George E. Breece Lumber Co. v. Mirabal, 3468.

• Decision Date: 31 March 1930
• Docket Number: No. 3468.,3468.
• Citation: 287 P. 699,34 N.M. 643
• Parties: GEORGE E. BREECE LUMBER CO. et al.v.MIRABAL, State Comptroller.
• Court: New Mexico Supreme Court

34 N.M. 643

287 P. 699

GEORGE E. BREECE LUMBER CO. et al.

v.MIRABAL, State Comptroller.

No. 3468.

Supreme Court of New Mexico.

March 31, 1930.

Syllabus by the Court.

Section 1, of chapter 14, Laws 1927, as amended by section 1, of chapter 29, Laws 1929, provides for an excise tax upon the use of all gasoline in the state for any purpose, and is not a property tax.

Statute taxing use of all gasoline for any purpose held not special privilege tax for using highways with automobiles; it is immaterial to taxpayer to what purposes proceeds of excise tax are devoted (Laws 1927, c. 14, § 1, as amended by Laws 1929, c. 29, § 1).

Syllabus by the Court.

This tax is not a special privilege or use tax laid upon persons using the public roads of the state and, being an excise tax, it is immaterial to the taxpayer to what purposes the proceeds are devoted.

Appeal from District Court, Santa Fé County; Holloman, Judge.

Suit by the George E. Breece Lumber Company and others against Gilberto Mirabal, State Comptroller. From an adverse decree, defendant appeals.

Reversed and remanded, with directions.

It is immaterial to taxpayer to what purposes proceeds of excise tax are devoted.

M. A. Otero, Jr., Atty. Gen., and J. A. Miller, Asst. Atty. Gen., for appellant.

Downer & Keleher, of Albuquerque, for appellee McGaffey Co.C. M. Botts, of Albuquerque, for appellee George E. Breece Co.Carl H. Gilbert and E. R. Wright, both of Santa Fé, and Rodey & Dailey, of Albuquerque, amici curiæ.

PARKER, J.

This is an appeal from a decree of the district court of Santa Fé county enjoining the state comptroller from collecting a tax from appellees for the use by them within this state of gasoline purchased in interstate commerce, upon which no sales tax has been paid. The sole issue presented to the court was whether or not section 1, of chapter 14, session laws of 1927, as amended by section 1, of chapter 29, session laws of 1929, could constitutionally be enforced, with respect to the use of gasoline for purposes other than the transportation of motor vehicles upon the public highways. The court found that the statutes involved were unconstitutional and void, and entered a decree perpetually enjoining the state comptroller from collecting the said tax. The state comptroller has appealed from said judgment.

The facts were stipulated as follows:

It is hereby stipulated between the attorneys for plaintiffs and the Attorney General of the state of New Mexico, representing the defendant, that, for the purposes of this trial, the following may be taken and considered by the court as true:

1. That the court, sitting as a court of equity, has jurisdiction of the parties and of the subject-matter hereof.

2. That each of the plaintiffs is a corporation, duly authorized to do and doing business in the state of New Mexico, and that their business is that of cutting and logging timber in McKinley, Valencia, and Otero counties, in New Mexico, and of the manufacture of the same into lumber.

3. That the defendant is the duly appointed and acting comptroller of the state of New Mexico, and is sued as such.

4. That the plaintiffs in their logging operations use trucks, tractors, loading machinery and other machinery, all operated by internal combustion engines using gasoline as fuel, and that experience has demonstrated that the use of such machinery and of such fuel is essential to the economic operation of their said business.

5. That the plaintiffs have, and each of them has, on hand in their storage tanks, located at their respective logging camps in New Mexico, large quantities of gasoline, which has been purchased in other states than New Mexico and shipped to them in interstate commerce by being loaded in tank cars on the line of a common carrier by rail in such other states, and transported in said tank cars over the line of such common carrier into the state of New Mexico, and delivered to the respective plaintiffs at the points on the line of such common carriers at which plaintiffs' respective private railroads connect with the lines of said common carriers, at which points such tank cars of gasoline are transferred from the lines of such common carriers onto the respective private railroads of the plaintiffs; and by and over said private railroads said tank cars of gasoline are transported to the respective logging camps of the plaintiffs, located on their respective lands in New Mexico, where said gasoline is emptied out of said tank cars and into the storage tanks of the plaintiffs, and that all of the gasoline so in plaintiffs' possession has been so purchased in interstate commerce and for the use aforesaid.

6. That since the 7th day of March, 1929, each of the plaintiffs has used for the purposes aforesaid, and not otherwise, large quantities of gasoline, all of which was purchased out of the state of New Mexico and shipped to them in interstate commerce as aforesaid, and that they expect to continue, from time to time, as their necessity and convenience shall require, to purchase other gasoline in large quantities outside of the state of New Mexico and in interstate commerce, and to use the same for the purposes aforesaid and in the manner hereinafter stated.

7. That all of the trucks, tractors, loading machinery and other machinery aforesaid are used and operated on the respective lands of the plaintiffs and solely in their logging operations, and that none of them is used or operated upon, or in connection with, any public highway in the state of New Mexico, and that none of the gasoline aforesaid has been used or is to be used upon, or in connection with, any such public highways, and that said public highways have not been and will not be used in the transportation of said gasoline to the place of use aforesaid, or in the transportation of any of the plaintiffs' logs or timber.

8. That the defendant has demanded of the plaintiffs that they pay to him a tax of five cents for each gallon of gasoline used by them as aforesaid, basing his demands upon chapter 14, of the session laws of 1927, as amended by House Bill No. 202 of the Ninth Legislature of the state of New Mexico, entitled “An Act to Amend Section 1 of Chapter 14, Laws of 1927, providing for an excise Tax upon the use of Gasoline;” that plaintiffs have, and each of them has, refused to pay said tax, or any part thereof, and that the defendant has threatened and is threatening to subject plaintiffs to suits for the collection of said tax, to assess a penalty for the nonpayment thereof, and to prosecute plaintiffs and to have them fined for their refusal aforesaid.

9. That, in addition to the foregoing in the consideration and determination of the questions of law involved herein, the court may consider any and all other facts of which it may properly take judicial knowledge, and nothing herein contained shall prevent any party hereto from submitting competent evidence of other or additional pertinent or material facts not contradictory of the facts herein stipulated.

10. That by nothing herein contained does any party hereto agree that all facts herein stipulated are relevant or material, and the right to object to any fact so stipulated on the ground of irrelevancy or immateriality is hereby reserved.

11. That on the facts the court shall render such judgment and grant such relief as shall be just and proper under the Constitution and laws of the United States and the Constitution and laws of the state of New Mexico.

The statutes under which the collection of the tax was sought by the state comptroller are section 1, of chapter 14, Laws 1927, which was as follows:

“Section 1. There is hereby levied and imposed an excise...