Burlington Northern R. Co. v. Strackbein, 15247

• Decision Date: 15 September 1986
• Docket Number: No. 15247,15247
• Citation: 398 N.W.2d 144
• Parties: BURLINGTON NORTHERN RAILROAD COMPANY, a Corporation, Plaintiff and Appellant, v. Elma STRACKBEIN, As Treasurer of Fall River County, South Dakota, Defendant and Appellee, and Mark V. Meierhenry, Attorney General, Intervenor and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 144

398 N.W.2d 144

BURLINGTON NORTHERN RAILROAD COMPANY, a Corporation Plaintiff and Appellant, v. Elma STRACKBEIN, As Treasurer of Fall River County, South Dakota, Defendant and Appellee and Mark V. Meierhenry, Attorney General, Intervenor and Appellee.

No. 15247.

Supreme Court of South Dakota.

Considered on Briefs Sept. 15, 1986.

Decided Dec. 23, 1986.

F.M. Smith of Woods, Fuller, Shultz & Smith, Sioux Falls, for plaintiff and appellant.

Kenneth R. Dewell of Wilson and Dewell, Hot Springs, for defendant and appellee.

John Dewell, Asst. Atty. Gen., for intervenor and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

MORGAN, Justice.

Burlington Northern Railroad Company (Railroad) brought this action against Elma Strackbein (Strackbein) in her official capacity as treasurer of Fall River County, South Dakota, to recover certain taxes paid under protest. Railroad claims that in spite of a 1981 amendment to SDCL 10-28-21.1 it is entitled to tax credits for rehabilitation work done on their tracks in Fall River County. Railroad claims SDCL 10-28-21.1 as amended is unconstitutional, and due to this claim the Attorney General elected to intervene in the suit. Each of the parties moved for judgment on the pleadings. The trial court denied Railroad's motion, but granted the motion of Strackbein and Attorney General. It is from this adverse determination that Railroad appeals. We affirm.

A motion for judgment on the pleadings is provided for by SDCL 15-6-12(c) which "like a motion to dismiss, now provides an expeditious remedy to test the legal sufficiency, substance, and form of pleadings. It is a proper remedy only when no issue of fact is raised. It deals only with questions of law arising from the pleadings." Hauck v. Bull, 79 S.D. 242, 244, 110 N.W.2d 506, 507 (1961). Appellant does not contend that the motion was inappropriate, but instead claims that the trial court reached the wrong result.

In 1974, the South Dakota Legislature, in an apparent effort to encourage railroads to upgrade their lines, provided a tax credit for certain rehabilitation work on railroad tracks. See 1974 S.D.Sess. Laws ch. 106. The act provided for tax credits for one-third of the amount spent and certified, placed a ceiling limiting eligibility for the credit to lines carrying not more than one million net ton miles per mile annually, and had a sunset provision terminating the credits on July 1, 1979. The 1979 Legislature substantially reenacted the credit provision, but changed the accumulations of credits and, most significantly, deleted the one million net ton mile ceiling.

The 1981 Legislature, in amending the act, again attempted to clear up some of the language regarding the accumulations, delayed the credits for one year, and reimposed an eligibility ceiling excluding lines carrying more than ten million net ton miles per mile annually. The bill was amended on the floor of the House by raising the proposed ceiling from six million net ton miles to ten million net ton miles and by adding this sentence: "The provisions of this section do not affect credits certified prior to the passage and approval of this act." The statute was signed by the Governor on January 30, 1981, which constitutes the approval as referred to in the statute.

During the period between 1979 and 1981, Railroad made improvements to their rail lines in Fall River County. This Fall River County line carried more than ten million net ton miles per mile annually during that period. Railroad certified these track improvements after January 30, 1981, but prior to July 1, 1981. As a result, Railroad was assessed taxes by Fall River County which Railroad paid under protest.

Railroad raises two issues on appeal. The first centers on the sentence appended on the floor of the House referring to credits certified prior to "the passage and approval of this act," now codified to read "January 30, 1981." Railroad claims that this January 30, 1981, date should actually be read to effectively say July 1, 1981. Railroad claims that the language requiring certification prior to the "passage and approval" of the statute is a "legislative error in draftsmanship." If no error exists, Railroad alternatively argues that application of the statute as written "would result in the retroactive application of the law in contravention of the United States and South Dakota Constitutions."

Railroad's initial argument, simply put, is that the legislature actually meant to set the deadline on certification as of the "effective date" of the act rather than the date of its "passage and approval." The effective date was July 1, 1981.

At the outset, we note that when we are called on to interpret a statute granting an exemption, a deduction, or a credit that the statute is strictly construed against the taxpayer. Bunge Corp. v. Commissioner of Revenue, 305 N.W.2d 779 (Minn.1981); Grant Farmers Mut. v. State by Conrad, 347 N.W.2d 324 (N.D.1984); Keyes v. Chambers, 209 Or. 640, 307 P.2d 498 (1957); Fall River Canning Co. v. Wisconsin Dept. of Taxation, 3 Wis.2d 632, 89 N.W.2d 203 (1958). "We have repeatedly stated that when the terms of a statute are clear, certain and unambiguous in their meaning, it is the function of the court to give them effect and not to amend the statute to avoid or produce a particular result." Matter of Sales Tax Refund Applications, 298 N.W.2d 799, 802 (S.D.1980). The last sentence of SDCL 10-28-21.1 is patently clear, certain, and unambiguous in its meaning. Railroad contends that a latent ambiguity is present because the language in the last sentence of the statute conflicts with Article III, Sec. 22 of the South Dakota Constitution and SDCL 2-14-21. Railroad claims this ambiguity results in an absurd or unreasonable conclusion. See Matter of Sales Tax Refund Applications, supra.

Article III, Sec. 22 of the South Dakota Constitution states in pertinent part: "No act shall take effect until ninety days after the adjournment of the session at which it passed...." We see no conflict between our Constitution and SDCL 10-28-21.1 since the statute did not take effect until July 1, 1981. The statute merely says that as of July 1, 1981, credits will be given for expenditures certified prior to January 30, 1981. We dealt with a similar question in Homestake Min. Co. v. Johnson, 374 N.W.2d 357 (S.D.1985). In that case, Homestake Mining Company was required as of January 1, 1981, to begin calculations to determine tax liability. This was so even though the statute did not become effective until July 1, 1981. "Merely because the statute has some retroactive application, however, does not mean the statute 'takes effect before that date.' " Id. at 363.

Railroad also claims that SDCL 10-28-21.1 conflicts with SDCL 2-14-21, which states that no law will be retroactive unless that intention plainly appears. See Homestake Min. Co., 374 N.W.2d at 363. We hold that the legislature plainly indicated the retroactive application by the specific and unambiguous requirement that certification take place prior to the passage and approval of the statute. Railroad claims that there is no reason for giving it such a short period to certify past expenditures. We disagree. Requiring certification by the time of approval of the statute may assist counties in their budgeting processes and could also lead to fewer claims being certified.

Railroad likens this case to that of Elfring v. Paterson, 66 S.D. 458, 285 N.W. 443 (1939), wherein a clerical error rendered the statute incapable of a reasonable construction. We find no indication of such an error in this case. Five legislative sessions have passed since the 1981 Session and Railroad has had ample opportunity to secure legislative amendment to what it claims is an ambiguous provision. No such change has been made. We hold that SDCL 10-28-21.1 is consistent with SDCL 2-14-21 and art. III, Sec. 22 of the South Dakota Constitution.

Railroad alternatively argues that the retroactive application of the statute amounts to "an unconstitutional taking of property without just compensation in violation of the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution and art. V, Sec. 13 of the South Dakota Constitution." In its argument, Railroad characterizes SDCL 10-28-21.1 as a "retroactive tax" and cites us to authorities dealing with constitutionality of retroactive taxation. In truth, SDCL 10-28-21 directs that all railroad property shall be taxable at the same rate and for the same purposes as individuals within the various and sundry taxing districts in which the railroad's property is assessed. SDCL 10-28-21.1 simply provides for allowance of tax credits in certain cases and, to the extent such credits are properly certified, relieves the railroad from some tax liability. A tax credit is a rebate and not a tax. See Butcher v. Department of Treasury, 425 Mich. 262, 389 N.W.2d 412 (1986). ^*

Furthermore, to establish a "taking" there must first be established a "property right." "A provision allowing a credit against a state tax is, in effect, an exemption from liability for a tax already determined and admittedly valid.... [D]eductions or exemptions as a legislature may allow ... are privileges accorded as a matter of legislative grace and not as a matter of taxpayer right." Keyes v. Chambers, 209 Or. 640, 645, 307 P.2d 498, 501 (1957). See State v. L. & A. Contracting Co., 241 Miss. 783, 133 So.2d 546 (1961); Aberfoyle Manufacturing Co. v. Clayton, 265 N.C. 165, 143 S.E.2d 113 (1965); Southern Weaving Co. v. Query, 206 S.C. 307, 34 S.E.2d 51 (1945); Christopher v. James, 122 W.Va. 665, 12 S.E.2d 813 (1940); 85 C.J.S. Taxation Sec. 1099 (1954). In view of the foregoing authorities we hold that since the statutory language clearly provides that the credits will be given only after certification, Railroad had no property right to the tax credit.

Judgment on the pleadings...