City of Rawlins v. Frontier Refining Co.

• Decision Date: 20 November 1964
• Docket Number: Nos. 3257,3259,3258,V-I,s. 3257
• Citation: 396 P.2d 740
• Parties: CITY OF RAWLINS, Wyoming, a municipal corporation, Appellant (Defendant below), v. The FRONTIER REFINING COMPANY, a Wyoming corporation, Appellee (Plaintiff below) (two cases). CITY OF RAWLINS, Wyoming, Mayor, and D. W. Marquith, Chief of Police, Appellants (Defendants below), v.OIL COMPANY, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 740

396 P.2d 740

CITY OF RAWLINS, Wyoming, a municipal corporation, Appellant (Defendant below), v. The FRONTIER REFINING COMPANY, a Wyoming corporation, Appellee (Plaintiff below) (two cases).

CITY OF RAWLINS, Wyoming, Mayor, and D. W. Marquith, Chief of Police, Appellants (Defendants below), v. V-I OIL COMPANY, Appellee (Plaintiff below).

Nos. 3257, 3259, 3258.

Supreme Court of Wyoming.

Nov. 20, 1964.

Robert Stanley Lowe, Rawlins, Joseph F. Maier, Torrington, for appellants.

Loomis, Lazear, Wilson & Pickett, Frederick G. Loomis, Richard F. Pickett, Cheyenne, for appellee Frontier Refining Co.

Crofts, Mockler & Meier, Frank C. Mockler, Lander, for appellee V-1 Oil Co.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Chief Justice PARKER delivered the opinion of the court.

The Frontier Refining Company brought two actions against the City of Rawlins, seeking to recover diesel fuel taxes previously levied under the authority of Ordinance 199 and paid under protest. This plaintiff also asked for an injunction against further enforcement of the ordinance. V-1 Oil Company applied for an injunction against the city to prevent the enforcement of Ordinance 199, providing for a license tax against the wholesalers of diesel fuel and Ordinance 171, providing for a like tax upon gasoline wholesalers. Frontier contended that Ordinance 199 was unconstitutional; V-1 charged that the city was without statutory authority to levy these taxes, that they were not uniform, and were confiscatory. The three cases were consolidated for trial, the parties consenting, and the matter heard upon an agreed statement of facts and stipulations. The court made a general finding for the plaintiffs and against the defendants, decreed recovery of the taxes previously paid by Frontier, and made permanent a temporary injunction previously entered in favor of V-1.

Although other questions are urged in the appeal, the fundamental issue here is the validity of the ordinances under c. 100, S.L. of Wyoming, 1961, a codification and general revision of laws relating to powers of cities and towns, which chapter omitted from the title the words, 'For the purpose of raising revenue,' previously contained in § 15-7, W.S.1957, and the phrase, 'to raise revenue,' previously contained in § 15-100, W.S.1957. Section 15-7 was passed as c. 150, S.L. of Wyoming, 1909, the title of which read, 'An Act to create revenue for municipal purposes by levying and collecting a license tax on any business * * *' and was not changed until c. 100, S.L. of Wyoming, 1961, the title of which read, 'An Act providing for the codification and general revision of laws relating to powers of Cities and Towns as set forth in * * *; and to repeal Sections 15-5 to 15-7 inclusive; * * * 15-86 to 15-126 inclusive; * * * Wyoming Statutes, 1957, relating to the powers of Cities and Towns.'

Appellees urge the significance of the omission from subsection (12), § 2, c. 100 (§ 15-4.2(12), W.S.1957 (1963 Cumulative Supp.)), of the words 'For the purpose of raising revenue,' saying that this subsection replaced §§ 15-7 and 15-100. Such argument must be considered in the light of the present wording of subsection (12) and the fact that other portions of the new law also relate to the matter in issue.

The relevant portions of the Act read:

'Section 2 [Powers]. The cities and towns shall have the following powers which may be exercised by their governing bodies:

* * *

* * *

'(10) To * * * open, * * * improve * * * and care for any street, avenue, alley or land * * *.

* * *

* * *

'(12) To license, tax and regulate any business whatsoever conducted, carried on or trafficked in within the limits of such city or town; provided, however, that all license taxes shall be uniform in respect to the class of business upon which imposed.'

Although the trial court at the instance of V-1 and with the consent of the parties removed from the judgment by a nunc pro tunc order the statement that the court 'considered the issues made upon the question of constitutionality of the ordinances of defendant,' the constitutional questions were determined by the general findings of the court and are here presented. Wallis v. Nauman, 61 Wyo. 231, 157 P.2d 285.

Defendants in the appeals insist that Ordinance 199 complies with Art. 13, § 3, Wyo.Const., ¹ insofar as the phrase 'in pursuance of law' is concerned, and that the noted omission in § 15-4.2(12) is not fatal. They submit first that according to definition in Black's Law Dictionary, p. 1703 (3 ed.) 'tax' means 'To impose a tax; to enact or declare that a pecuniary contribution shall be made by the persons liable, for the support of government.' Defendants refer also to the same authority at p. 1707 and pp. 1280-1281, which defines, respectively, 'taxation' and 'occupation tax.' Cases cited by defendants include State v. Board of Com'rs of Laramie County, 8 Wyo. 104, 55 P. 451, where the court said there was no significant change when the legislature in an amendment and reenactment of a taxation statute changed the phrase '[F]or county revenue, for ordinary county expenses, not more than * * * mills on the dollar' to 'For County revenue for all purposes there shall be levied annually a tax, but * * * shall not exceed * * * mills on the dollar.' Another discussed is In re Metcalf's Estate, 41 Wyo. 36, 282 P. 27, 32, where the court noted that any presumption of a change of intention from a change of language is of little weight when there is a revision of a whole law rather than an amendment and quoted Lewis' Sutherland, Statutory Consruction, p. 931 (2 ed.), "It is presumed, in the construction of general words or dubious provisions, that there is no intention to depart from any established policy of the law." Attention is also directed to City of Cheyenne v. O'Connell, 6 Wyo. 491, 46 P. 1088, interpreting the charter of the City of Cheyenne, which empowered the city council to 'levy and collect taxes' on various occupations, and holding that the charter provision authorized the city to levy an occupation tax. Reliance is placed on the case of Abraham v. City of Roseburg, 55 Or. 359, 105 P. 401, where in interpreting a statute authorizing the city to 'license and regulate' it was held that these words carried with them the power to tax for revenue purposes. In this connection, we call attention to the circumstance that the decision is based principally upon the statute's provision allowing the licensing of such employments as 'the public good may require to be licensed,' which would seem to weaken the holding as regards the point here urged. Defendants cite McCarthy v. City of Tucson, 26 Ariz. 311, 225 P. 329, wherein the court interpreted a charter empowering the council 'to license and regulate * * * [businesses and] to fix the rates of license tax' as including the right to impose a license tax for revenue. It is of some significance that the Arizona court there said, 225 P. at 331:

'* * * It may be doubtful whether the words 'to license and regulate' include the power to impose a license tax for revenue only. In fact, the weight of authority seems to be that they do not. But this is not true where, in addition to them, the word 'tax' occurs, for 'a license fee may be imposed either for regulation or for revenue, where the city has the power to license, regulate and tax' * * *.'

Defendants rely upon City of Glendale v. Betty, 45 Ariz. 327, 43 P.2d 206, emphasizing the court's upholding a Glendale ordinance which imposed a tax for revenue on certain businesses under the authority of a statute permitting cities of that class 'to license, tax and regulate * * * [businesses],' substantially the same as the statute here under discussion.

Plaintiff V-1 in it principal challenge centers upon the view that the 1961 legislature had a purpose in omitting the crucial words 'For the purpose of raising revenue' and says its intent was definite to remove the power of the cities to license, tax, and regulate business for revenue purposes. In pursuing this thesis, counsel discusses the legislative history of c. 100 as it is reflected in the record, and seeks additionally to fortify such position by the fact that an effort in the next session of the legislature to restore the words 'For the purpose of raising revenue' failed of passage. That plaintiff submits no authority tending to uphold its assumption that the intention of a subsequent legislative body can have any effect upon the intent of a previous legislature. There are presented numerous cases holding that a succeeding legislature by a refusal to amend has indicated a clear intent to continue an act as it previously existed and that courts should take this into consideration in construing any provision of an act which is doubtful, ² but such general principle is not controverted by opposing counsel, and it does not affect the basic question as to the effect of the words 'To license, tax and regulate' (§ 15-4.2(12)) as fulfilling the mentioned requirements of the constitution.

Plaintiff Frontier does not address itself in quite the same fashion to the invalidity of the ordinance. However, its main thesis is the same, that in order for the city's levy of an occupation tax to have been legal it must have been specifically authorized by a State statute and that c. 100 did not accomplish this. Frontier calls attention to Kelsey v. Taft, 72 Wyo. 210, 263 P.2d 135, 136, wherein it was said, 'It is elementary that taxation is a legislative function and that taxes may be impressed, levied, assessed and collected only under the statutory authority and in the manner provided by law.' It refers to Western Auto Transports, Inc., v. City of Cheyenne, 57 Wyo. 351, 118 P.2d 761, 120 P.2d 590, 596, where the court quotes from 3 McQuillin, Municipal Corporations, p. 451 (2 ed.), "the power to tax and license as a means of raising revenue is not inherent in municipal corporations, it follows...