
    EPPSTEIN v. STATE.
    (Supreme Court of Texas.
    Feb. 7, 1912.)
    1. Intoxicating Liquors (§ 91) — Occupation Tax — Wholesale Dealers — “Receipt.”
    Acts 30th Leg. (1st Ex. Sess.) c. 18, § 11, provides that wholesale dealers or distributors of intoxicating liquors, shall make a quarterly report to the Comptroller of Public Accounts, showing the “gross amount collected and uncollected from any and all sales made within this state * * * during the quarter next preceding,” and “at the time of making said report shall pay * * * an occupation tax for the quarter beginning on said date, equal to one-naif of one per cent, of said gross receipts from said sales as shown by said report.” Eeld, that the tax was on the gross sales whether collected or uncollected during the preceding quarter; the word “receipts,” when used in a commercial sense, meaning the receiving of obligations or promises to pay, whether written or verbal, as well as cash.
    [Ed. Note. — For other cases, see Intoxicating liquors, Dec. Dig. § 91.
    
    For other definitions, see Words and Phrases, vol. 7, pp. 5987-5990.]
    2. Statutes (§ 61) — Construction — Construction Favoring Validity.
    If an act is fairly susceptible of two constructions, one of which invalidates it, and the other of which effectuates it, the latter should be adopted.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 56; Dec. Dig. § 61.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by the State against Milton L. Epp-stein. From a judgment of the Court of Civil Appeals (138 S. W. 1124) affirming a judgment for plaintiff, defendant brings error.
    Affirmed.
    W. L. Evans and I. M. Standifer, for plaintiff in error. Jewel P. Lightfoot, Atty. Gen., and James D. Walthall and John W. Brady, Asst. Attys. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   DIBRELL, J.

This is a suit by the state •of Texas against Milton L, Eppstein, to recover the sum of $2,012.15 principal, alleged to be due the state by defendant for occupation taxes as a wholesale dealer and distributor of spirituous, vinous, and malt liquors, capable of producing intoxication, as provided for by section 11 of chapter 18, of the Acts of the Thirtieth Legislature (1st Ex. Sess.) 1967. It was alleged by the state “that the defendant, as such wholesale dealer, sold within the state of Texas from July 1, 1907, up to and including October 1, 1909, spirituous, vinous and malt liquors, capable of producing intoxication, amounting to the total sum of $402,429.96, of which amount there was sold for cash $156,882.14, the remainder of said sales, amounting to $245,547.-82 being sold on credit,” and that by reason of such sales the defendant became and was indebted to the state of Texas in the sum of one-half of one per cent, of said gross sales collected and uncollected, amounting to the principal sum sued for, on which interest was claimed at 6 per cent, on the amount due and unpaid each quarter respectively from the due date and a penalty of 10 per cent.

The defendant answered by general demurrer and special plea, in effect admitting all the material allegations of the state’s petition, except his liability to pay the tax of one-half of one per cent, on such portion of his gross sales, as «shown by his several reports to have been uncollected, and that he had at the time such tax became due tendered payment to the proper officer of said tax on such portion of his sales as had been collected, and denying his liability under the statute to pay the tax on such uncollected sales.

The cause was tried by the court without a jury, and judgment was rendered for the state for the principal amount sued for, together with the penalty of 10 per cent.

No issue of fact was presented, and the sole question of law is whether the wholesale dealer in intoxicating liquors is required under the act of 1907, § 11, 30th Legislature, to pay the occupation tax of one-half of 1 per cent, on the gross sales of his business in this state, whether collected or uncollected, during the quarter for which he is to pay, or whether he is required only to pay on such amount of such gross sales as he may collect during the quarter.

The issue is determinable upon the proper construction to be given the legislative act levying the occupation tax in question (section 11 of chapter 18 of the Thirtieth Legislature) which is as follows; “Each and every individual, company, corporation or association created by the laws of this state or any other state, who shall engage in his own name or in the name of others, or in the name of its representatives or agents in this state in the business of a wholesale dealer or a wholesale distributor of spirituous, vinous or malt liquors or medicated bitters capable of producing intoxication, shall on or before the first day of July, 1907, and quarterly thereafter, make a report to the Comptroller of Public Accounts, under oath of the individual, or of the president, treasurer or superintendent of such company, corporation or association, showing the gross amount collected and uncollected from any and all sales made within this state of any of said articles during the quarter next preceding. Said individuals, companies, corporations and associations, at the time of making said report shall pay to the Treasurer of the State of Texas, an occupation tax for the quarter beginning on said date, equal to one-half of one per cent, of said gross receipts from said sale as shown by said report.”

From a careful reading of the above section we conclude that those engaged in the wholesale or wholesale distribution of intoxicating liquors are required to make quarterly reports of the gross amount of any and all sales of such liquors, whether sold for cash or on credit, for the purpose of forming a basis for the aggregate amount of the occupation tax to be paid by such dealer or distributor during each quarter. The statute does not require separate statements or items showing the gross amount collected and the gross amount uncollected from any and all sales made, and is not, as we think, susceptible of such construction. It appears perfectly clear to us from the wording of the section that it was intended that such report should show the gross amount of sales made during any quarter, and that any and all sales should be reported, whether collected or uncollected, as constituting the gross amount of sales. That portion of the section which levies the tax of one-half of l-per cent, places same upon “said gross receipts from said sales,” showing evidently that it was meant to place the tax on the gross receipts, the ascertainment of which is provided for in the previous lines as “the gross amount collected and uncollected from any and all sales.” No significance arises from the use of the word “receipts” as indicating cash in the connection in which it is used. So far as we know or are able to ascertain, the word “receipts,” when used in a commercial sense, as in this case, is commonly understood to mean the taking in or receiving obligations or promises to pay, whether written or verbal, as well as cash. When applied to receipts an obligation to pay is as tangible as money. In the sense and in the connection the words “said gross receipts from said sales” are used in the section under discussion, they clearly mean the volume of business done, the quantum of obligations and money received out of any and all sales of the articles the subject of the occupation tax. If any doubt existed as to the meaning of the words, “gross receipts,” independent of their use in connection with any other portion of the section in which they occur, such doubt is dispelled when notice is taken that the tax is placed upon “said gross receipts from said sales,” meaning, as defined in the previous lines, the gross amount of said sales. Whatever might be conceived to be the meaning of the word “receipts” in any other connection, or in the general acceptation of its meaning, in this instance the Legislature has given to it the signification of the volume of business done by the wholesale dealer or distributor, as shown by the report exacted. No question can be raised, we conceive, as to the authority of the lawmaking power to give this meaning to such word. As we interpret the language of. this section, to give the meaning to the word “receipts,” as contended for by plaintiff in error, would render the section of the law inoperative, for the reason that the wholesale dealer or distributor of intoxicating liquors could not be required to furnish the data upon which to base the tax, since the report required of him need only show the aggregate amount of sales including those collected and uncollected. Such a holding would thwart the legislative intent.

In this connection it will be proper to mention the contention of the state that if such dealers are required by section 11 to pay the tax only on cash receipts from sales, the purpose of the law would be helpless to reach any sales of such articles as were made on a credit extending beyond the quarter for which the tax is required to be paid, and thus the section would become ineffectual to-produce one dollar of revenue under such circumstances. If such effect is given this section it is possible for any such dealer to so conduct his business on a credit as to render himself not liable for the tax, no matter what might be the volume of business, and this might be done without any intentional evasion of the law and without perpetrating a fraud on the state. Besides this it would present the anomaly of making it possible for two such competitive dealers or distributors in the same locality side by side conducting the same volume of business, one receiving cash for his sales and paying a tax of one-half of 1 per cent, on the gross amount of such sales, and the other giving credit not exceeding 90 days and less as the quarter advances, and paying to the state not one dollar of occupation tax. However forceful and subtle may be the argument that leads the effect of the act to such a conclusion it cannot receive sanction by this court.

These conclusions call for the application of that indisputable rule of statutory construction that where an act is fairly susceptible of two constructions, one of which would render it inoperative, and the other give it force and effect, the latter should be' adopted. Black on Interpretation of Law, p. 316, § 119.

We are referred by counsel for plaintiff in error in able and comprehensive briefs and arguments to various rules of statutory construction. We have concluded, however, that this is not a case where artificial, arbitrary or subtle rules of statutory construction are applicable. Nor is it a case where technical or conventional meaning of words are in any great degree helpful, for the Legislature has exercised its authority to color the words used with a particular and definite meaning and such vehicles of thought so laden must bear to their destination the legislative intent thus colored.

We doubt whether a reference to other portions of the act of the Thirtieth Legislature of which section 11 is a part, throws any light upon the meaning intended by the Legislature in its use of the words “gross receipts” in section 11, for the reason that in section 9 of the act the meaning given those words seems to indicate only amounts collected, while it is equally clear that in section IQ the same meaning is given the same words when applied to amounts collected and uncollected.

We have given the question due consideration and have concluded that the Legislature intended and so expressed such intent to require wholesale dealers or distributors of intoxicating liquors to pay one-half of 1 per cent, on the gross amount of their sales of such articles, whether collected or uncollected, and therefore we affirm the judgment of the Court of Civil Appeals.

Ordered affirmed.  