Crockett, Secy. of State v. Salt Lake County

270 P. 142, 72 Utah 337, 60 A.L.R. 867, 1928 Utah LEXIS 30

• Court: Utah Supreme Court
• Decided: March 28, 1928
• Docket: No. 4584.
• Status: Published

Opinions

GIDEON, J.

By this action the secretary of state seeks to recover from Salt Lake county a tax of 2% cents per gallon on 60, 168 gallons of motor vehicle fuels, to wit, gasoline, purchased and used by the county between March 30, 1924, and October 10, 1924, together with a penalty for failure to pay such tax.

After the institution of the action Salt Lake City was permitted to intervene and join in the defense, and the Utah Oil Refining Company, a private corporation, was permitted to intervene on the side of plaintiff.

The court found, and this finding is not challenged, that the defendant Salt Lake county purchased motor vehicle fuels (gasoline) from E. P. Wilbur & Co., a corporation, f. o. b. Los Angeles, Cal., and caused the same to be shipped into the state of Utah, and there did use said gasoline within the state of Utah and on the highways and roads of the state between the dates and in the amount above stated. The court also found that all of the motor vehicle fuels so purchased were used exclusively by the county in its motor vehicles within the state, and that none of it was resold; also that the gasoline so purchased was subject to the gasoline excise tax provided for in the state law, and that said county is liable for the payment of said tax on each and every gallon of the said motor vehicle fuels to the plaintiff as secretary of state. Judgment was entered in the lower court in favor of plaintiff for the amount of the tax and the penalty provided for nonpayment.

. Authority to maintain an action by the secretary of state for the nonpayment of a tax upon motor vehicle fuels is granted by chapter 39, Laws Utah 1923. Subdivision (a), section 1, of that act states that the term “motor vehicles” shall include and mean “all vehicles, engines or machines movable or immovable, which are operated or propelled by combustion of gasoline,” etc. In subdivision (b), gasoline is enumerated as one of the “motor vehicle fuels.” Subdivisions (c) and (d) are:

“(c) The term ‘distributor’ is hereby defined as any person, firm or corporation who imports or causes to he imported, motor vehicle fuels, as herein defined, for use, distribution or sale, in quantities other than the original packages in which the same was imported, and after the same reaches the state of Utah; and also any person, firm or corporation who produces, refines, manufactures or compounds such fuel in the state of Utah for use, distribution or sale in this state.

“(d) The term ‘retail dealer’ is hereby defined as any person, firm or corporation who purchases from a distributor within the state, any motor vehicle fuels in the original packages in which the same was imported, for use, distribution or sale within the state in quantities other than in the original packages; or who imports into the state, motor vehicle fuels in the original packages for use of such person, firm or corporation.”

It is quite apparent that the defendant county falls within the class defined as “retail dealer.” The gasoline purchased by the county was in original packages when so purchased, and was imported into this state for the use of the county, and was so used by it in carrying on the affairs of the county. It is provided by section 4 of said chapter 39:

“There is hereby levied and imposed, an excise tax of two and one-half cents per gallon upon the sale, or use as hereinafter provided, of all motor vehicle fuels sold, or used as hereinafter provided, in this state after the taking effect of this act, excepting, however, such motor vehicle fuels as are or have been brought into this state and sold in original packages as purely interstate commerce sales. If any motor vehicle fuels have been purchased outside of the state and brought into this state in original packages or purchased within the state in original packages from a distributor for the use of the consumer, then such tax shall be imposed upon the use of such fuels.”

Section 7 of the act is:

“If any distributor or retail dealer shall fail or refuse to pay any tax when the same becomes due, the same shall be delinquent on the first day of the next succeeding month. If not paid before such date there shall be imposed a penalty of twenty-five per cent of the amount- of the tax. The amount of such tax with the penalty shall bear interest at the rate of twelve per cent, per annum from the date of delinquency until the same is paid.”

Some suggestion is made in the argument of appellants that the court ruled that Salt Lake County is neither a retail dealer nor a distributor as defined by the gasoline tax law, but also ruled that the county is liable for the tax with interest and penalty. It is true that the court did not find specifically that the county is a distributor or retail dealer, but the court did find that the defendant county purchased the gasoline in the state of California and caused the same to be shipped into this state and used it within the state. That finding fixed the status of the county as a retail dealer as that term is defined in subdivision (d) above quoted.

The tax, by the terms of section 6 of the act, is directed to the sale or use of motor vehicle fuels. It is provided, section 4 above quoted, that, if the fuels have been purchased outside of the state and brought within the state “for the use of the consumer, then such tax shall be imposed upon the use of such fuels.” It quite clearly appears from the facts found by the court that the tax sought to be collected by this action is one imposed for the use of the fuels by the county. The power of a state to impose such a tax is not questioned by appellants.

The contention of appellants, as stated in their brief, is:

“(1) That the gasoline tax law did not impose upon Salt Lake county a tax upon gasoline used by the county in discharging its public works.

“(2) That, even though the tax law did impose upon Salt Lake county a tax for gasoline used by it, it did not impose any penalty and interest for nonpayment; said penalty and interest being imposed only upon dealers and distributors failing to pay the tax.”

It is contended in the brief of appellants:

“The general rule * * * is that the state and the political subdivisions of the state and municipal corporations which are charged with the administration of law and promoting of public welfare are not burdened with a tax, unless the tax statute expressly so declares. The principal ways in which Salt Lake county uses gasoline are in the construction, maintenance, and repair of the public highways of the county, in the operation of automobiles in connection with policing the county in the prevention of crime and in inspection and providing for the relief of the poor.”

It is also contended on behalf of Salt Lake City that the gasoline purchased by it was used for similar purposes within the state, and in addition in extinguishing and preventing fires and the performance of its public duties.

The right of appellants to be relieved or excused from paying the tax sought to be recovered must be found, if found at all, in an implied exception to the provisions of the statute quoted. There is no express language found in the act, either in the parts quoted or elsewhere, indicating an intention on the part of the Legislature to exempt appellants from the duty of paying the tax therein specified. The contention of appellants, or, rather, the theory upon which the argument is founded that the Legislature did not intend this tax to be applicable to cities and counties is probably as succinctly and clearly stated in Trustees of Public Schools v. City of Trenton, 30 N. J. Eq. 681, as follows:

“The immunity of the property of the state, and of its political subdivisions from taxation, does not result from a want of power in the legislature to subject such property to taxation. The state may, if it sees fit, subject its property, and the property owned by its municipal divisions, to taxation, in common with other property within its territory. But inasmuch as taxation of public property would necessarily involve other taxation for the payment of the taxes so laid, and thus the public would be taxing itself in order to raise money to pay over to itself, the inference of law is that the general language of statutes prescribing the property which shall be taxable, is not applicable to the property of the state or its municipalities. Such property is, therefore, by implication, excluded from the operation of laws imposing taxation, unless there is a clear expression of intent to include it.”

Numerous other cases and authorities are cited in the brief supporting the general rule of construction stated by the New Jersey court. The cases cited by appellants, with probably one or two exceptions, relate to or affect property devoted to a public use. The courts were considering and discussing the power of general taxation and not an excise tax such as we have in question here. Some of the courts (notably in Foster v. City of Duluth, 120 Minn, 484, 140 N. W. 129, 48 L. R. A. [N.S.] 707) base their argument on the claim that to permit property used by a municipality for public use to be taxed, and upon failure to pay the tax sell the property, would change the nature from a public use to a private use. In Foster v. City of Duluth, supra, the court said:

“It is technically inaccurate to say that it [property of the state and its political subdivisions] was exempt from taxation, for the term ‘exemption’ rather presupposes a liability removed by some constitutional or statutory provision. The property is ‘exempt,’ not because of any such provision declaring it exempt, but because of its character as public property devoted to a public use.”

In this case the gasoline used by the county cannot be said to have been impressed to a public use in the .sense that other property, either real or personal, may be devoted to a public use.

The theory and the intent of the Legislature in levying the tax, as provided in the act, is:

“For the payment of interest and sinking fund charges on state road bonds until such fund shall contain an amount which, added to any other funds available for the payment of interest and sinking fund charges on state road bonds, will be sufficient to pay all interest and sinking fund charges on state road bonds which shall become due during the calendar year. After such fund has been credited with an amount which, added to any other funds available for the payment of interest and sinking fund charges on state road bonds, will be sufficient to pay such interest and sinking fund charges which shall become due during the calendar year, the state treasurer shall credit all receipts from the said excise tax during the remainder of the calendar year to the credit of the state highway and maintenance fund.” Section 6.

It thus appears that the tax is not for the purpose of raising revenue for the payment of the usual and ordinary expenses of state government, but for the construction and maintenance of public highways. These highways are open, not only for the use of the citizens of the state, but for others traveling within the state and for the counties and cities in the discharge of their public duties. While it is true the municipalities of the state shall be subject to the tax, nevertheless there is no provision or language found in the act which indicates the intent of the Legislature to exempt or relieve counties or cities from paying the tax imposed on all who use motor vehicle fuels for vehicles, engines, or machines, movable or immovable, within the state. On the contrary the admitted purpose of the legislation and the directions contained in the act as to the disposition of the funds so raised not only fail to indicate an intention on the part of the Legislature not to exempt municipalities from payment of the tax, but negative any inference that such municipalities were intended to be relieved from the payment of the tax.

The tax levied is by the statute designated an excise tax; that is, it is a tax for the privilege of selling motor vehicle fuels and likewise for the use of such fuels when purchased outside of the state and brought within the state for use. It is in no sense a general tax upon the property of the municipality, but is a tax charged against the municipality for the privileges included within the terms of the act and which are made subject to the tax. It does not purport to be a tax against any specific property, real or personal.

The second and third headnotes to Foster & Creighton Co. v. Graham, 154 Tenn. 412, 285 S. W. 570, 47 A. L. R. 971 are:

“ ‘Direct tax’ is one imposed directly on property according to its value, and is generally spoken of as property or ad valorem tax. * * *

“ ‘Indirect tax’ is tax on some right or privilege, and is also called excise or occupation tax.”

The third headnote to City of Portland v. Kozer, 108 Or. 375, 217 P. 883, is:

“The rule that exemption of property from taxation does not include exemption from excise or privilege taxes applies to state property.”

In that case the city of Portland sought to enjoin the secretary of state from the collection of a tax imposed by the statutes of Oregon on gasoline used by the city. The court held the tax to be a charge against the dealer and dismissed the action. The court pointed out that undoubtedly the amount of the tax finally falls upon the purchaser, as it would be natural for the seller to add the amount of the tax to the price of the commodity. In the course of the opinion, the court uses this language:

“The language of the later statute is definite as to the persons who are required to pay the tax therein provided. The municipalities are in no way relieved from the burden of paying any addition that may be added to the price of motor fuels which may he occasioned by the tax. There is no indication in the language of either of the statutes in question that it was the intention of the lawmakers to relieve municipalities from the burden of paying any such enhanced price.”

The above language is applicable to the provisions of our statute.

The further contention is that, if it be conceded that appellants are liable for the tax, nevertheless the court erred in giving judgment against the county for the penalty and interest as provided in section 7 of the act quoted above. It is argued that the county was neither a distributor nor a retail dealer, and that it is apparent from the other provisions of the act that the penalty is not to be imposed on a user merely, one not engaged in commercially handling motor vehicle fuels. The contention that the appellants are neither retail dealers nor distributors cannot be sustained. Under the clear meaning of subdivision (d) of section 1, c. 39, the county falls within the designation of “retail dealer.” Section 7, which provides for the penalty, makes no exception in favor of a user in the imposition of the penalty against any distributor or retail dealer who does not pay the tax when due. It also provides that the amount of the tax with the penalty shall draw interest at the rate of 12 per cent per annum. Under the plain intent of that section, there seems to be no escape from the conclusion that the court rightly included within its judgment the penalty and interest as therein provided.

We find no error in the record. Judgment affirmed, with costs.

THURMAN, C. J., and CHERRY, J., concur.