Ray Smith Ford Sales, Inc. v. Mitchell

ROBERT R. WELBORN,

dissenting.

Section 1.140, RSMo 1978 provides:

The provisions of every statute are sever-able. If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed that the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

The repeal and reenactment of Section 150.040 in 1976 (1976 Mo.Laws 662) was for the obvious purpose of providing an alternative method of valuing, for purpose of the so-called “merchants and manufacturers tax,” inventories of motor vehicle dealers.

In McKay Buick, Inc. v. Love, 569 S.W.2d 740 (Mo. banc 1978), the challenge to the constitutionality of the 1976 enactment was directed solely to the provisions of Section 150.040 2. The court found that provision unconstitutional because it would have determined ad valorem tax liability on the basis of gross receipts.

The language of the 1976 enactment inserted in 150.040 1, “except new motor vehicles,” was not an issue in McKay.

The respondent now invokes that language to defeat its liability to pay the merchants and manufacturers tax for the year 1979.

Given the over-all purpose of the 1978 amendment, the language here in issue was intended to assure that motor vehicle dealers would not be subjected to a tax under subparagraph 1 as well as a tax under sub-paragraph 2. Certainly there is no basis for presuming that the legislature intended to exempt motor vehicles from the merchants and manufacturers tax, the presumption which must be relied upon if the language of 150.040 1 is to stand, now that 150.040 2 has been found unconstitutional. Any presumption that the legislature would have enacted 150.040 1, standing alone, would necessarily give rise to questions of exemption from taxation, with the attendant constitutional problems.

This is properly a case for declaring that, with the holding of McKay II of the unconstitutionality of 150.040 2, the entire enactment of which it was a part failed.

The 1976 enactment having failed, Section 1 of the act repealing Section 150.040, RSMo 1969, is of no effect. State on inf. of McKittrick v. Cameron, 342 Mo. 830, 117 S.W.2d 1078, 1082-1083 [10, 11] (banc 1938); Missouri Ins. Co. v. Morris, 255 S.W.2d 781, 782-783[2, 3] (Mo. banc 1953). Section 150.-040, RSMo 1969, providing no exception for automobile dealers, was, therefore, the basis for the respondent’s tax liability for the year 1979, and the tax was properly assessed against the respondent.

I would reverse the judgment.