Wetterau, Inc. v. Director of Revenue , 1992 Mo. LEXIS 143 ( 1992 )

PRICE, Judge,

dissenting.

I dissent from the majority’s opinion because it fails to give effect to the totality of § 144.030.2(12), RSMo 1986. The statute exempts from sales tax not only expenditures for “electrical energy used in the actual primary manufacturing, processing, compounding, mining or producing of a product”, but also for “electrical energy used in the actual secondary processing or fabricating of the product.” While a fair question may exist as to whether maintaining food in a frozen state is “processing”, the inclusion in the statute of the term “secondary processing” requires that the decision of the Administrative» Hearing Commission be affirmed.

The record below establishes that the freezing of food is a necessary process for wholesale and retail sales. The freezing process arrests natural spoilage and, as the majority opinion notes, the “foods’ reduced temperature must be maintained continuously to inhibit its natural degradation.”

The initial freezing of food has been universally recognized to constitute processing. See In re Taxes, Hawaiian Pineapple Co., 45 Haw. 167, 363 P.2d 990, 1004 (1961); State Tax Com’n v. Haener Bros., Inc., 121 Idaho 741, 828 P.2d 304, 312 (1992); Dept. of Revenue v. Cave Stone, Inc., 427 N.E.2d 922, 923 (Ind.App.1981); Manning’s Famous Foods, Inc., v. Commission, 3 Or.T.R. 249, 250 (Or.Tax 1968). Maintaining food in a frozen state presents a more difficult issue. While maintenance of the frozen state does not transform the food to a different state, it does maintain or continue the food’s existence in a state that is not natural. The continuation of the frozen state is as important and necessary to the preservation process as is the initial freezing. In fact, the former “process” would be wholly useless and incomplete but for the subsequent maintenance.

The two courts that have addressed the issue of whether continued refrigeration is “processing” have decided it is not. Fischer Artificial Ice & Cold Storage Co. v. Iowa State Tax Comm’n, 81 N.W.2d 437, 441-2 (Ia.1957); Warren v. Fink, 146 Kan. 716, 72 P.2d 968, 970 (1937). They apparently draw a legal line between the initial hard freezing and the subsequent maintenance of the foods’ frozen status, where I doubt that a practical one could exist.

We need not wrestle with this issue because our Missouri statute includes language not considered in either the Iowa or Kansas cases. Those cases are limited to consideration of the term “processing”. Section 144.030.2(12) provides a broader exemption. It also exempts “secondary processing”.

Black’s Law Dictionary 1205 (6th ed. 1990) defines “process” as:

A series of actions, motions, or occurrences; progressive act or transaction; continuous operation; method, mode or operation, whereby a result or effect is produced; normal or actual course of procedure; regular proceeding, as, the process of vegetation or decomposition; a chemical process; processes of nature..!. Process is mode, method or operation whereby a result is produced; and means to prepare for market or to convert into marketable form. [Emphasis added.]

Black’s also defines “secondary” as “[o]f a subsequent, subordinate or inferior kind or class; generally opposed to ‘primary’.” Id. at 1351.

Accordingly, the Court must interpret the statute at issue so as to give effect to the express distinction between processing” and “secondary processing” wherever such a distinction is indicated by a given factual situation. State ex rel. Union Elec. Co. v. Goldberg, 578 S.W.2d 921, 924 (Mo. banc 1979). “It is a well established presumption that the General Assembly did not intend for any part of a statute to be without meaning or effect. It is not presumed to have intended a useless act.” Sheldon v. Board of Trustees of the Police Retirement System, 779 S.W.2d 553, 556 (Mo. banc 1989). I believe that the continued refrigeration required after the initial freezing of meat fits squarely into the statutory scheme that exempts electricity used in secondary processing from sales tax. I would affirm the decision of the Administrative Hearing Commission and allow the exemption.