State v. Silver Bow Refining Co.

252 P. 301, 78 Mont. 1, 1926 Mont. LEXIS 1

• Court: Montana Supreme Court
• Decided: December 22, 1926
• Docket: No. 6,046.
• Status: Published

Opinion

MR. JUSTICE MATTHEWS

delivered the opinion of the court.

The state commenced action against the Silver Bow Refining Company for the recovery of amounts alleged to be due as delinquent license taxes for the second and third quarters of the year 1925. The defendant interposed a demurrer to the complaint filed, which is both general and special. This demurrer was sustained in its entirety, and, the state refusing to amend, judgment was entered in favor of defendant. From this judgment the state has appealed specifying error upon the action of the court in sustaining the demurrer and in entering judgment.

The complaint states two causes of action which are identical, except as to the period covered; the demurrers to the two causes of action are likewise identical. It will therefore be necessary only to quote the material allegations of the first cause of action alleged, and what is hereafter said with regard thereto will apply equally to the second cause of action.

Paragraphs 1 and 2 of the first cause of action allege that the Silver Bow Refining Company is a corporation authorized to do business within this state, and engaged in the business of “manufacturing, refining, producing, and compounding gasoline and distillate, * * * and of selling and distributing the same within the state of Montana, * * * ” and was so engaged during the quarter ending June 30, 1925.

Paragraph 3 alleges that, during such quarter, and while so engaged in business, the defendant “refined, reduced, manufactured, produced, and compounded and sold gasoline and distillate in the state, or shipped, transported, or imported into and distributed or sold within this state, gasoline, and distillate exclusive of gasoline and distillate distributed by the defendant or sold by the defendant in original packages in which the same was shipped, transported, or imported, * * * amounting to a total of 132,694 gallons.”

Paragraph 4 alleges that, for the period of more than thirty days after the expiration of said quarter, the defendant failed, neglected and refused to make out and deliver to the state treasurer a duplicate statement, or any statement, showing the facts required by law to be so reported, and also failed and refused to pay the tax, or any part thereof, required by law to be paid.

Paragraph 5 alleges that, pursuant to the provisions of the law, immediately after the expiration of the said thirty-day period, the state board of equalization proceeded to inform itself, as best it could, regarding the “matters and things required to be set forth in such statement,” found and fixed the amount of gasoline and distillate sold, and fixed the tax due, and assessed a penalty of five per cent for such failure and refusal, and made a statement thereof to the state treasurer, from which statement it appears “that the total number of gallons of gasoline and distillate refined, manufactured, produced, or compounded and sold within the state * * * ” during said quarter and by the defendant was 132,694 gallons, and the tax thereon, figured at two cents per gallon, was $2,657.88, and that no part thereof has been paid.

In support of the general demurrer, defendant contends that the complaint does not state facts sufficient to constitute a cause of action, for the reason that it is the duty of the pleader to set out facts showing a valid and existing right in the plaintiff and the infringement thereof by the defendant, and that such duty is not discharged here, for the reasons (1) that the purported statute on which the state bases its claim of right to collect from the defendant is an attempt to amend an unconstitutional and invalid enactment and is therefore of no force and effect; (2) that the subject of the bill constituting such enactment is not clearly expressed in the title, and therefore the amendatory Act itself is unconstitutional; (3) that the amendatory Act denies to the defendant the equal protection of the laws, and is therefore unconstitutional; (4) that the Act is unconstitutional, in that it attempts to lay a tax for county purposes; and (5) that, even though the Act may not be unconstitutional as a whole, it is unenforceable, for the reason that its main purpose violates constitutional provisions as above pointed out. (6) As to the special demurrer, it is contended that the complaint is uncertain, ambiguous and unintel. ligible, in that it does not disclose what proportion of the products produced and sold was gasoline and what distillate, what proportion thereof was produced in the state and what imported, what proportion shipped into the state was sold in the original package, and that it cannot be ascertained therefrom what information was required by the state from the defendant or what the investigation of the state board disclosed.

Our “Gasoline Distributors’ and Dealers’ License Tax” Law was first enacted as Chapter 156, Laws of 1921, and was incorporated in the Revised Codes of 1921 as Chapter 185, Part III, of the Political Code, embracing sections 2381 to 2396. In 1923, sections 2382, 2383 and 2392 of said Chapter were amended, and sections 2393 and 2394 were repealed (Chap. 150, Laws of 1923), and in March, 1925, sections 2382, 2383 and 2392, as amended above, and the original sections 2384 and 2389 were amended. (Chap. 186, Laws of 1925.)

On April 4, 1925, this court held that the 1923 law was unconstitutional (State v. Sunburst Refining Co., 73 Mont. 68, 235 Pac. 428), and on June 26, 1926, likewise held the law of 1921 unconstitutional (State v. Sunburst Refining Co., 76 Mont. 472, 248 Pac. 186). In each instance the Act under consideration was declared discriminatory and a denial of the equal protection of the laws.

1. The principal question involved herein is: Can the legislature, by amending an unconstitutional measure, enact a valid law? Counsel for defendant contend that this cannot be done, and in support of their contention cite many authorities from other jurisdictions. Most of these decisions, however, are to the effect that a law which has been repealed cannot be amended, and furnish no assistance in determining the question before us.

We need no citation of outside authorities to sustain the declaration that a repealed law cannot be amended, as section 98, Revised Codes of 1921, declares that “an Act amending a section of an Act repealed is void,” and, in conformity with this declaration of the legislature, enactments falling within the condemnation of the above section have been declared void by this court. (In re Naegele, 70 Mont. 129, 224 Pac. 269.) The fundamental principle underlying the statute regarding repealed sections is that there is nothing to be amended; the enactment has been destroyed by the very power which created it; it is as though it had never existed, or, having once lived, its life has been ended in the most effectual manner. It cannot be amended, for, as Mr. Justice Galen said in the Naegele Case, “Life may not thus be breathed into a dead statute,” or, adopting the simile used in State v. Long, 132 La. 170, 61 South. 154, “It is not possible to graft a live tree on a dead tree.”

A statute is the expression of the public will by the lawmaking power of the state (Ware v. Hylton, 3 Dall. 199, 1 L. Ed. 568); it is the crystallization of the intention of the legislature, as to what shall be the rule, into a positive law, and the primary rule laid down for the construction of statutes is that the intention of the legislature must, if possible, be ascertained and given effect. (Carter v. Kall, 53 Mont. 162, 5 A. L. R. 1309, 162 Pac. 385; State ex rel. Goodman v. Stewart, 57 Mont. 144, 187 Pac. 641; Reeve v. City of Billings, 57 Mont. 552, 189 Pac. 768; Wibaux Imp. Co. v. Breitenfeldt, 67 Mont. 206, 215 Pac. 222.) The intention of the legislature as to the law is thus the very breath of life to the statute, and, when that body repeals a statute, it withdraws that with which it instilled life into the enactment; but is the condition of a repealed statute analogous to that of one which, in spite of the intention of the legislature, is found to be unconstitutional?

Had the legislature intended that this latter class of enactments should fall within the same category as the former, it would seem that that body would have included, in section 98 above, Acts amending unconstitutional enactments. As the legislature did not see fit to do so, it must be assumed that that body intended to exclude, from the operation of the rule of procedure laid down, this class of amendments, under the rule of interpretation that “expressio unius est exclusio alterius.” Can this intention be given effect?

Following the simile above adopted, in passing upon an amendment to an enactment lacking a proper title, a Pennsylvania jurist declared that, “if the main stock were alive and only the top were affected, this ingrafting process might give it new life,” but that, when the death was at the root of the tree, nothing could be done for it. (Teeple v. Wayne County, 23 Pa. Co. Ct. R. 361.) However, where the lawmaking body has solemnly declared its intention as to what shall be the law upon a subject clearly within its constitutional power and authority, which enactment would have become valid except for some defect in the body of the Act which could originally have been cured, the roots and the “main stock” are still alive and are grounded in fertile constitutional soil, and all that is necessary to cause the tree to flourish is scientific pruning or grafting, dependent upon whether the legislature has said too much or too little.

While there are authorities to the contrary, it is said by the text-writers that the “better rule” and “the decided weight of authority” is that an amendatory statute, which purports to amend a statute “which for any reason has been declared invalid” constitutes a valid enactment. (Lewis’ Sutherland on Statutory Construction, 2d ed., 435; 36 Cyc. 1055; 25 R. C. L., sec. 158.)

This declaration is broader than is necessary of adoption here, as we are concerned only with the amendments of a statute which has since been declared unconstitutional for the reason that it contained discriminatory provisions which might have been eliminated in the original Act, and could, without question, have been later re-enacted in its present form, had the legislature adopted that method of redeclaring its intention, and what we here declare refers only to such an amendment. Such amendments are said to be regarded as modifications of prior legislation “in the nature of a re-enactment,” and such method of supplying defects in statutes after they have been declared unconstitutional by reason of such defects, is said to be “not objectionable as to future operations” (8 Cyc. 810); and in Commonwealth v. Chesapeake & O. Ry., 118 Va. 261, 87 S. E. 622, it is said: “Upon the threshold of this proposition it may be asked what more natural method of curing the defects of an unconstitutional law can be suggested than that the legislature should amend and re-enact it so as to remove the objection?”

We therefore hold that the amendment here attacked and known as Chapter 186, Laws of 1925, as it merely corrected defects in the original unconstitutional Act of the legislature, which defects could have been eliminated originally and thereby a valid law would have been created, is a valid enactment and not open to the charge first made against it. This holding is supported by the following authorities: Lang v. Kiendl, 27 Hun (N. Y.), 66; State v. Cincinnati, 52 Ohio St. 419, 27 L. R. A. 737, 40 N. E. 508; Jacksonville etc. Ry. v. Adams, 33 Fla. 608, 24 L. R. A. 272, 15 South. 257; Walsh v. State, 142 Ind. 357, 33 L. R. A. 392, 41 N. E. 65; Allison v. Corker, 67 N. J. L. 596, 60 L. R. A. 564, and note, 52 Atl. 362; Mortland v. State, 52 N. J. L. 521, 20 Atl. 673; Hall v. Commissioners, 177 Mass. 434, 59 N. E. 68; People v. De Blaay, 137 Mich. 402, 100 N. W. 598; Iowa S. & L. Assn. v. Selby, 111 Iowa, 402, 82 N. W. 968; Steele v. Erskine, 98 Fed. 215, 39 C. C. A. 173; Commonwealth v. Chesapeake & O. Ry., above.

2. It is next contended that the subject of the enactment is not clearly expressed in the title. The title to the amendatory Act reads as follows: “An Act to amend sections 2382, 2383 and 2392 of the Revised Codes of Montana of 1921, as amended by Chapter 150 of the Laws of 1923, and to amend sections 2384 and 2389 of the Revised Codes of Montana of 1921, all relating to the. imposition of the tax on the sale of gasoline, and the collection and disposition thereof, and prescribing a penalty for neglect or refusal to furnish statements and to pay the tax.” (Laws 1925, Chap. 186.)

Section 23 of Article Y of the Constitution provides that: “No bill, except general appropriation bills, and bills for the codification and general revision of- the laws, shall be passed containing more than one subject which shall be clearly expressed in its title,” etc.

The purposes of this provision have been too often expressed by this court to require repetition here; they are clearly stated in State v. Anaconda C. M. Co., 23 Mont. 498, 59 Pac. 854; State v. McKinney, 29 Mont. 375, 1 Ann. Cas. 579, 74 Pac. 1095; State ex rel. Boone v. Tullock, 72 Mont. 482, 234 Pac. 277; State ex rel. Foot v. Burr, 73 Mont. 586, 238 Pac. 585; Hale v. Belgrade Co., 74 Mont. 308, 240 Pac. 371.

It is first contended that the title is defective for the reason that it is impossible that any subject can be germane to an unconstitutional and void enactment. This is a mere play upon words; under the conclusion reached in paragraph 1 foregoing, the objection is untenable.

Counsel argue at length that the title above did not advise the legislature and the general public as to all matters to be dealt with in the body of the amendment, “But by this eon stitntional notice it is only intended that the subject of the bill shall be fairly expressed in the title. It is not necessary— for the Constitution has not so declared — that the title shall embody the exact limitations or qualifications contained in the bill itself which are germane to the purpose of the legislature, if the general subject of the measure is clearly expressed in the title. Upon the highest authority it is held that, under constitutional provisions substantially like that referred to in Montana, where the degree of particularity necessary to be expressed in the title of a bill is not indicated by the Constitution itself, the courts ought not to ‘embarrass legislation by technical interpretations based upon mere form or phraseology. The objection should be grave, and the conflict between the statute and the Constitution palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraced more than one object, or, if but one object, that it was not sufficiently expressed by the title.’ ” (State v. Anaconda C. M. Co., above.)

Here the sole purpose of the amendment was to correct grave defects in the original statute, and all that was incorporated in the bill as amended was germane to the subject of the original enactment. As was said in Clay v. Central R. & B. Co., 84 Ga. 345, 10 S. E. 967: “The subject matter of the Act was to amend a certain section of the Code, supra, and the amendment was germane to the provisions of that section and was upon the same subject. The subject matter, therefore, was to amend the section; and while there might have been different objects and purposes in the amended Act from those contained in the original, yet the amendment was germane thereto.”

Counsel further urge that a title which merely recites that certain sections of the Codes relating to a certain subject are to be amended is not sufficient, but that the nature of the amendment must be expressed in the title. On this contention it is sufficient to say that such a title was held to be sufficient compliance with section 23, Article Y of the Constitution, in State v. Courtney, 27 Mont. 378, 71 Pac. 308. (See, also, State ex rel. Bray v. Long, 21 Mont. 26, 52 Pac. 645, and State v. Anaconda C. M. Co., above.)

So long as the provisions of an Act are germane to the general subject, it is not necessary that all thereof be mentioned in the title. (State v. McKinney, above; State ex rel. Boone v. Tullock, above.)

We therefore hold that the title to the amendment is sufficient.

3. It is next contended that the Act in question is unconstitutional in that it denies to the defendant the equal protection of the law.

The question as to what constitutes an unjust discrimination in a statute such as the one before us has been sufficiently discussed in the two cases of State v. Sunburst Refining Co. above. It was on this ground that the Acts of 1921 and 1923 were declared unconstitutional. In the first of those cases it is said that, by the Act now under consideration, “most, if not all, of the objectionable features [were] eliminated, * * * so that, under the existing law, dealers in Montana gasoline and distillate are no longer penalized solely for patronizing their home industries.” Defendant, however, contends that the law still discriminates against it as a home industry, in that it permits the export of products from the state without tax, and lays no tax upon products imported from a foreign state for use and not for sale. So far as exports are concerned, there is no discrimination, as defendant derives the same benefit from the law as do other manufacturers and dealers.

As to the contention that products may be imported into the state for consumption without the payment of a tax, and thus users are induced to deal with outside concerns when their needs are sufficiently great to warrant buying in bulk and thus withdraw their patronage from dealers within the state, the situation is one which cannot be remedied by state legislation. By sections 9 and 10, Article I, of the Constitution of tbe United States, the regulation of interstate commerce is granted exclusively to tbe Congress; Congress has long since acted on tbe subject, and “tbe states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, tbe operations of the constitutional laws enacted by Congress to carry into execution tbe powers vested in tbe general government.” (Chief Justice Marshall in McCullouch, v. Maryland, 4 Wheat. 316, 4 L. Ed. 579.)

“ ‘Commerce among tbe states’ does not stop at a state line” (Gilman v. Philadelphia, 3 Wall. 713, 18 L. Ed. 96), “and must be capable of authorizing tbe disposition of those articles which it introduces.” (Leisy v. Hardin, 135 U. S. 100, 34 L. Ed. 128, 10 Sup. Ct. Rep. 681.)

In tbe first case of State v. Sunburst Refining Co., above, tbe Act of 1923 was held unconstitutional because of an unjust discrimination which could have been eliminated under tbe decision of Sonneborn Bros. v. Cureton, 262 U. S. 506, 67 L. Ed. 1095, 43 Sup. Ct. Rep. 643, bolding that a tax on tbe sale of oil imported after it bad come to rest in tbe state would be “neither a regulation nor a burden of the interstate commerce of which this oil bad been tbe subject.” It was likewise there held that a tax might be laid on such oil “as property,” but here we are not concerned with a property tax but with an “excise or occupation tax,” and any attempt to lay a tax upon products shipped into tbe state for consumption only comes squarely within tbe federal inhibition.

Tbe legislature, therefore, merely bowed to tbe supreme power; it went as far as possible in eliminating discrimination, and, if tbe Act under consideration is not constitutional, then no such tax law can be enacted which would be constitutional. As tbe legislature has tbe undoubted power to provide for such a tax — and this is conceded — the Act before us is not open to tbe charge of unjust discrimination.

4. It is next asserted that the Act under consideration is in contravention of section 4 of Article XII of our Constitution, which reads: ‘ ‘ The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town, or municipal purposes, but it may by law invest in the corporate authorities thereof powers to assess and collect taxes for such purposes.”

Counsel by extensive argument seek to bring this case within the rules announced in State v. Pepper, 70 Mont. 596, 226 Pac. 1108, and State ex rel. Pierce v. Gowdy, 62 Mont. 119, 203 Pac. 1115. By this argument counsel seek to convince this court that by the Act the legislature intended to levy a tax for county purposes. In State v. Camp Sing, 18 Mont. 128, 56 Am. St. Rep. 551, 32 L. R. A. 635, 44 Pac. 516, the distinction between the power to “levy a tax” and to impose an excise or license tax is clearly pointed out, and it is there said, “It is by no means clear to us that the intent of section 4 was to refer to licenses,” and the license tax law under consideration was, therefore, upheld.

Again, in Hilger v. Moore, 56 Mont. 146, 182 Pac. 477, after reviewing the above decision with others, it is said: “In the Camp Sing Case the court reviewed at great length the several provisions of Article XII, explained their purpose, and reached the conclusion, in effect, that all the restrictions imposed upon the legislature by that Article are restrictions imposed with reference to property taxation. We are asked now. to overrule these decisions, but in our judgment the correctness of each of them is beyond question.”

The nature of the Act before us has been determined by this court in the first Sunburst Refining Co. Case, above, where it is said: “This statute is not in any sense a police regulation. It imposes an excise or occupation tax solely for raising revenue and was doubtless intended to be that form of license tax mentioned in and authorized by the last sentence of section 1, Article XII, of our state Constitution.” This being so, the Act cannot be said to violate section 4 of Article XII above, but comes under the “last sentence of section 1, Article XII, above referred to,” to-wit, “The legislative assembly may also impose a license tax, both upon persons and upon corporations doing business in the state,” and, under this authority and the above decisions, the Act under consideration is a valid enactment.

5. As to the grounds stated in the special demurrer, it is expressly alleged in the complaint that the total amount of gasoline and distillate on which the tax is figured is exclusive of that sold in the original package, and, as the rate of taxation on gasoline and distillate is the same and also applies equally to products either manufactured in the state or imported, it is of little importance whether or not the complaint in such a case segregates the different items going to make up the total, while a fair reading of paragraph 5 above, containing the charging part of the complaint, would seem to indicate that the entire amount of the total is for gasoline and distillate, refined, manufactured, produced and sold within the state. But whether this is so or not, in every particular in which the defendant charges that the complaint is uncertain, the facts upon which it might be made more definite and certain are peculiarly within the knowledge of the defendant — the facts which the defendant is required by law to furnish to the state, and upon failure so to do it is declared that no action shall be maintained by the party in default to review, revise or change the statement made by the board, or to recover taxes paid under protest. (Sec. 2389, Rev. Codes, as amended by Chapter 186, Laws of 1925.)

In jurisdictions where such uncertainty is reached by a ■ motion to make more definite and certain, it is held that, where the facts to be alleged in order to make a complaint moré definite and certain are peculiarly within the knowledge of the movant, such motion will not lie. (Union Gold Min. Co. v. Crawford, 29 Colo. 511, 69 Pac. 600; Barron v. Pittsburgh Plate Glass Co., 10 Ohio S. & C. P. Dec. 114.) In this state snch defect is reached by a special demurrer (Herbst Imp. Co. v. Hogan, 16 Mont. 384, 41 Pac. 135), and under that rule-such special demurrer would not lie, and, in view of the penalty attached for failure to make the required statement, no useful purpose would be served by according the defendant the information sought.

Under the circumstances, we are of the opinion that the complaint was sufficient as against the special demurrer as well as against the general demurrer.

For the reasons stated, the judgment is reversed, and the cause remanded to the district court of Silver Bow county, with direction to vacate the judgment and order sustaining defendant’s demurrer and overrule both the general and special demurrers.

Reversed and remanded.

Me. Chief Justice Callaway and Associate Justices Galen and Stark concur.