Comanche Light & Power Co. v. Nix
| Decision Date | 14 March 1916 |
| Docket Number | 4333. |
| Citation | 156 P. 293,53 Okla. 220,1916 OK 330 |
| Parties | COMANCHE LIGHT & POWER CO. v. NIX, SHERIFF. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
That portion of section 2, c. 44, Sess. Laws 1910, imposing a gross revenue tax on corporations, which provides that public service corporations operating partly within and partly without the state shall pay a tax equal to such proportion of the per centum of its gross receipts, as thereinafter provided, as the portion of its business done within the state bears to the whole of its business, having been declared unconstitutional as an attempted regulation of commerce among the states (Meyer, Auditor, v. Wells Fargo & Co., 223 U.S. 298, 32 S.Ct. 218, 56 L.Ed. 445) the remaining part of the statute, levying a tax on such corporations operating wholly within the state, cannot be sustained, being in contravention of the legislative purpose and intent, and therefore the entire act must be held invalid.
Chapter 44, Sess. Laws 1910, imposing a gross revenue tax, provides a comprehensive scheme of taxation, the parts of which, as respects those public service corporations operating wholly within the state, and those operating partly within and partly without the state, must be construed according to the obvious legislative intent as a whole. Such construction precludes the belief that the Legislature would have enacted the statute independent of the part held unconstitutional.
The question as to whether portions of a statute which are constitutional shall be upheld while other divisible portions are eliminated as unconstitutional is primarily one of intention. If the objectionable parts of a statute are severable from the rest in such a way that the Legislature would be presumed to have enacted the valid portion without the invalid, the failure of the latter will not necessarily render the entire statute invalid, but the statute may be enforced as to those portions of it which are constitutional. If, however, the constitutional and the unconstitutional portions are so dependent on each other as to warrant the belief that the Legislature intended them to take effect in their entirety, it follows that, if the whole cannot be carried into effect, it will be presumed that the Legislature would not have passed the residue independently, and accordingly the entire statute is invalid.
Error from District Court, Comanche County; J. T. Johnson, Judge.
Injunction by the Comanche Light & Power Company, a corporation, against Walter E. Nix, as Sheriff of Comanche County. Judgment for defendant, and plaintiff brings error. Reversed and remanded with directions.
C. M Myers and W. C. Stevens, both of Lawton, and S. P. Render Stuart & Cruce and Burwell, Crockett & Johnson, all of Oklahoma City, for plaintiff in error.
S. P. Freeling, Atty. Gen., and John B. Harrison, Asst. Atty. Gen., for defendant in error.
May 26, 1908, there was enacted by the Legislature a statute providing for the levy and collection of a gross revenue tax from public service corporations in the state, and from persons, firms, corporations, or associations engaged in the mining or production of coal, asphalt, or ores bearing lead, zinc, jack, gold, silver, or copper, or of petroleum or other mineral oil, or of natural gas. Sess. Laws 1907-08, c. 71, art. 2, pp. 640-645. Section 6 of article 2 of said statute was amended by an act approved March 27, 1909 (Sess. Laws 1909, c. 38, art. 2, pp. 624-626), section 2 of which amended act made provision that the taxes collected from gross revenues should be paid into the state treasury and credited to the general revenue fund of the state for the payment of the expenses of the state government. In 1910 the Legislature enacted a new statute, approved March 10th of said year, providing for the levy and collection of a gross revenue tax from the public service corporations of the state, and from persons, firms, corporations, or associations engaged in the mining or production of coal and other minerals, or of petroleum or other mineral oil, or of natural gas. Sess. Laws 1910, c. 44, pp. 65-70.
In Meyer, Auditor, v. Wells Fargo & Co., 223 U.S. 298, 32 S.Ct. 218, 56 L.Ed. 445, the latter statute was attacked by the express company as unconstitutional on the ground that it was an attempted regulation by the state of commerce among the states. The contention was sustained; the court holding the act unconstitutional in that it was an attempt to tax the gross receipts of corporations engaged in interstate commerce, and who also received large sums as income from investments in bonds and lands, all outside of the state. Notwithstanding the opinion, it is claimed by the Attorney General that the statute, as it affects corporations operating wholly within the state, is separable from the portion stricken as unconstitutional, and therefore the former may stand, unaffected by the invalidity of the condemned part. In this connection it may be noted that plaintiff is, and was during the time in question, a domestic corporation engaged in the furnishing of electric light and power in the city of Lawton and adjacent territory within the state, and hence was not engaged in commerce among the states.
The sole question before us, as submitted both in the oral arguments and briefs of counsel, and as already indicated, is: May the statute providing for the levy and collection of a gross revenue tax be enforced as against public service corporations operating wholly within the state, notwithstanding the decision of the Supreme Court striking down a portion of the statute as unconstitutional? It is fundamental that one part of a statute cannot be declared void and leave any other part in force, unless the statute is so composite, consisting of such separable parts, that, when the void part is eliminated, another living, tangible part remains, capable by its own terms of being carried into effect, consistently with the intent of the Legislature which enacted it in connection with the void part. Lewis' Sutherland, Statutory Construction, § 297; In re Commissioners of Counties Comprising Seventh Judicial District, 22 Okl. 435, 98 P. 557; Pioneer Telephone & Telegraph Co. v. State, 40 Okl. 417, 138 P. 1033; In re Gross Production Tax of Wolverine Oil Co., 154 P. 362. If the court can see and say that the act, in the form in which it is left with the obnoxious portions excised, is still such an act as it may be presumed that the Legislature would have passed had it known that certain provisions were void, the remainder, under well-settled rules of construction, may stand. Dwyer v. Parker, Auditor, 115 Cal. 544, 47 P. 372; Lawton v. Steele, 119 N.Y. 226, 23 N.E. 878, 7 L. R. A. 134, 16 Am. St. Rep. 813, affirmed in 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361, 37 N.E. 247, 24 L. R. A. 141, 41 Am. St. Rep. 278; Rothermel v. Meyerle, 136 Pa. 250, 20 A. 583, 9 L. R. A. 366; Branch v. Lewerenz, 75 Conn. 319, 53 A. 658; English v. State, 31 Fla. 340, 12 So. 689; Newman v. People, 23 Colo. 300, 47 P. 278.
On the other hand, if it is obvious that the Legislature did not intend that any part should have effect unless the whole, including the part wholly void, should operate, then holding a part void invalidates the entire statute. As said in Johnson v. State, 59 N. J. Law, 271, 273, 35 A. 787, affirmed 59 N. J. Law, 535, 37 A. 949, 39 A. 646, 38 L. R. A. 373:
"If all the provisions of an act are so interwoven as to be incapable of distinct separation, or are of such a character that it cannot be said that the Legislature intended that the valid parts shall be enforced if the other parts fail, the entire law will be held to be invalid."
To the same effect is the case of Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 565, 22 S.Ct. 431, 441 (46 L.Ed. 679), where it is said:
"But, if an obnoxious section is of such import that the other sections without it would cause results not contemplated or desired by the Legislature, then the entire statute must be held inoperative."
As said by Mr. Chief Justice Fuller, in Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 15 S.Ct. 912, 39 L.Ed. 1108:
"It is elementary that the same statute may be in part constitutional and in part unconstitutional, and, if the parts are wholly independent of each other, that which is constitutional may stand, while that which is unconstitutional will be rejected."
Quoting with approval from the rule announced by Chief Justice Shaw in Warren v. Charlestown, 2 Gray (Mass.) 84, the court proceeds:
To continue reading
Request your trial