Cont'l Oil Co. v. City of Santa Fe (two Cases).

• Decision Date: 14 October 1932
• Docket Number: Nos. 3796, 3800.,s. 3796, 3800.
• Citation: 15 P.2d 667,36 N.M. 343
• Parties: CONTINENTAL OIL CO.v.CITY OF SANTA FE (two cases).
• Court: New Mexico Supreme Court

36 N.M. 343

15 P.2d 667

CONTINENTAL OIL CO.

v.CITY OF SANTA FE (two cases).

Nos. 3796, 3800.

Supreme Court of New Mexico.

Oct. 14, 1932.

Syllabus by the Court.

“Certain towns and villages,” within act authorizing municipalities to collect license tax upon gasoline and oils, held to mean “cities, towns and villages” (Laws 1931, c. 159, § 1).

Where entire act unerringly discloses that one word was inadvertently used for another word, canons of strict construction of tax statute and of powers of municipalities held not to prevent construction effecting legislative intent.

Penal provisions of ordinance levying excise tax upon gasoline and motor fuel, though exceeding statutory authority, held not void in toto, but only as to excess (Laws 1931, c. 159, § 8; Comp. St. 1929, § 90-901).

Act enabling municipality to exact excise tax on gasoline sales held not unconstitutional as double taxation in view of existing stateexcise (Laws 1931, c. 159).

Ordinance exacting excise tax on sales of gasoline held not void or unenforceable as to one who had paid license and occupation taxes for current year (Laws 1931, c. 159).

1. By exceptional construction, “certain towns and villages” held to mean “cities, towns and villages” in Laws 1931, c. 159, § 1.

2. Where entire act unerringly discloses that “certain” was inadvertently used for “cities,” canons of strict construction of tax statutes and of powers of municipalities held not to prevent construction effecting true intent.

3. Penal provision of city ordinance prescribing fine or imprisonment or both, under charter authorizing fine or imprisonment, held not void in toto, but only as to excess.

4. Laws 1931, c. 159, enabling municipalities to exact excise on gasoline sales, held not constitutionally objectionable as double taxation, in view of existing state excise.

5. City ordinance exacting excise on gasoline sales held not void or unenforceable as to one who had paid license and occupation taxes for current year, since statute provision that such excise should be in lieu of license and occupation taxes is satisfied by crediting such payments against the accruing excise.

Appeal from District Court, Santa Fe County; M. A. Otero, Jr., Judge.

Two separate suits by the Continental Oil Company against the City of Santa Fe. From a judgment in favor of the plaintiff in the first suit, the defendant appeals; and from a judgment in favor of the defendant in the second suit, the plaintiff appeals.

Judgment in the first suit reversed, and the cause remanded with directions; and judgment in the second suit affirmed, and the cause remanded.

Where entire act unerringly discloses that one word was inadvertently used for another word, canons of strict construction of powers of municipalities held not to prevent construction effecting legislative intent.

E. R. Wright and Donovan N. Hoover, both of Santa Fe, for Continental Oil Co.

M. W. Hamilton and Charles Fahy, both of Santa Fe, for City of Santa Fe.

WATSON, J.

Chapter 159, Laws 1931, attempts to authorize a municipal excise on sales of gasoline, not to exceed one cent per gallon. Its text will be essential to an understanding of the controverted questions, and of our conclusion as to its meaning. Inserting it here, we omit section 2, which merely defines terms.

“An Act Relating to the Assessments and Collection of License Tax Upon Gasoline and Oils Sold Within Municipalities.

“Section 1. That the governing bodies of certain towns and villages, whether incorporated under general or special act, shall have the power to fix and have collected a license tax upon gasoline and motor fuel sold within the limits of such municipalities and shall have the power to fix the amount of the license tax to be paid thereon; Provided, that no such license tax shall exceed the sum of one cent per gallon upon such gasoline and motor fuel sold within such municipality. ***

“Sec. 3. That where gasoline or motor fuel is sold by a distributor of gasoline to a retail dealer in gasoline and subsequently sold by the retail dealer in gasoline to the consumer, the sale by the distributor of gasoline shall be construed as the taxable sale for purposes of this act. Provided, however, that where the sale from the distributor of gasoline to the retail dealer in gasoline takes place outside the limits of any incorporated city, town or village and the sale from the retail dealer in gasoline to the consumer takes place within the limits of any municipality, the sale by the retail dealer within the limits of such municipality shall be construed as the taxable sale for the purposes of this act and such sale by the distributor of gasoline shall not be taxed by the county in which the sale is made.

“Provided, further, that where the sale from the distributor of gasoline to the retail dealer in gasoline takes place within the limits of any municipality and the sale from the retail dealer in gasoline to the consumer takes place outside the limits of such municipality, the sale by the retail dealer outside the limits of such municipality shall be construed as the taxable sale for the purposes of this act and such sale by the distributor of gasoline shall not be taxed by the municipality within which the same is made.

“Sec. 4. That the adoption and publication of an ordinance in the manner provided by law providing for such license tax shall be sufficient to put the same into effect in any municipality.

“Sec. 5. That the legislative and governing bodies of municipalities shall have the power to provide for the payment of such license tax within their respective jurisdictions, monthly, quarterly and semi-annually, as they deem proper and shall have the power to require the filing of monthly, quarterly and semi-annual or annual reports, by distributors of gasoline and retail dealers in gasoline, showing the quantity of gasoline and motor fuel sold within such jurisdiction during such specified period. Provided, further, that upon request, the State Comptroller, or such other officer or agency as shall be authorized by law to collect the state excise tax upon the sale of gasoline, shall furnish to any such city, town or village a statement of gasoline and motor fuel sold within the jurisdiction of such city, town or village as disclosed by the records of such officer or agency authorized by law to collect the state excise tax upon the sale of gasoline.

“Sec. 6. That all such license taxes so collected within the limits of any municipality shall be paid into the municipal treasury to be used for general municipal purposes or for any special purpose in the discretion of the governing authorities of the municipality.

“Sec. 7. That where any municipality elects to assess the license tax herein provided for, the same shall be in lieu of any other license or occupation tax which said municipality may be authorized to assess and collect against such dealers in gasoline and oils.

“Sec. 8. Municipalities shall have the power to provide by ordinance for penalties for the failure to make reports and remittances as provided in this act, or who shall knowingly sell or distribute any gasoline or motor fuel without the tax thereon having been paid, as specified by the ordinance of said city. Any distributor or retail dealer who shall fail to make reports and remittances required under any resolution of the board of county commissioners, under the provisions of this act, or who shall knowingly sell or distribute any gasoline without paying the tax thereon due to such municipality shall, upon conviction, be fined not less that fifty dollars nor more than one thousand dollars for each offense.”

Undertaking to exercise this power, the city of Santa Fe passed Ordinance 800, exacting such excise on sales made on and after June 20, 1931. Under protest, plaintiff paid the amount accrued for the remainder of June, and, upon its suit to recover the payment, had judgment. The city's appeal is here docketed as No. 3796.

Ordinance 800 was repealed by Ordinance 875, effective January 7, 1932. Under protest, plaintiff paid the sum accruing under this ordinance up to February 1. In its action to recover this payment, it failed. Its appeal is here docketed as No. 3800.

The two causes have been submitted together. No. 3796 presents one question not common to both. It will be reserved until the last. Continental Oil Company, being plaintiff in both cases, will be so referred to.

[1][2] Its first point is that the enabling statute, chapter 159, supra, does not extend the power to cities, and consequently not to the city of Santa Fe. The contention is based on the language of section 1: “That the governing bodies of certain towns and villages *** shall have the power. ***”

If section 1 stood alone, it would be impossible to conclude that cities were affected by it. But it cannot stand alone. Even towns and villages could not rely upon it. The power is granted, not to all, but to “certain,” towns and villages. What towns and villages are affected must be determined from the further provisions of the act. Examining them we find, strangely, nothing to define “certain.” Having implied at the outset that some towns and villages only are included, the act proceeds exactly as if all were embraced.

Hence the statute is ambiguous on its face. It calls for construction. If “certain” remains, it is destructive of the whole act. No municipality can be identified as a repository of the power. Unless the act is to be entirely ineffectual, there are but two alternatives: “Certain” must be discarded as superfluous and meaningless, or it must be determined from the other provisions what special meaning it bears, or what different word was intended.

It is very significant that if the word “cities” be substituted for “certain,” complete harmony will result. The propriety and necessity of this substitution is strongly suggested by the fact that the word “cities” obtrudes into the statute in manner...