Crockett v. Salt Lake County

• Decision Date: 28 March 1928
• Docket Number: 4584
• Citation: 270 P. 142,72 Utah 337
• Court: Utah Supreme Court
• Parties: CROCKETT, Secretary of State, v. SALT LAKE COUNTY (UTAH OIL REFINING CO. et al., Interveners)

270 P. 142

72 Utah 337

CROCKETT, Secretary of State, v. SALT LAKE COUNTY (UTAH OIL REFINING CO. et al., Interveners)

No. 4584

Supreme Court of Utah

March 28, 1928

Rehearing Denied August 28, 1928.

Appeal from District Court, Third District, Salt Lake County; L. B Wight, Judge.

Action by H. E. Crockett, as Secretary of State, against Salt Lake County, in which Salt Lake City and the Utah Oil Refining Company intervened. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Wallace B. Kelly, Co. Atty., and H. A. Smith, Asst. Co. Atty., both of Salt Lake City, for appellant.

Harvey H. Cluff, Atty. Gen., for respondent.

Wm. H Folland, City Atty., of Salt Lake City, for intervener Salt Lake City.

Ball, Musser & Mitchell, of Salt Lake City, for intervener Utah Oil Refining Co.

GIDEON, J. THURMAN, C. J., and CHERRY, J., concur. HANSEN, J., STRAUP, J., dissenting.

OPINION

GIDEON, J.

By this action the secretary of state seeks to recover from Salt Lake county a tax of 2 1/2 cents per gallon on 60, 168 gallons of motor vehicle fuels, to wit, gasoline, purchased and used by the county between March 30, 1924, and October 10, 1924, together with a penalty for failure to pay such tax.

After the institution of the action Salt Lake City was permitted to intervene and join in the defense, and the Utah Oil Refining Company, a private corporation, was permitted to intervene on the side of plaintiff.

The court found, and this finding is not challenged, that the defendant Salt Lake county purchased motor vehicle fuels (gasoline) from E. P. Wilbur & Co., a corporation, f. o. b. Los Angeles, Cal., and caused the same to be shipped into the state of Utah, and there did use said gasoline within the state of Utah and on the highways and roads of the state between the dates and in the amount above stated. The court also found that all of the motor vehicle fuels so purchased were used exclusively by the county in its motor vehicles within the state, and that none of it was resold; also that the gasoline so purchased was subject to the gasoline excise tax provided for in the state law, and that said county is liable for the payment of said tax on each and every gallon of the said motor vehicle fuels to the plaintiff as secretary of state. Judgment was entered in the lower court in favor of plaintiff for the amount of the tax and the penalty provided for nonpayment.

Authority to maintain an action by the secretary of state for the nonpayment of a tax upon motor vehicle fuels is granted by chapter 39, Laws Utah 1923. Subdivision (a), section 1, of that act states that the term "motor vehicles" shall include and mean "all vehicles, engines or machines movable or immovable, which are operated or propelled by combustion of gasoline," etc. In subdivision (b), gasoline is enumerated as one of the "motor vehicle fuels." Subdivisions (c) and (d) are:

"(c) The term 'distributor' is hereby defined as any person, firm or corporation who imports or causes to be imported, motor vehicle fuels, as herein defined, for use, distribution or sale, in quantities other than the original packages in which the same was imported, and after the same reaches the state of Utah; and also any person, firm or corporation who produces, refines, manufactures or compounds such fuel in the state of Utah for use, distribution or sale in this state.

"(d) The term 'retail dealer' is hereby defined as any person, firm or corporation who purchases from a distributor within the state, any motor vehicle fuels in the original packages in which the same was imported, for use, distribution or sale within the state in quantities other than in the original packages; or who imports into the state, motor vehicle fuels in the original packages for use of such person, firm or corporation."

It is quite apparent that the defendant county falls within the class defined as "retail dealer." The gasoline purchased by the county was in original packages when so purchased, and was imported into this state for the use of the county, and was so used by it in carrying on the affairs of the county. It is provided by section 4 of said chapter 39:

"There is hereby levied and imposed, an excise tax of two and one-half cents per gallon upon the sale, or use as hereinafter provided, of all motor vehicle fuels sold, or used as hereinafter provided, in this state after the taking effect of this act, excepting, however, such motor vehicle fuels as are or have been brought into this state and sold in original packages as purely interstate commerce sales. If any motor vehicle fuels have been purchased outside of the state and brought into this state in original packages or purchased within the state in original packages from a distributor for the use of the consumer, then such tax shall be imposed upon the use of such fuels."

Section 7 of the act is:

"If any distributor or retail dealer shall fail or refuse to pay any tax when the same becomes due, the same shall be delinquent on the first day of the next succeeding month. If not paid before such date there shall be imposed a penalty of twenty-five per cent of the amount of the tax. The amount of such tax with the penalty shall bear interest at the rate of twelve per cent. per annum from the date of delinquency until the same is paid."

Some suggestion is made in the argument of appellants that the court ruled that Salt Lake County is neither a retail dealer nor a distributor as defined by the gasoline tax law, but also ruled that the county is liable for the tax with interest and penalty. It is true that the court did not find specifically that the county is a distributor or retail dealer, but the court did find that the defendant county purchased the gasoline in the state of California and caused the same to be shipped into this state and used it within the state. That finding fixed the status of the county as a retail dealer as that term is defined in subdivision (d) above quoted.

The tax, by the terms of section 6 of the act, is directed to the sale or use of motor vehicle fuels. It is provided, section 4 above quoted, that, if the fuels have been purchased outside of the state and brought within the state "for the use of the consumer, then such tax shall be imposed upon the use of such fuels." It quite clearly appears from the facts found by the court that the tax sought to be collected by this action is one imposed for the use of the fuels by the county. The power of a state to impose such a tax is not questioned by appellants.

The contention of appellants, as stated in their brief, is:

"(1) That the gasoline tax law did not impose upon Salt Lake county a tax upon gasoline used by the county in discharging its public works.

"(2) That, even though the tax law did impose upon Salt Lake county a tax for gasoline used by it, it did not impose any penalty and interest for nonpayment; said penalty and interest being imposed only upon dealers and distributors failing to pay the tax."

It is contended in the brief of appellants:

"The general rule * * * is that the state and the political subdivisions of the state and municipal corporations which are charged with the administration of law and promoting of public welfare are not burdened with a tax, unless the tax statute expressly so declares. The principal ways in which Salt Lake county uses gasoline are in the construction, maintenance, and repair of the public highways of the county, in the operation of automobiles in connection with policing the county in the prevention of crime and in inspection and providing for the relief of the poor."

It is also contended on behalf of Salt Lake City that the gasoline purchased by it was used for similar purposes within the state, and in addition in extinguishing and preventing fires and the performance of its public duties.

The right of appellants to be relieved or excused from paying the tax sought to be recovered must be found, if found at all, in an implied exception to the provisions of the statute quoted. There is no express language found in the act, either in the parts quoted or elsewhere, indicating an intention on the part of the Legislature to exempt appellants from the duty of paying the tax therein specified. The contention of appellants, or, rather, the theory upon which the argument is founded that the Legislature did not intend this tax to be applicable to cities and counties is probably as succinctly and clearly stated in Trustees of Public Schools v. City of Trenton, 30 N.J. Eq. 667, as follows:

"The immunity of the property of the state, and of its political subdivisions from taxation, does not result from a want of power in the legislature to subject such property to taxation. The state may, if it sees fit, subject its property, and the property owned by its municipal divisions, to taxation, in common with other property within its territory. But inasmuch as taxation of public property would necessarily involve other taxation for the payment of the taxes so laid, and thus the public would be taxing itself in order to raise money to pay over to itself, the inference of law is that the general language of statutes prescribing the property which shall be taxable, is not applicable to the property of the state or its municipalities. Such property is, therefore, by implication, excluded from the operation of laws imposing taxation, unless there is a clear expression of intent to include it."

Numerous other cases and authorities are cited in the brief supporting the general rule of construction stated by the New Jersey court. The cases cited by appellants, with probably one or two exceptions, relate to or affect property devoted to a public use. The courts were considering and discussing the power of...