Without question these sales were made, properly passed, and there was delivery to the buyers in Tennessee.

The complainant was a distributor of gasoline, as that term is defined in Section 1126 of the Code and was liable for the tax upon the gasoline sold to Moody and Browder unless relieved by the exemption contained in section 13 of chapter 130 of the Public Acts of 1933. Unless this section is applicable to the transactions the gasoline sold to Moody and Browder should clearly be included in the measure of complainant's tax.

Section 13 of chapter 130 of the Acts of 1933, carried into Williams' Code at Section 1140 and in Michie's 1938 Code at Section 1140, is as follows:

"Sec. 13. Be it further enacted, That Section 1140 be amended by striking out said Section and substituting in lieu thereof the following:

"`Gasoline or distillate not previously the subject of an original sale in this State, stored in this State for export to points outside the State, shall not be included in the measure of the tax liability of any distributor or dealer; provided that such gasoline or distillate is stored in a separate tank marked "export tank";

"`Provided that a bond is executed by the distributor or dealer that in the opinion of the Commissioner of Finance and Taxation adequately protects the State against loss of tax in case said gasoline or distillate is not subsequently exported outside the State;

"`Provided that gasoline or distillate stored for export longer that a period of sixty days must be included in the *Page 694 measure of the tax liability of the distributor or dealer so storing such gasoline or distillate.'"

By this 1933 amendment the distributor is relieved of the tax on gasoline stored for export in designated tanks and exported within sixty days from the date of storage. This exemption is granted to a distributor as to the gasoline he exports within the statutory period. It is not granted to the distributor as to the gasoline he sells and delivers in this State, even though that gasoline be sold for export.

To export means to carry or to send abroad. Webster'sInternational Dictionary; Thompson v. United States,142 U.S. 471, 12 S.Ct., 299, 35 L.Ed., 1084. A distributor does neither when he sells and delivers at his place of business in this State.

A case in point is A.G. Spalding Bros. v. Edwards, D.C., 285 F., 784, 785. In that case a manufacturer of sporting goods in New York sold certain baseball bats and balls to a commission house in the same city for export to a business firm in Venezuela. The manufacturer marked the goods for export, delivered them to the export carrier, taking a receipt which it delivered to the purchaser, who made payment. The internal revenue collector demanded the sales tax imposed by the current Act of Congress, Oct. 3, 1917, sec. 600, 40 Stat., 316. The tax was paid under protest and the manufacturer sued for its recovery, relying on the provision of Section 9 of Article 1 of the Federal Constitution reading, "No Tax or Duty shall be laid on Articles exported from any State." The suit was dismissed. Among other things the Court said:

"Here, however, the sale was wholly made and consummated within the United States; the only part played by plaintiff in the actual export movement was that at *Page 695 the request of its purchaser it marked and delivered the goods to the steamship company. So far as plaintiff was concerned, the merchandise might have been removed from the carrier's custody by Scholtz Co. and resold within the United States. The reason for this was that no actual export movement on the part of plaintiff was ever begun."

In the case before us the complainant contributed nothing to the transaction in the way of export movement. The gasoline was delivered to the buyers' trucks at the complainant's place of business and the movement was wholly instituted and controlled by the buyers.

A comparison of the original Code, Section 1126 and 1140 with the amendments to those sections enacted by chapter 130 of the Act of 1933 strengthens the view indicated. The second paragraph of Section 1126 of the Code is in these words:

"The term `distributor' means and includes every person who engages in the business in the state of refining, manufacturing, producing, or compounding gasoline or distillate, and selling the same in this state; and also every person who engages in the business in this state of shipping, transporting, or importing any gasoline or distillate into, and making original sales of the same, in this state."

Section 1140 of the Code reads as follows:

"None of the provisions of this statute shall apply to the sales of gasoline or distillate when sold for, and exported out of the state."

It will be noted under these two Code sections that gasoline sold for export was not included in the measure of the distributor's tax liability. By the second paragraph of section 1 of chapter 130 of the Acts of 1933, Section 1126 of the Code was amended by adding to the *Page 696 definition of distributor one making original sales in this State "for any purpose whatsoever." In section 13 of chapter 130 of the Acts of 1933, amending Section 1140 of the Code, the exemption was accorded to gasoline "stored in this State for export" and subsequently exported, not as in original Code, Section 1140 to gasoline "when sold for [export], and exported out of the state."

It seems to us that these amendments were made by the Act of 1933 to meet the construction of the statute upon which the complainant insists.

It should be noticed that the judgment of the District Court inA.G. Spalding Bros. v. Edwards, supra, was reversed by the Supreme Court in 262 U.S. 66, 43 S.Ct., 485, 486, 67 L.Ed., 865. Since we are construing a statute of this State, the decision of the one Court no more than the other is binding upon us and we like the reasoning of the District Court. Things upon which the Supreme Court based its decision in the Spalding case do not appear in the case before us. There the dealer marked the goods for export, delivered them to an export carrier, and took a bill of lading. Here delivery was made of the gasoline to the buyers' trucks at the distributor's place of business, just as delivery would have been made to any buyer using or vending the gasoline in Tennessee. There the Supreme Court refers to any exercise of the purchaser's right to remove the goods from an export movement as a theoretical possibility and said there was not "the slightest probability of any such change." Here experience with fraudulent gasoline tax evasion has demonstrated that there is great probability of diversion from bona fide export in transactions such as these. There the Supreme Court followed the rule of liberal protection for exports. Here *Page 697 we must follow the rule of strict construction of tax exemptions.

The amendments of the gasoline tax laws heretofore set out enacted in 1933, as we have said, very plainly show that it was not the intention of the lawmakers to exempt from the measure of the distributor's tax liability gasoline handled as was the gasoline sold to Moody and Browder.

McKINNEY CHAMBLISS, JJ., concur in this opinion.

On Petition To' Beheiar.

delivered the opinion of the Court.

Besponding to the petition, we find no error in the statement of the majority opinion that the sales involved “were made, property passed, and there was delivery to the buyers in Tennessee.”

The petitioner does not distinguish between a contract to sell and a sale. Doubtless there was a contract to sell *701 part of the goods entered into in Kentucky. It was, however, a sale of unascertained goods and the transfer of property was in Tennessee. Certainly there was no transfer of property to Browder until the gasoline was removed from petitioner’s place of business in Dyers-burg and placed in the tanks at Union City.

The foregoing, however, is immaterial because the tax here involved is not a sales tax but a tax on the storage of the gasoline.

The proposition urged in the petition for rehearing is that the gasoline with respect to which the tax here was collected was in interstate commerce while in Tennessee, and that the construction given by this Court to section 1140 of the Code, as amended by chapter 130 of the Acts of 1933, brings the statute into conflict with the Commerce Clause of the Constitution of the United States, Article 1, Section 8.

Petitioner also insists that the construction given the statute brings it in conflict with Section 1 of the Fourteenth Amendment of the Constitution of the United States and Section 8 of Article 11 of the Constitution of the State of Tennessee.

This case was presented on the .hearing by the late Mr. Charles M. Bryan of Memphis — an able and extremely careful lawyer. He was doubtless of opinion that the recent decisions of this Court in Texas Co. v. McCanless, Commissioner, 177 Tenn., 238, 148 S. W. (2d), 360; and State v. Standard Oil Co. of Louisiana, December Term, 1940, 1 resolved the constitutional questions against him. The latter case was affirmed by the Supreme Court of the United States, 314 U. S., 573, 62 S. Ct., 112, 86 L. Ed., —.

*702 In argument and in their brief filed in this Conrt on the bearing, petitioner’s counsel raised none of the constitutional questions now brought forward but, almost in as many words, waived those questions.

In the assignments of error and brief filed for the State there was-some argument and citation of authority tending to show that the gasoline involved had passed out of interstate commerce and had come to rest in Tennessee. Counsel for the petitioner, the appellee then, opened the brief with this statement:

“The two questions involved in this case are, we insist, when simply stated, almost self-responsive.

“Opposing counsel as to the first issue has confused the rights of a taxpayer arising under the Commerce Clause of the United States Constitution with the classification of property for taxation provided by Section 1140- of the Code, as amended. We are concerned here only with the meaning of that section, and therefore the first issue is as follows:

“1. When Section 1140 of the Code, as amended, provides that gasoline ‘stored for export’ and ‘subsequently exported outside the State’ shall not be taxed, can there be read into the statute a proviso that this freedom from taxation can arise only when the ‘export’ is made by a conveyance not owned by the purchaser.

“Or, to state the issue with the insertion in appellant’s statement of the words which make the question arise from the established facts:

“1. When an oil company stores gasoline for export in accordance with the provisions of Code Section 1140, and sells and delivers for export to a customer in Tennessee, and the gasoline is forthwith ‘exported out of the state’ by the customer in the same truck into which *703 the gasoline was delivered, is such gasoline subject to the State gasoline tax.”

The brief then goes on to state the second issue, but that matter was decided by this Court in favor of the appellee, petitioner now.

Fhrther in the brief submitted on the original hearing’, referring to an argument of the State, counsel for petitioner said this:

“It is apparently claimed that if the gasoline sales were not in interstate commerce they were not ‘ exports, ’ and certain cases from the Supreme Court of the United States are cited upon the question of what is interstate commerce. These cases while very persuasive upon the point to which they are cited, we earnestly insist, have nothing to do with the instant case.”

There was no reference in the opinion of the Court to the constitutional questions now hroug’ht up. An examination of the opinion of the chancellor does not indicate that any of these questions were submitted to him. Such being the plight of the case, under well settled practice, we can not undertake to pass on these matters now.

This Court will not grant relief that was not asked nor granted below and was sought for the first time on petition to rehear. Nashville v. Wilson, 88 Tenn., 407, 12 S. W., 1082.

Such is the rule in the trial courts. A new trial will not he granted to enable a defendant to avail himself of the matter which he might have presented on the trial hut raised for the first time on his motion for a new trial. Heggie v. Hayes, 141 Tenn., 219, 208 S. W., 605, 3 A. L. R., 150.

*704 We think a rule similar to that announced in Nashville v. Wilson, supra, with respect to petitions for rehearing, prevails in appellate courts quite generally.

“In.civil cases it is a well-recognized rule that questions not advanced on the original hearing will not he considered on petition for a rehearing. This must necessarily he so, because if new questions could he raised oh a rehearing, there would be no end to a case on appeal or error. This rule is especially applicable in the case of a question as to the constitutionality of a statute.” 3 Am. Jur., 350.

“As a general rule a rehearing cannot he had on account of matters or questions different from those urged at the original hearing’ by the party seeking the rehearing; and points which have been waived on the hearing, either expressly or by implication will not be considered on a petition for a rehearing.” 4 C. J. S., Appeal and Error, sec. 1421, p. 2032.

In support of the texts above quoted numerous decisions are cited from the various appellate courts, which decisions well support the rule stated.

Petition to rehear is denied.

delivered the unanimous opinion of the Court on one phase of the case, and a dissenting opinion as to the other phase.

Complainant, a Tennessee corporation engaged in the business of distributing gasoline and other petroleum products, with its principal place of business at Dyers-burg, Tennessee, seeks by its bill herein to recover $25,510.51 gasoline tax paid by it under protest. The chancellor granted the relief sought and defendant has appealed to this court and assigned errors.

DissbNTING Opinion.

(dissenting).

This suit was filed by the Tennessee Oil Company, with its principal office at Dyersburg, to recover gasoline taxes paid under protest in the sum of $25,510.51. This amount included four items of tax, only two of which are involved in this appeal. At the trial before the chancellor, the commissioner conceded that complainant was entitled to recover the taxes set forth in the original bill as Schedules 2, 5, and 6, in the sum of $95.04, $175 and $408.63, respectively, and no appeal was taken from this part of the decree.

E. B. Moody was, at the time of these sales, a resident of-Eloise, Dyer County, Tennessee. He operated stations for the retail sale of gasoline at Eloise and Midway in Dyer County. He also operated a retail sale station at Cottonwood Point in Missouri. Moody operated a bus service 'from Dyersburg to Eloise and used Shell Gasoline purchased from the Tennessee Oil Company, the same brand purchased for alleged export to Missouri. Moody purchased all of his gasoline from complainant, including “tax free” gasoline, on open account. All *698 gasoline purchased by Mm was carried by complainant on one account, wbicb was payable monthly. No tax was paid on this gasoline either by Moody or the oil company. A tax of two cents was paid on it in Missouri.

The section of the Code involved (1140, as amended) is as follows:

“Gasoline or distillate not previously the subject of an original sale in this State, stored in this State for export to points outside the State, shall not be included in the measure of the tax liability of any distributor or dealer; provided that such gasoline or distillate is stored in a separate tank marked ‘export tank’; Provided that a bond is executed by the distributor or dealer that in the opinion of the Commissioner of Finance and Taxation adequately protects the State 'against loss of tax in case said gasoline or distillate is not subsequently exported outside the State; Provided the gasoline or distillate stored for export longer than a period of sixty days must be included in the measure of the tax liability of the distributor or dealer so storing such gasoline or distillate.”

The position of the state as to the so-called export gasoline is set forth by R L. Weakley, the director of Gasoline Tax and Oil Division of Tennessee. He says:

“Q. In other words, if the distributor carries it out himself, or ships it out by carrier, it is all right; but if a man comes in and buys it and comes and gets it himself, the tax has to be paid on it, irrespective of the fact whether you know it went out of the state or not; is that right? A. Yes, that is right.

“Q. In other words, if you knew definitely that it had gone out of the state, but had been hauled by the man’s own truck, you would still hold him for taxes? A. Yes, under the regulations.”

*699 There were no written regulations; but this was, in fact, a custom.

There is no contention by the State that it lost any revenue by the gasoline exported to Browder. On the contrary, the trucks were checked and they corresponded in amount to the gasoline reported as export. This was also the situation with respect to the gasoline sold to Moody and hauled to Missouri and the tax there paid.

It seems to be argued that after the words in the first paragraph of the statute <!< stored in this State for export” should be added the words “and that is to be carried or sent by the oil company” to points outside the state, etc. In other words, the State contends that in order for the exported gasoline to be free from the tax it must be carried or sent across the state line by the oil company.

The writer cannot agree with this contention. The statute does not so state, and this should not be read into the statute. This is a matter of legislative concern. This very thing was contemplated when the very next paragraph of the law provided for the execution of a bond to protect the state “against loss of tax in case said gasoline or distillate is not subsequently exported outside the State.”

Had such a situation as the State contends been contemplated,-the legislature could have easily added, after the words in the second paragraph “subsequently exported outside the State,” the words “by the oil company or its agent. ’ ’

No construction of a statute is necessary if the language creates no doubt of the legislature’s intent. State v. Howard, 139 Tenn., 73, 201 S. W., 139; Hickman v. Wright, 141 Tenn., 412, 210 S. W., 447.

*700 Words are to be nsed in their natural and ordinary sense. Sanford Realty Co. v. City of Knoxville, 172 Tenn., 125, 110 S. W. (2d), 325; Tobin, Commissioner, v. Estes, 168 Tenn., 403, 79 S. W. (2d) 550; Hedges v. Shipp, 166 Tenn., 451, 62 S. W. (2d), 49.

There must be some ambiguity arising from the words used, or the different sections of the Act, or there is no need for construction, and the person ashing for construction must point out the ambiguity. Mathes v. State, 173 Tenn., 511, 121 S. W. (2d), 548; Hickman v. Wright, 141 Tenn., 412, 210 S. W., 447.

The active loss of revenue will not justify the alteration of the clear terms of the Act.

It is incumbent on the dealer to show that the gasoline is exported.

The original sale is to be made for export. One cannot buy gasoline from a dealer, and subsequently sell for export, for it would not be gasoline “not previously the subject of an original sale in this State.”

For the reason given, the writer is of the opinion that the decree of the chancellor was correct and should be affirmed, and therefore respectfully dissents from the majority opinion.