BUSHNELL, J. I am unable to agree with the opinion proposed by Mr. Justice BOYLES, in which he distinguishes the case of Acorn Iron Works, Inc., v. State Board of Tax Administration, 295 Mich. 143 (139 A.L.R. 368). I cannot distinguish the stipulated facts in this case from the circumstances surrounding the transactions involved in the Acorn Case. The transit-mixed concrete involved in plaintiff's operations when poured in place ceased to be personal property and became a part of the realty, and is, therefore, not subject to the tax and is not affected by the amendment.
In case of conflict, the latter governs. It is not within the power of the department of revenue to extend the scope of the act."); Acorn Iron Works v Auditor Gen, 295 Mich 143, 151; 294 NW 126 (1940) ("The state board of tax administration from time to time has changed its construction and method of enforcing the sales tax law as it affects building trade transactions; but in this connection it is sufficient to note that liability for payment of the sales tax is controlled by statute. It cannot be imposed by rulings or regulations of the board."); Walgreen Co v Macomb Twp, 280 Mich App 58, 71; 760 NW2d 594 (2008) ("A rule is invalid when it conflicts with the provisions of the governing statute.").
"A contractor when fabricating personalty into realty neither sells, resells, sells at retail, nor can he be considered a retailer." Duhame v. State Tax Commissioner, 65 Ariz. 268 ( 179 P.2d 252); Acorn Iron Works v. State Board of Tax Administration, 295 Mich. 143 ( 294 N.W. 126, 139 A.L.R. 368); City of St. Louis v. Smith, 342 Mo. 317 ( 114 S.W.2d 1017); Wood Preserving Corp. v. State Tax Commission, 235 Ala. 438 ( 179 So. 254); State Board of Equalization v. Stanolind Oil Gas. Co., 54 Wyo. 521 ( 94 P.2d 147); Atlas Supply Co. v. Maxwell, 212 N.C. 624 ( 194 S.E. 117); Albuquerque Lumber Co. v. Bureau of Revenue, 42 N.M. 58 ( 75 P.2d 334); Utah Concrete Products Corp. v. State Tax Comm., 101 Utah 513 ( 125 P.2d 408); State v. Christhilf, 170 Md. 586 ( 185 A. 456); State v. J. Watts Kearny Sons, 181 La. 554 ( 160 So. 77); Blome Co. v. Ames, 365 Ill. 456 ( 6 N.E.2d 841); Herlihy Mid-Continent Co. v. Nudelman, 367 Ill. 600 ( 12 N.E.2d 638, 115 A.L.R. 485); 139 A.L.R. 373. "A contractor who buys building material is not one who buys and sells — a trader. He is not a `dealer', or one who habitually and constantly, as a business, deals in and sells any given commodity. He does not sell lime and cement and nails and lumber. . . Sales to contractors
As noted by plaintiffs, the EMS statute provides no express authority for the LMCAs to levy taxes. As acknowledged by MDPH, such express authority is needed in order for a state-created government agency to levy taxes or fees. Acorn Iron Works v. Auditor General, 295 Mich. 143, 150, 294 N.W. 126 (1940); Consolidated Paper Co. v. Nims, 306 Mich. 216, 10 N.W.2d 833 (1943). Defendant TCEMCA does not assert that it has a right, either expressed or implied, to collect taxes or otherwise impose mandatory fees on EMS service providers.
— REPORTER. Counsel for appellants have called attention to the decision of this Court in Acorn Iron Works, Inc., v. State Board of Tax Administration, 295 Mich. 143 (139 ALR 368). Said decision was referred to in R.C. Mahon Co. v. Department of Revenue, 306 Mich. 660, and attention directed to the fact that the decision in said case was controlled by the statute, the sales tax act, prior to the amendment thereof by PA 1939, No 313. In the later case it was held that plaintiff contractor was subject to the payment of a sales tax, except as to its contracts with the United States, the State of Michigan, institutions or subdivisions of either, and likewise with reference to certain designated entities as to which the legislature had specifically granted exemption.
Section 57-3902, NDRC 1953 Supp. No tax is imposed upon the sale of real estate. Paragraph 5 does not enlarge the class of property upon which the sales tax is imposed. If the personal property has become real estate a sale thereof is no longer subject to the sales tax. The situation here is not unlike that involved in Acorn Iron Works v. State Board of Tax Administration, 295 Mich. 143, 294 N.W. 126, 127, 139 A.L.R. 368, from which we quote: "In each case plaintiff's undertaking was to furnish the labor and structural steel requisite to the performance of its contract in erecting, repairing or altering a structure in accordance with designated plans and specifications.
The questions of jurisdiction and venue that are raised by defendant must first be resolved. It is argued that the Ingham circuit court was without jurisdiction because plaintiffs do not reside in that county. It is sufficient to say that, prior to the institution of the suit, the parties, in conference, agreed that, for the convenience of both the department and the taxpayer, the suit should be instituted in Ingham county and that neither party would raise any question as to the jurisdiction of the court. Defendant further argues that declaratory proceedings are improper. A short answer to that question is that this procedure was used and approved in the following cases: Acorn Iron Works, Inc., v. State Board of Tax Administration, 295 Mich. 143 (139 ALR 368); Metzen v. State Board of Tax Administration, 301 Mich. 532; Michigan Allied Dairy Ass'n v. State Board of Tax Administration, 302 Mich. 643; R.C. Mahon Company v. Department of Revenue, 306 Mich. 660, and others. The more important question is whether the taxpayer is liable.
Procedure by which taxes may be validly assessed is strictly statutory. J.B. Simpson, Inc., v. O'Hara, 277 Mich. 55; Acorn Iron Works, Inc., v. State Board of Tax Administration, 295 Mich. 143 (139 ALR 368). We do not find in the statute any authority for the State tax commission serving upon the taxpayer a notice of the character of exhibit A. Instead the above quoted statute specifically provides the procedure which so far as material here is in substance as follows: (1) The issuance of an order directing the assessor to appear at a stated time and place with his assessment roll and the sworn statements of the person or persons whose property or whose assessments are to be considered; (2) Publication of such order and "where practicable, personal notice by mail" to the person whose assessment is to be considered; and (3) Hearing at the time and place designated at which "all persons affected * * * by review of said assessments thus provided for may appear and be heard."
Decision therein is not controlling of defendant's right in the instant case to demand payment of a fee incident to the reduction of plaintiff corporation's authorized capital stock represented by its no par value shares of stock. Decision herein must be in accord with our holding in Acorn Iron Works, Inc., v. State Board of Tax Administration, 295 Mich. 143 (139 A.L.R. 368), wherein at page 151 we quote from J.B. Simpson, Inc., v. O'Hara, 277 Mich. 55, the following: "`Tax exactions, property or excise, must rest upon legislative enactment and collectors can act only within express authority conferred thereby, the scope of such laws cannot be extended by implication or forced construction, and language, if dubious, is not resolved against the taxpayer.'"
Such liability may not be imposed by rules or regulations of the department. Acorn Iron Works, Inc., v. State Board of Tax Administration, 295 Mich. 143 (139 A.L.R. 368). By the same process of reasoning, liability for a tax imposed by statute may not be obviated by administrative action on the part of those charged with enforcing the law. The construction given to a legislative enactment by those charged with the duty of administering it is entitled to respectful consideration, especially so when the statute is ambiguous in its provisions.