof, on the ground that Nathaniel’s act of naming his ex-wife beneficiary of a policy purchased with funds of the community of Nathaniel and Jessie Mae, was constructive fraud upon Jessie Mae. It was held in Givens v. Girard Life Ins. Co., 480 S.W.2d 421, 426 (Tex.Civ.App. —1972, writ ref’d n. r. e.) that the widow “establishes constructive fraud prima facie by proof that life insurance was purchased with community funds for the benefit of an unrelated person, and the beneficiary then has the burden to justify such use of community funds.”

The beneficiary may rebut the pri-ma facie case by showing special circumstances which justify the purchase of the life insurance. Obviously, the fact that the unrelated person is named as beneficiary and has possession of the policy does not rebut the prima facie case. The fact that the policy was to secure delinquent support payments for the benefit of the insured’s minor children may be sufficient justification for the purchase of the policy, but this is not a determination which the insurance company should have to make.

The question of whether use of community funds is constructive fraud upon the wife is a difficult one. It is stated in Johanson, Revocable Trusts and Community Property: The Substantive Problems, 47 Tex.L.Rev. 537, 568 (1969):

As a group the cases do not give clear guidelines. At best, they point up the factors that bear on the decision whether a transfer is likely to be held in constructive fraud of the wife’s rights. Among the factors that have been emphasized are the relationship of the transferee to the transferor or his wife; whether there are special circumstances that tend to justify the transfer; the v'alue of the assets transferred in relation to the total value of the community estate; and whether the wife has adequately been provided for out of the remaining community property and the separate property of the husband.

To require the insurance company in this case to discover every fact that may be a circumstance justifying use of the community funds, decide which facts are true and which are false, and apply the law of constructive fraud to those facts would defeat the very purpose of interpleader. An insurance company should not be compelled to act as judge and jury. Gabler v. Minnesota Mutual Life Ins. Co., 498 S.W.2d 413 (Tex.Civ.App—1973, no writ); Demmer v. American Nat. Ins. Co., 263 S.W.2d 795 (Tex.Civ.App.—1953, no writ). Since we hold that interpleader was properly available to Great American, we also uphold the trial court’s award to it of $500 attorney fees.

The court of civil appeals held that Great American was not in good faith in failing to interplead within 30 days under Article 3.62. That statute assesses a 12% penalty and reasonable attorney fees against the insurance company in favor of the rightful claimant where the company has failed to pay the claimant within 30 days. Several cases have held that where circumstances exist which make interpleader a proper remedy, as in this case, failure to pay the money into the court within 30 days after demand does not make the insurer liable for the penalty and attorney fees. Murray v. Bankers Life Co., supra; Gabler v. Minnesota Mutual Life Ins. Co., supra; Givens v. Girard Life Ins. Co., supra; Franklin Life Ins. Co. v. Greer, 219 S.W.2d 137 (Tex.Civ.App.—1949), rev’d on other grounds but specifically approved this point, 148 Tex. 166, 221 S.W.2d 857. In this case, the interpleader suit was filed thirty-seven days after the demands for the proceeds were received. We are not deciding whether in another case a period of delay before interpleading the competing claimants might be so unreasonable as to justify imposition of the statutory penalty.

We reverse the judgment of the court of civil appeals and affirm that of the trial court.

      . Art. 3.62. Delay in Payment of Losses; Penalty For
      In all cases where a loss occurs and the life insurance company, or accident insurance company, or life and accident, health and accident, or life, health and accident insurance company liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss. Such attorney fee shall be taxed as a part of the costs in the case. The Court in fixing such fees shall take into consideration all benefits to the insured incident to the prosecution of the suit, accrued and to accrue on account of such policy. Acts 1951, 52nd Leg., ch. 491.


author: VANCE, Commissioner.

text:
    John URBANSKI, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 20, 1975.
    Jack Emory Farley, Public Defender, J. Vincent Aprile II, Asst. Public Defender, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, William M. Gant, Commonwealth’s Atty., Owensboro, for appellee.
   VANCE, Commissioner.

This is an appeal from a judgment sentencing appellant to confinement in the penitentiary for five years and imposing a fine of $3,000.00 upon his conviction of the offense of the sale of a controlled substance, viz., Lysergic Acid Diethylamide. We affirm.

At the trial the appellant was dressed in a suit and tie and, we are informed by appellant’s brief, with much shorter hair and beard than when he was arrested. Over appellant’s objection the Commonwealth was permitted to prove that at the time of his arrest and during a period of observation prior thereto by an undercover agent, the appellant customarily dressed in old Army shirts, trousers and jackets and wore shoulder-length hair and a beard.

Likewise, over objection, a picture of appellant, taken while he was in custody, was introduced in evidence. The picture depicts a male with long, stringy, unkempt hair, and a profuse beard and mustache obscuring a large portion of his face from vision, wearing an unbuttoned, wrinkled shirt.

The trial judge admonished the jury that appellant was not being tried for his appearance but for the illegal sale of drugs.

Appellant contends that the description of his former appearance and style of dress and the introduction of the picture which demonstrated it more graphically were prejudicial because a substantial segment of the public connects “long hair” and “hippies” with the drug scene.

In Van Nostrand v. State, 51 Ala.App. 494, 286 So.2d 903 (1973), it was held that the introduction of a photograph similar to the one in question here had no probative value since there was no question of identity and was prejudicial because a substantial segment of the population connected “long hair” and “hippies” with the drug scene.

In State v. Ostrand, 219 N.W.2d 509 (Iowa 1974), reversed upon other grounds, it was directed that a similar photograph not be admitted in evidence upon a new trial.

Apparently this issue is a matter of first impression in Kentucky. We are not convinced that it was error to admit evidence of the mode of dress and appearance of the appellant under the circumstances of this case.

Even though the picture was introduced before appellant testified he appeared before the jury dressed and coif fed in a manner entirely inconsistent with his usual mode of dress and appearance. One reason for this could have been an attempt to convince the jury by his appearance that he could not have gained entree to the drug-using populace.

It appears to us that he attempted to sail under false colors and for whatever weight it might have the Commonwealth was entitled to set the record straight and to show him as he usually and customarily appeared rather than as he chose to appear for the occasion. Cf. State v. Mordecai, 83 N.M. 208, 490 P.2d 466 (1971), and State v. Pollard, Mo., 447 S.W.2d 249 (1969).

Appellant also contends that an instruction upon reasonable doubt which informed the jury that it must ask itself not whether a better case might have been proven, but whether, after hearing and considering all the evidence, it sincerely doubted that the defendant was guilty, was erroneous.

We considered and rejected a similar argument in Evans v. Commonwealth, Ky., 474 S.W.2d 370 (1971), and we are not persuaded to depart from the views we expressed therein.

Appellant asserts numerous other allegations of error, none of which have been properly reserved for review by this court.

The judgment is affirmed.

All concur.


text:
    Larry Allen DENNIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    74-1154.
    Court of Appeals of Kentucky.
    June 20, 1975.

      Jack Emory Farley, Public Defender, Vincent D. Giovanni, Asst. Public Defender, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., Frankfort, Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   VANCE, Commissioner.

This is an appeal from a judgment which sentenced appellant to confinement in the penitentiary upon conviction of two counts of knowingly receiving stolen property. KRS 433.290.

The appellant, Larry Allen Dennis, and his brother, Douglas Lee Dennis, were indicted jointly, tried together, and both were convicted. Only Larry Allen Dennis appeals.

At the time of his arrest Douglas Lee Dennis admitted guilt and expressed a desire to “take the whole rap” because he thought the jury would go easier with him than with his brother since his brother was already on probation on another charge.

At the trial Douglas Lee Dennis testified that he made the admission of guilt “because I thought it would go easier on me than it would on Larry because he’s got a wife and kids”. He also testified that the only reason he made the statement was to help out his brother, the appellant.

The Commonwealth claimed the two statements were inconsistent and was permitted, over objection, to impeach the witness by the introduction into evidence of the original statement which of course brought before the jury the fact that appellant was already upon probation from another sentence.

In Commonwealth v. Jackson, Ky., 281 S.W.2d 891 (1955), we held it proper to introduce an inconsistent statement of a witness by way of impeachment even though the inconsistent statement implicated the defendant on trial in the commission of a separate offense.

In Jackson, however, it was pointed out that the statement used to impeach the witness involved a real inconsistency with the evidence of that witness at the trial in that the testimony at the trial supported the defendant’s plea of self-defense to a homicide charge whereas the statement made by the witness shortly after the shooting in no way indicated self-defense but on the contrary indicated that at the time of the shooting the defendant “had a crazy spell on” the same as he had a few days earlier when he had shot at the witness.

Here there is no real inconsistency of substance between the original statement and the testimony of the witness at the trial. In the original statement he expressed a desire “to take the whole rap”. The reason he wanted “to take the whole rap” was because it would go easier upon him than his brother. At the trial, this witness admitted making the confession and again stated his reason for making it was that it would be easier for him than his brother. Although he gave a different reason at the trial than he did when originally questioned for thinking it would go easier with his brother, both statements tended to show he was impelled by a desire to take the whole burden upon his shoulders and spare his brother.

The statement which was used for the ostensible purpose of impeachment did not in fact impeach. Its only real effect was to bring out that the codefendant, who did not testify, was on probation. This was prejudicial error.

On another trial the Commonwealth’s Attorney will refrain from making any argument to the effect that the jurors, if they fail to convict, cannot complain if they become victims of crime. A Commonwealth’s Attorney should limit himself to reasonable comments upon the evidence and reasonable inferences which may be drawn therefrom.

We find no merit in appellant’s other allegations of error.

The judgment is reversed for proceedings consistent with this opinion.

All concur except REED, C. J., and JONES, J., dissenting.


author: HENRY I. EAGER, Special Commissioner.

text:
    ITT CANTEEN CORPORATION et al., Respondents, v. James SPRADLING et al., Appellants.
    No. 58786.
    Supreme Court of Missouri, Division No. 2.
    July 14, 1975.

      Armstrong, Teasdale, Kramer & Vaughan, Thomas E. Wack, St. Louis, for respondents.
    John C. Danforth, Atty. Gen., Mark D. Mittleman, Asst. Atty. Gen., Jefferson City, for appellants.
   HENRY I. EAGER, Special Commissioner.

This is a declaratory judgment action filed primarily for the purpose of declaring void Amended Rule No. 87 of the Department of Revenue (effective January 31, 1974) which requires the inclusion and payment of sales tax upon the amount received by a retail seller in payment of the Missouri Cigarette Tax (nine cents a package). The plaintiffs sell cigarettes only through vending machines. The petition also sought to extend the remedy sought, in two counts filed as class actions, to all others selling cigarettes and tobacco products in Missouri through vending machines. The case was submitted below and is submitted here upon an agreed statement of facts. The trial court granted plaintiffs the relief sought, declared the amended rule to be void, enjoined its enforcement, and extended the ruling to all other like vending machine operators in Missouri by virtue of a stipulation to the effect that the judgment would be binding upon the stated class “so long as the Missouri state sales tax remains a gross receipts tax upon the seller and the Missouri cigarette excise tax remains a levy upon the consumer required to be collected by the seller.” We have jurisdiction because the revenue laws are involved.

The history of the matter is substantially as now set forth. From the inception of the Missouri Sales Tax in 1935 until 1971 the Revenue Department had made no claim that the Missouri sales tax (now Ch. 144, Sections 144.010 to 144.745, RSMo 1969, V.A.M.S.) should be computed and collected upon the amounts paid by purchasers to retail sellers of cigarettes under the Missouri Cigarette Tax Law (which was Ch. 149, Sections 149.010 to 149.110, at the time this suit was filed, but repealed and amended in HB 1612, 2nd Regular Session 1974, Missouri Legislative Service, V.A.M.S. No. 2, p. 220, approved June 18, 1974). Consequently, retailers did not include the amounts of the cigarette tax in their returns. In 1971 the Revenue Department notified ITT Canteen Corporation of a deficiency in its sales tax payments from October 1, 1968 — September 30, 1970, solely by reason of the failure to include the amounts of the cigarette taxes received by it; at that time no rule or regulation had been promulgated. Canteen, as we shall designate it, paid the amount under protest, exhausted its administrative remedies without success and petitioned for a judicial review in the Circuit Court of St. Louis County. That review was held before Judge Orville Richardson who, on October 3,1972, issued a memorandum and order reversing the decision of the Revenue Department and its Director and ordering the return of the money so paid under protest. In that memo and order the Court found and held: that the cigarette tax was not a part of the price upon which the sales tax was imposed; that the cigarette tax was in fact a levy “on the consumer or user” and was legally imposed upon him, with the seller (although paying the tax) “acting merely as agent for the state for the payment and collection of the tax”; that the sales tax was a direct levy upon the seller, imposed upon the purchase price for the privilege of selling; that the incidence of the cigarette tax attached only at the time the sale was made, and did not accrue until the sale was consummated; that it did not become a part of the “purchase price paid”; that no specific deduction was necessary in the sales tax provisions because the “controverted item” did not even fall within the general definition of “gross receipts.” The Court ordered the return of the money paid, and that the amounts of the cigarette taxes be deducted thereafter in computing sales taxes due. The Revenue Department appealed from the judgment, but dismissed its appeal on January 15, 1973. It returned to Canteen the money paid under protest ($15,528.28) and also returned to 28 other vending machine operators the sum of about $150,000. It then promulgated its first Rule on the subject, No. 87, conforming to Judge Richardson’s ruling, thus restoring its previous practice. No different position was taken until about the end of 1973, when the Department promulgated the now contested Amended Rule 87, effective January 31, 1974, providing: “Persons selling cigarettes and tobacco products, including vegetable cigarettes and the like, are required to collect and remit sales tax on the total selling price paid or charged, whether sold through vending machines or otherwise, allowing no deductions whatsoever for federal taxes. Vendors selling cigarettes through vending machines may not claim state cigarette tax of nine (9) cents per package as a deduction when filing their returns.” There had then been no new legislation in either the Sales Tax Law or the Cigarette Tax Act. In February, 1974, plaintiffs filed the present suit. It will not be necessary to discuss the pleadings, for the issues pleaded sufficiently cover the points raised in the briefs. We should note at this point, however, that in Count I of the petition plaintiffs allege that the decision of Judge Richardson is “final and binding upon defendants,” and in Count II they seek to extend this principle to the class of vendors which they allegedly represent. In Count III plaintiffs allege that the Amended Rule and the practice sought to be thus enforced, are void on the merits, and in contravention of the statutes; in Count IV it is sought to extend the effect of these allegations to the class of vendors represented.

At this point, for clarification, we quote certain parts of the applicable statutes. First, the Sales Tax: Section 144.010(4): “ ‘Gross receipts’ means the total amount of the sale price of the sales at retail * * * whether received in money or otherwise; * * * por purposes of sections 144.-010 to 144.510 the total amount of the sale price above mentioned shall be deemed to be the amount received.”

Section 144.010(8): ‘“Sale at retail’ means any transfer made by any person engaged in business as defined herein of the ownership of, or title to, tangible personal property to the purchaser, for use or consumption and not for resale in any form as tangible personal property, for a valuable consideration; * *

Section 144.020(1): “Rate of tax. — 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.”

Section 144.021: “Imposition of tax — seller’s duties. — The purpose and intent of sections 144.010 to 144.510 is to impose a tax upon the privilege of engaging in the business, in this state, of selling tangible personal property * * * all sellers to report to the director of revenue their ‘gross receipts’, defined herein to mean the aggregate amount of the sales price of all sales at retail, and remit tax at three percent of their gross receipts.”

Section 144.060: “Purchaser to pay sales tax — refusal, a misdemeanor — exception. — It shall be the duty of every person making any purchase or receiving any service upon which a tax is imposed by sections 144.010 to 144.510 to pay, to the extent possible under the provisions of section 144.-285, the amount of such tax to the person making such sale or rendering such service; any person who shall willfully and intentionally refuse to pay such tax shall be guilty of a misdemeanor; * *

The Cigarette Tax Act, RSMo 1969, Ch. 149, was in part as follows:

Section 149.020. “Tax levy, stamps to be affixed. — 1. A tax shall be paid on the sale of cigarettes made of tobacco, or any substitute for tobacco, of four and one-half mills per cigarette.

“2. This tax shall be paid by affixing stamps in the manner and at the time set forth in this chapter. The stamps shall be affixed to each individual package of cigarettes by the person who first sells the cigarettes within this state. All cigarettes must be stamped before being sold in this state.

“4. Every person required to pay this tax shall add the amount of the tax to the sales price of the cigarettes, it being the purpose and intent of this law that the tax is in fact a levy on the consumer or user with the person first selling the cigarettes acting merely as an agent of the state for the payment and collection of the tax to the state.”

Section 149.040: “Refund of tax granted, when■ — rules and regulations. — Whenever any cigarettes upon which stamps have been placed have been sold or shipped into another state for sale or use there or have become unfit for use and consumption or unsalable, or have been destroyed, the wholesaler shall be entitled to a refund of the actual amount of the tax paid with respect to such cigarettes. * * * ”

A new Cigarette Tax Act was enacted in 1974; it will be referred to in the body of this opinion. On July 12, 1974, the trial court filed in the present ease a memorandum opinion and its decree; therein it held, on agreed facts: that despite procedural differences Judge Richardson’s decision and order were binding, the legal issue being identical (thus apparently holding that the judgment was res adjudicata); that, moreover, even if that be not true it would follow the decision on the doctrine of “stare decisisthat alternately plaintiffs were entitled to judgment on the merits both under the old and new Cigarette Tax Acts; that the cigarette tax was not a part of the “sales price,” but was an amount “added to” the sales price; that the legal incidence and economic burden of the tax was only upon the ultimate buyer; that the seller received no benefit from the collection of the tax, but only fulfilled a statutory duty; that the one first selling the cigarettes was merely an agent for the State, and that the new Act went further and provided that if anyone other than the consumer paid the tax, it should be considered as an “advance,” to be recovered from the ultimate consumer; also, that the ultimate liability for the cigarette tax accrued only when a sale was actually made to the customer; that consequently the amount of the cigarette tax was not a part of the “gross receipts” for sales tax purposes. Counts II and IV (the class actions) were considered as determined by the stipulation. The Amended Rule was adjudged to be void, and its enforcement was enjoined as was the enforcement of any similar rule. This appeal was duly filed.

We are met first with the contentions in the briefs, pro and con, that the decision and order of Judge Richardson were or were not res adjudicata or to be considered as a collateral estoppel. Dozens of authorities are cited and the principles are discussed in much detail. One difference between the parties is whether the two proceedings involve the same or substantially different questions of fact; another is whether the applicable law has been changed. Plaintiffs insist that the principle to be considered is not res adjudicata, but collateral estoppel; if either were to be applied, we would be inclined to agree. Before the amendment of Rule 87 this Court adopted opinions in Robert Williams & Co., Inc. v. State Tax Comm. of Mo. et al., 498 S.W.2d 527 (Mo.1973) and Fabick and Co. v. Schaffner et al., 492 S.W.2d 737 (Mo.1973). After the amendment of the Rule but before the decision below, the legislature enacted and the Governor signed a new Cigarette Tax Act (repealing the old one). Defendants contend strenuously that these developments effected a change in the applicable law. While we do not, at this point, rule that they did or did not, we feel that .they do present an arguable question of law which we must decide. Hence, we determine that this case should not be decided on either res adjudicata or collateral estoppel and, as a practical matter, there should be a determination here on the merits in any event. To do otherwise would only invite future litigation.

Those portions of the new Cigarette Tax Act which we should note (HB 1612, 2nd Regular Session 1974, Missouri Legislative Service, V.A.M.S. No. 2, p. 220) are as follows:

“SECTION 2. 1. A tax shall be levied upon the sale of cigarettes at an amount equal to four and one-half mills per cigarette.

“2. The tax shall be evidenced by stamps which shall be furnished by and purchased from the director * * *

“4. It shall be the intent of this chapter that the impact of the tax levied hereunder be absorbed by the consumer or user and when the tax is paid by any other person, the payment shall be considered as an advance payment and shall thereafter be added to the price of the cigarettes and recovered from the ultimate consumer or user with the person first selling the cigarettes acting as an agent of the state for the payment and collection of the tax to the state.

“5. In making sales of cigarettes in the state, a wholesaler shall keep a record of the amount of tax on his gross sales. The tax shall be evidenced by appropriate stamps attached to each package of cigarettes sold.”

Plaintiffs and defendants have argued and briefed the effect of the new statute, assuming its applicability, although effective on August 13, 1974. Since this is a' declaratory judgment suit, we shall consider it. This case presumably involves cigarette taxes accruing for an indefinite period after January 31, 1974. The trial court considered and ruled upon the effect of the new Act. That Act contains many provisions obviously directed at the elimination of fraud, bootlegging of stamps and the avoidance of the tax. This would seem to have been its chief purpose.

The primary contention of the defendants, the Director and the Department of Revenue, is that the Court must consider only the provisions of the Sales Tax law, and may not consider the cigarette tax laws, old or new. The reasoning is that the issue here is a sales tax issue, that the tax is levied upon the business of selling personal property, that all sellers are required to report and pay the tax upon their “gross receipts,” and that this term means the “total amount of the sale price of the sales at retail * * * and further that “the total amount of the sale price * * * shall be deemed to be the amount received.” The seller was and is required to collect the sales tax from the purchaser (§ 144.021), a specific duty is imposed upon the purchaser to pay the tax (§ 144.060), and a willful refusal to do so was made a misdemeanor. Defendants say, in other words, that the taxable gross receipts are the “amount received” by the seller, and that this includes the nine cent tax paid by the purchaser to a retailer for a package of cigarettes. Defendants further contend that the “legal incidence” of the cigarette tax upon the consumer and the time of its imposition are immaterial because the provisions of the cigarette tax law may not be considered on this issue. We hold to the contrary, as hereinafter noted.

Plaintiffs say that the sales tax must, in this connection, be considered along with the applicable provisions of the Cigarette Tax Act (Ch. 149, RSMo 1969, V.A.M.S.) which provided, among other things: that the stamps should be affixed by the first seller; that every person required to pay the tax should “add the amount of the tax to the sales price of the cigarettes” and that the purpose and intent of the law was that the tax was “in fact a levy on the consumer or user with the person first selling the cigarettes acting merely as an agent of the state for the payment and collection of the tax to the state.” The Act also provided for refunds to the wholesaler on cigarettes which had become unfit for use or consumption (as indeed the new Act also does).

Generally, statutes on similar subject matters are regarded as in pari materia, and must be considered together even though enacted at different times and found in different places. City of St. Louis v. Carpenter, 341 S.W.2d 786 (Mo.1961); State ex rel. Central Surety Ins. Corp. v. State Tax Comm., 348 Mo. 171, 153 S.W.2d 43 (1941); State ex rel. Smithco Transport Co. v. Public Service Comm., 316 S.W.2d 6 (Mo. banc 1958); State ex rel. Wright v. Carter, 319 S.W.2d 596 (Mo. banc 1958); Collier v. Roth, 468 S.W.2d 57 (Mo.App.1971). And the Court should, if possible harmonize such statutes. Defendants seek to distinguish these cases (or certain ones of them) on their facts, but we hold that the subject matter of the two Acts is sufficiently related to require our consideration of the Cigarette Tax Act. In doing so we are merely considering a subject and a tax to which the sales tax is specifically claimed to apply. This, in itself, creates a relationship between the two, and we should consider the nature and meaning of the cigarette levy, as bearing upon the provisions and applicability of the Sales Tax Act. It is true that the legislature has the right to define its own terms, but the courts have the right to construe its definition.

We first consider the 1969 revision of the statutes, under which this suit was instituted. Plaintiffs’ principal contentions are, as indicated: that the legal incidence of the cigarette tax falls upon the purchaser or consumer, that the tax is not imposed until the moment of sale, that the seller acts merely as an agent for the State,, and that the tax is not a part of, but is “added to” the sales price, that there can be no sales tax imposed upon the tax as if upon a preexisting sale, and that there is no cigarette tax upon the seller. Missouri has not decided the issue here. Under analogous (but, of course, not identical) statutes, the following authorities lend much credence to plaintiffs’ contentions. Blackmon v. Coastal Service, Inc., 125 Ga.App. 28, 186 S.E.2d 441 (1971), aff. 229 Ga. 471, 192 S.E.2d 372 (1972); American Oil Co. v. Mahin, 49 Ill.2d 199, 273 N.E.2d 818 (1971); Dick’s Vending Service, Inc. v. Dept. of Revenue, 53 Ill.2d 375, 293 N.E.2d 129 (1972); Standard Oil Co. v. State, 283 Mich. 85, 276 N.W. 908 (1937); Standard Oil Co. of Indiana v. State Tax Commissioner, 71 N.D. 146, 299 N.W. 447 (1941); Ross Jewelers, Inc. v. State, 260 Ala. 682, 72 So.2d 402 (1954); Revenue Ruling 60-224, CCH Federal Tax Reporter, ¶ 6522. These authorities emphasize the incidence of the tax on the consumer, its imposition at the time of sale, and the fact that it is an amount “added to” the sale price. The cases thus cited did consider the nature of the excise tax and its incidence, and did apply its provisions, along with the provisions of the sales (or other) tax, the enforcement of which was being sought. The Illinois statute referred to amounts received as “consideration” for the sale (which defendants say is a distinction), but that court adopted also other principles (as mentioned above) sufficient to rule out the double tax. The Georgia Court of Appeals said (Blackmon): “The principle of those cases is that if the imposition of taxes, such as those involved here on cigarettes, falls upon the consumer or the incident of the sale by the retailer to the consumer they are not included as part of the retail sale price for calculating the sales and use tax; if, however, the tax is imposed at a time prior to the point of retail sale or other consumer transaction, it is an element of the cost of the property sold and must be included as part of the retail sale price for purposes of calculating the sales and use tax. In determining the point at which any such tax falls, primary consideration must be given to the applicable taxing statutes, to which we now turn.” As a practical matter we simply cannot recite here the facts and the applicable statutes involved in the foregoing cases. We have considered them.

In ITT Canteen Gorp. v. Porterfield, 30 Ohio St.2d 155, 283 N.E.2d 124 (1972), cited and discussed by defendants, the Court held that the amounts paid for the cigarette tax should be included in the base for the sales tax on the seller. That Bales Tax Act provided that the tax should be advanced by the wholesaler and added to and collected from the purchaser “ ‘ * ⅜ * as part of the retail price of the cigarettes * * ’ ” ; it defined “price” as the “ ‘ ⅜ * ⅝ aggregate value in money ⅝ * ⅝ without any deduction on account of the cost * * ⅜ or any other expense.’ ” (Italics ours.) The Court held that the cigarette tax was an expense and, as noted, the tax was expressly made a part of the sale price.

Our Cigarette Tax Act (1969) provided that the “person” required to pay the tax “shall add ” the amount to the “sales price” and that the intent of the law was “that the tax is in fact a levy on the consumer or user with the person first selling the cigarettes acting merely as an agent of the state ⅜ * ⅞.” The tax was to be refunded if, before final sale, the cigarettes became unusable. We have already held that this Act may properly be considered with the Sales Tax Act. When so considered, it constitutes a valid supplement to the Sales Tax Act. The amount of the cigarette tax is not a part of the sales price; it is a levy on the consumer imposed at the time of the retail sale, and the seller is a mere agent for collection. Thus considered, the amount of the cigarette tax was not properly includable in the sales tax base under the 1969 statutes, and we so hold. Defendants have argued that plaintiffs did physically receive the tax and that it became a part of the “amount received” under the Sales Tax Act. They did so receive it, but as agents for the State, and they had no personal interest in the amounts so received. We shall not consider the term “amount received” in isolation, as used in the Sales Tax Act. As supplemented by the Cigarette Tax Act, the term, which is somewhat ambiguous, must be held to mean amounts received for the seller’s benefit and use; in our situation it was not so received. The context in which the term is used, i. e., such as to include “services” valued in money, consideration received “otherwise” than in money, and excluding amounts refunded on property returned, serves to corroborate our conclusion. See, for analogy, State v. Hallenberg-Wagner Motor Co., 341 Mo. 771, 108 S.W.2d 398 (1937). The Cigarette Tax Act clearly regards the sales price of cigarettes as the amount received exclusive of the cigarette tax (§ 149.020(4)). So considered, the two Acts are not in conflict; and the term “amount received” does not have the conclusive meaning attributed to it by defendants. We thus hold that, as of the time of suit, the sales tax could not legally be collected on the amounts of the cigarette tax.

Defendants claim, however, that the situation has been changed by the terms of the new Cigarette Tax Act (cited and quoted above) and the effect of two cases decided by this court; first, we look at the cases. In Fabick and Company v. Schaffner et a1., 492 S.W.2d 737 (Mo.1973), a Jefferson City Sales Tax Ordinance, based upon and incorporating the State Sales Tax Law, was involved. The issue was whether the taxpayer, located in Jefferson City, must pay on sales of equipment sent to other parts of Missouri. The Court held that, since the amendment of the Sales Tax Act in 1965 adding Section 144.021 and amending other sections, the tax had been changed from a transaction tax upon the sale to a gross receipts tax, that the tax burden was upon the seller for the privilege of doing business, and that the place of business of the seller controlled on the applicability of the tax. The only point decided there which could possibly be applicable is that the tax is now a gross receipts tax. That does not decide or materially affect our issue. The cigarette tax was in no way involved, nor was any other excise tax. We still have the duty and the right to construe the meaning of the terms used in the Sales Tax Act, as supplemented by the Cigarette Tax Act.

In Robert Williams & Co., Inc. v. State Tax Comm. of Mo. et al., 498 S.W.2d 527 (Mo.1973), a merchant’s ad valorem tax was involved; the Board of Equalization included the amounts of certain federal and state taxes paid on liquor and cigarettes in its assessment of the value of plaintiff’s inventory. The Court held that this was permissible, since the amount of the taxes paid constituted money invested in the merchandise. The Court had no occasion to consider the ultimate incidence or burden of the cigarette tax or any sales tax question. The Court simply held that the taxes had been paid by somebody, and that these amounts entered into the present value, for assessment, of the goods. The Court did note that the payment of the taxes was essential to a sale of the products and to the right to sell them. Defendants, in our case, refer to this as indicating a benefit to plaintiffs; they do so because plaintiffs say that there was no consideration to the sellers from the collection of the cigarette tax. No sales tax was involved in Williams and no issue of “gross receipts.” The Court did not consider the nature of the cigarette tax or the time of its imposition; nor did it consider the agency provision of the cigarette tax law, making the seller the agent for the state; nor did it note the fact that, since the price of the cigarette stamps had already been advanced to the state, the sale was already made lawful, and only a collection for reimbursement remained. Even if the right to sell be considered as a benefit in our case (which is at least doubtful), we do not regard it as sufficient to make it a part of the “amount received” as we have construed it above under the statutes. There was no real consideration to the plaintiffs-sellers here for the collection of the taxes. The two cases last discussed did not effect any substantial change in the law as it affects our case.

We note here, largely because the parties have argued at length about them, the cases of Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 253 S.W.2d 832 (banc 1953), and Kansas City v. Luzier, Inc., 420 S.W.2d 63 (Mo.App.1967). The principal determination in those cases was that money which was not received and retained by a taxpayer for its own use and benefit did not constitute a part of its “gross receipts” under license tax ordinances. Defendants say they are inapplicable because the ordinances did not define “gross receipts” as it is defined here. Be that as it may, they are worthy of note on the general principle.

It remains for us to determine whether the re-enactment of the Cigarette Tax Act in 1974, as already cited, changed the essential effect of the law. The principal changes which defendants claim to negate the material features of the previous act, as we have noted them heretofore, are (old and new compared). Old: “Every person required to pay this tax shall add the amount of the tax to the sales price * * it being the purpose and intent of this law that the tax is in fact a levy on the consumer or user with the person first selling the cigarettes acting merely as an agent of the state for the payment and collection of the tax to the state * * * when any cigarettes upon which stamps have been placed * * * have become unfit for use * ⅞ or destroyed the wholesaler shall be entitled to a refund * * New: “4. It shall be the intent of this chapter that the impact of the tax levied hereunder be absorbed by the consumer or user and when the tax is paid by any other person, the payment shall be considered as an advance payment and shall thereafter be added to the price of the cigarettes and recovered from the ultimate consumer or user with the person first selling the cigarettes acting as an agent of the state for the payment and collection of the tax to the state.

“5. In making sales of cigarettes in the state, a wholesaler shall keep a record of the amount of tax on his gross sales * *.” The provision for recovery from the ultimate consumer or user is new. The new Act provided for refunds of the tax on cigarettes which became unfit for use, as did the old one.

Defendants say: that the term “impact of the tax” is not the same as “a levy on the consumer or user”; that the word “merely” was omitted in the new law in describing the seller as an “agent”; and that the new law adds provisions that the wholesaler shall keep a record of the amount of tax on his “gross sales,” obtain a license, etc. We hold that the change of “levy” to “impact” is insubstantial, as is also the omission of the word “merely.” “Impact” generally implies the force of a thing upon something (Webster’s Third New International Dictionary). The force of a tax upon someone would seem to be the equivalent of a levy upon him. The omission of the word “merely” was wholly immaterial; if one is an “agent” he is an agent, whether “merely” so or not. Both acts provide that the tax shall be “added to ” the sales price; this is the crucial feature and there was no change. Both acts provide for advancement of the tax, to be recovered from the consumer. The requirement that wholesaler shall keep records is certainly not equivalent to the levy of the tax upon him, nor is the requirement of a license. It is a little difficult to understand defendants’ contention that this tax is one on the wholesaler; the statute simply does not justify that contention. The context and meaning of both acts are that the wholesaler merely advances the price of the stamps and bills it to, the retailer who collects it from the consumer. The requirement of keeping a record is simply a safety precaution. The tax is not one on the wholesaler.

Some analogy may be noted in the case of Automatic Retailers of America, Inc. v. Morris, 386 S.W.2d 901 (Mo. banc 1965). There, as in our new Cigarette Tax Act, the seller was required to remit the taxes collected or required, and the purchaser was required to pay the tax. The Court held, this being a transaction tax (prior to 1965), that it was levied upon the purchaser and that the language was not sufficient to impose a tax on the seller. A similar intent in our re-enacted Cigarette Tax Act places the incidence of the tax upon the purchaser.

Both acts provide for a refund of the tax on cigarettes which have been destroyed or have become unusable; in other words, there is no tax unless the sale to a consumer is consummated. It seems obvious that the purpose and intent of the new act were to include very detailed provisions to protect the State against “bootlegging” or cheating on the tax. We find no intent therein to change our conclusion that the incidence of the tax was and is on the consumer, imposed at the time of the retail sale, that the tax was to be an item “added to ” the sales price and not a part thereof, and that the seller is an agent for the State. A sales tax can only be collected from a seller. In other words, we find that the re-enactment of the Cigarette Tax Act did not change the nature or effect of the previous law or the conclusions which we have heretofore drawn.

It has been impossible to consider and discuss the scores of cases cited here by the parties pro and con. We have considered all of those which seem reasonably applicable. We note here that in tax cases the law is strictly construed against the taxing agency, and specific or clearly implied authority for a tax must be shown. State ex rel. Ford Motor Co. v. Gehner, 325 Mo. 24, 27 S.W.2d 1 (banc 1930); State ex rel. Agard v. Riederer, 448 S.W.2d 577 (Mo. banc 1969); Kansas City v. Frogge, 352 Mo. 233,176 S.W.2d 498 (1943); State v. Phillips Pipe Line Co., 339 Mo. 459, 97 S.W.2d 109 (banc 1936). This should be especially true of a tax upon a tax.

While we do not regard it as in anywise binding, we consider also the fact that the Revenue Department did not claim for a period of many years, and until 1971, that the sales tax should be collected upon the amounts paid for cigarette taxes, although the same definition of “gross receipts” has appeared in the sales tax law at least since 1939 (Section 11407, RSMo 1939). Such administrative constructions may be considered by the courts. If our conclusions are unsatisfactory to the legislature, it may readily amend one or both statutes.

We do not affirm that part of the judgment finding and holding that the prior judgment of Judge Richardson in Cause No. 331,621 of the Circuit Court of St. Louis County is res adjudicata or binding as a collateral estoppel. Counts I and II of the petition should be dismissed. The judgments on Counts III and IV are affirmed; those factual allegations of Counts I and II which were incorporated into Counts III and IV by reference may still be considered as parts of Counts III and IV. The Court should, upon the entry of judgment, set out in words or substance the stipulation of the parties for reference in the event of a change in the law hereafter. The Court will, upon receipt of our mandate, modify its judgment as suggested herein. Otherwise it is affirmed.

PER CURIAM:

The foregoing opinion by HENRY I. EAGER, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.

      . Statutory references will be to that revision unless otherwise stated.