Gregg Dyeing Co. v. Query

• Decision Date: 13 April 1931
• Docket Number: 13116.
• Citation: 164 S.E. 588,166 S.C. 117
• Parties: GREGG DYEING CO. v. QUERY et al., Tax Commission.
• Court: South Carolina Supreme Court

164 S.E. 588

166 S.C. 117

GREGG DYEING CO. v. QUERY et al., Tax Commission.

No. 13116.

Supreme Court of South Carolina

April 13, 1931

Original action by the Gregg Dyeing Company against W. G. Query and others, as members of the South Carolina Tax Commission.

Temporary injunction dissolved, and petition dismissed.

Affirmed 286 U.S. --, 52 S.Ct. 631, 76 L.Ed. --.

Hendersons & Salley, Aiken, Bomar & Osborne, and Perrin & Tinsley, all of Spartanburg, and Haynsworth & Haynsworth, of Greenville for petitioner.

J Fraser Lyon, of Columbia, and John M. Daniel, Atty. Gen., for respondents.

COSGROVE A. A. J.

In the original jurisdiction of the court, petitioner has brought this action seeking to enjoin respondents as members of the South Carolina tax commission from the enforcement as to it, and others in like plight, of the provisions of a statute which it denominates as the "Gasoline Tax Act of 1930."

The act in question, approved April 4, 1930 (36 St. at Large, p. 1390), is entitled: "An Act to Impose a License Tax on Gasoline, Substitutes Therefor, or Combinations Thereof, Kept, Stored or Used in the State of South Carolina, Which Have Not Been Subjected to the Payment of a License Tax Under Any Other Statute of the State of South Carolina, and Providing for the Collection and Distribution of Such Tax."

Section 1 provides: "Every person, firm, corporation, municipality, County, or any subdivision thereof, in the State of South Carolina which shall import into this State from any other State or foreign Country, or shall receive by any means into this State, and keep in storage in this State for a period of twenty-four hours or more, after the same shall have lost its interstate character as a shipment in interstate commerce, any gasoline or any other like products of petroleum or under whatever name designated, which is intended to be stored or used for consumption in this State, shall pay a license tax of six cents per gallon for every gallon of gasoline, or other like products of petroleum aforementioned, which shall have been shipped or imported into this State from any other State or foreign Country, and which shall hereafter, for a period of twenty-four hours after it loses its interstate character as a shipment of interstate commerce be kept in storage in this State to be used and consumed in this State by any person, firm, or corporation, *** and which has not already been subjected to the payment of the license taxes imposed upon the sale thereof by acts of the General Assembly of the State of South Carolina," designating particularly the Acts of 1925 [166 S.C. 121] and 1929 imposing license taxes for the privilege of dealing in gasoline or like products of petroleum, as therein defined.

Section 6 provides: "Nothing within this Act shall be construed to impose a license tax upon any selling agent, consumer, or retailer, selling, consigning, shipping, distributing or using gasoline, combinations thereof, or substitutes therefor, which may have been bought from any oil company on which the license taxes imposed by Act No. 34, Acts of the General Assembly of 1925, approved the 23rd of March, 1925, and Act No. 102, Acts of the General Assembly of 1929, approved the 16th day of March, 1929, have been paid nor shall this Act be construed as applying in the case of interstate commerce."

In substance, petitioner alleges that it conducts a bleachery in Aiken county, S. C., and in the process of its work and manufacture uses much gasoline; that at present and for a number of years heretofore it has been its practice to buy its gasoline in bulk from persons residing or doing business without the state of South Carolina; that such gasoline is purchased outright at the place of business of the out-of-state dealer, and the product so purchased is shipped in interstate commerce to its plant, where, upon arrival, it is unloaded and stored and kept in storage in its own tanks for more than twenty-four hours, until needed for use in its manufacturing processes and for its own purposes alone; that though there is at Charleston, S. C., a refinery conducted by the Standard Oil Company, at which large quantities of gasoline are produced, it has not in the past or present purchased such gasoline, but "has found it advisable" to purchase its gasoline from dealers beyond the state of South Carolina in the manner above outlined. That this practice is followed not alone by petitioner but also by other large users of gasoline in South Carolina in like plight. That it is its intention to continue the purchase of gasoline for its own use in its manufacturing processes as above stated, its annual purchases in bulk from without the State of South Carolina being estimated at approximately 35,000 gallons.

This court is asked to declare the act of 1930 inapplicable to plaintiff and others in like plight upon the facts alleged; and that, if found applicable, the same be declared unconstitutional under both the State and Federal Constitutions in the particulars set forth.

To the petition herein the Attorney General, on behalf of respondents, filed a general demurrer to the effect that "no part of said Act violates the clauses of the Constitution of the United States, nor of the State of South Carolina, as alleged in the Complaint."

The following questions are presented:

First. Under the Federal Constitution--

(a) The act burdens Interstate Commerce.

(b) The act discriminates against gasoline produced in other states.

(c) The act taxes two things: (1) Interstate importation, (2) storage with the state; that these two essentials are inseparable for the purposes of the tax and hence act discriminatory and burden on interstate commerce.

Second. Under the State Constitution--

(a) The tax is a property tax repugnant to section 1, article 10, of the Constitution.

(b) The tax is not an excise tax, but is a license tax within the constitutional definition, applying only to "occupations and businesses," and as to petitioner contravenes this constitutional provision.

The act in question may be said to be complementary to the other statutes of South Carolina under which are assessed a gallonage tax on gasoline and other petroleum products. Indeed, it expressly excludes from its provisions all gasoline upon which a like tax has been paid under other statutes. It so declares in its title and specifically designates in its body the statutes, payment of the tax under which exempts from its burden

It is a settled rule of statutory construction that it is the duty of the court to ascertain the intent of the Legislature and to give it effect so far as possible within constitutional limitations. When a statute is a part of other legislation, designed as a whole to establish an expressed state policy, the court should strive to effectuate that policy. To aid in its construction, the statute must be read in the light of cognate legislation. Tallevast v. Kaminski, 146 S.C. 225, 143 S.E. 796. And, in construing statutes on the same subject, "they shall be taken together, and construed in pari materia; even though there be no express reference by the latter statute to the former." State v. Fields, 2 Bailey, 554; 25 R. L. C. p. 1060. See, also, Columbia Gaslight Co. v. Mobley, 139 S.C. 113, 137 S.E. 211.

"The rule that statutes in pari materia should be construed together applies with peculiar force to statutes that are contemporaneous." 25 R. C. L. p. 1062.

This court has said: "There is no rule better supported by justice and wisdom than that, when there are several acts on the same subject, they should be read together as one act, so far as their provisions are consistent; as by this means, the mischief, the remedy, and the intention, of the legislature, and more distinctly seen and applied." (Italics ours.) Richards v. McDaniel, 2 Mill Const. 18.

While, as a general rule, reference to statutes in pari materia for purposes of construction has been made largely where there is ambiguity in the language of the statute construed, yet this principle has not been limited solely to such instances.

"Statutes in pari materia must be construed together and given a construction, if possible, which violates no constitutional provision." (Syllabus) Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363, 70 A. L. R. 550.

Again: "These two acts are cognate parts of a single purpose--the liquidation and retirement of designated road and bridge bonds --in the accomplishment of which purpose the provisions of the two Acts are inextricably inter-related. They should therefore be construed in pari materia as one enactment." (Italics ours.) Amos v. Mathews, 99 Fla. 1, 126 So. 308, 313.

In South Carolina, commencing about a decade ago, the General Assembly expressed its public policy as to revenue to be derived from the use of gasoline. 32 St. at Large, p. 835. The tax then imposed was 2 cents a gallon. In 1925 (34 St. at Large, p. 51) the tax was increased to 5 cents, and in 1929, to 6 cents on the gallon. These statutes, however, only reached "dealers" in this commodity.

They provided: "That every oil company, person, firm or corporation doing domestic or intra-state business within this State, and engaging in the business of selling consigning, using, shipping, or distributing for the purpose of sale within this State, any gasoline or any substitute therefor, or combination thereof, for the privilege of carrying on such business, shall be subject to the payment of a license tax, which tax shall be measured by and graduated in accordance with the volume of sales of such oil company within the State. Every such oil company shall pay to the State an amount of money equal to six (6) cents per gallon on all gasoline, combinations thereof, or...