If the Legislature has the right (as we have held that it has) to single out the business of selling gasoline and impose on it an excise tax equal in many instances to the wholesale price of each gallon sold, while exempting kerosene and other similar fuels entirely from the tax, I see little constitutional difficulty to be encountered in a legislative attempt to single out for special taxation that class of merchants whose business is presumptively so profitable that they can make sufficient profits in three months to pay twelve months rent and enjoy a nine-months *Page 746 vacation from business on the profits of the three. The proposition is analogous to income tax laws which tax the recipient of earned incomes at one rate and the recipient of unearned incomes at a higher rate, and which tax the recipient of an income of small amount at one rate and the recipients of higher incomes on a progressively increasing and higher rate.
The chain store tax statutes have been sustained as against the constitutional objection that they classify and tax merchants according to their peculiar manner of transacting business (Liggett Co. v. Lee,
Unfortunately, however, for the contentions of the State authorities who seek to enforce the tax, the Legislature, if it intended to reach and tax such businesses, has through inadvertence in the use of statutory language, defeated the purpose it had in mind. It has by the express unambiguous terms of its own statute declared that it shall not apply to merchants having a permanent place of business in this state throughout the year who engage in business therein only for a portion of the year. I think the word "therein" must be construed as referring to the phrase "place of business' and not to the word "state" under the rule that where a tax statute is susceptible of two meanings, or is ambiguous, the construction favorable to the taxpayer must prevail. See Stateex rel. Packard v. Cook,
