Harco Corporation v. Martin, Com'R of Rev.

• Decision Date: 29 October 1937
• Citation: 271 Ky. 572
• Parties: Harco Corporation v. Martin, Commissioner of Revenue.
• Court: United States State Supreme Court — District of Kentucky

271 Ky. 572

Harco Corporation v. Martin, Commissioner of Revenue.

Court of Appeals of Kentucky.

October 29, 1937.

1. Statutes. — All parts of the statute are to be interpreted in the light of the purpose attempted to be accomplished, and the employed terms are to be construed, if possible, so as to carry out that intention and accomplish that purpose.

2. Statutes. — All parts of a statute are to be construed in light of

the purpose attempted to be accomplished and so as to accomplish that purpose if possible.

3. Licenses. — Under statute requiring oil retailers to procure licenses and to pay a tax of $15 for each county in which each "wagon" is used by retailer in transporting or retailing oil, fees are not laid on the "wagon" but upon operation of vehicle in conducting business licensed, and hence fee is required for each motor vehicle used in the business and is not limited to animal-drawn wagons (Ky. Stats., sec. 4224).

4. Statutes. — Repeals by implication are not favored.

5. Statutes. — A statute would not be considered as repealing by implication a prior statute unless the repugnancy between the two statutes is wholly irreconcilable.

6. Statutes. — Court must construe successive statutes so that both shall be operative.

7. Statutes. — If successive statutes can be reasonably construed together so as to harmonize them, both will be sustained and repeals by implication will not be declared, but if both cannot be sustained without violence to some part of language employed in one or both, they should be so construed that as much as possible of each will remain.

8. Statutes. — A statute will not be considered as repealing a former statute by implication unless the subsequent statute is upon the same subject and plainly repugnant to the former, or subsequent statute covers whole subject of the former statute and plainly shows that it was intended as a substitute therefor.

9. Licenses. — Statute imposing tax on gasoline and amendment thereto requiring retail dealers in gasoline to pay a tax on gasoline and other petroleum products sold, measured by the quantity sold, did not preclude the placing of a higher or an additional tax upon dealers of the same commodity who conducted their business in a manner so as to justify a legal classification (Acts 1920, c. 93, as amended by Acts 1922, c. 90).

10. Licenses. — Statute requiring oil retailers to procure licenses and to pay a tax of $15 for each county in which each "wagon" is used in transporting or retailing oil was not repealed by subsequent statute imposing tax on gasoline and amendment thereto requiring retail dealers to pay a tax on gas and other petroleum products, measured by the quantity sold, even if amendment taxed the privilege of selling the petroleum products, since statutes did not relate to the same subject (Ky. Stats., sec. 4224; Acts 1920, c. 93, as amended by Acts 1922, c. 90).

11. Licenses. — Statute requiring oil retailers to procure licenses and to pay a tax of $15 for each county in which each "wagon" is used in transporting or retailing oil was not repealed by subsequently enacted motor vehicle registration license statutes exacting fee, since statutes did not relate to the same subject (Ky. Stats., secs. 2739g-1 et seq., 4224).

12. Licenses. — Motor vehicle registration license statutes with their attached fees are strictly police regulations and not revenue statutes, and hence the imposition of such a tax, in addition to tax imposed under statute requiring persons engaged in selling oil at retail to procure license and to pay tax of $15 for each county in which each "wagon" is used in transporting or retailing oil, would not constitute "double taxation" (Ky. Stats., secs. 2739g-1 et seq., 4224).

13. Licenses; Taxation. — The imposition of a property tax and also a license or occupation tax is not within the prohibition against "double taxation" nor is, ordinarily, the imposition of two or more licenses or occupation taxes.

14. Licenses. — Statute requiring oil retailers to procure licenses and to pay a tax of $15 for each county in which each wagon used in transporting or retailing oil is used is not invalid as discriminatory in that no such tax is exacted from dealers in the same commodities who conduct their business from a stationary store at a permanent location, since such traveling dealers enjoy a privilege not enjoyed by a localized dealer in the same commodity (Ky. Stats., sec. 4224).

Appeal from Franklin Circuit Court.

CLIFFORD E. SMITH, CLYDE E. REED, SAMUEL M. ROSENSTEIN and J.J. LEARY for appellant.

HUBERT MEREDITH, Attorney General, and W. OWEN KELLER, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

The parts of section 4224 of our present Statutes material to this controversy are: "Before engaging in any occupation or selling any articles named in this subdivision of article 12 of this act, the person desiring to do so shall procure license and pay the tax thereon as follows: * * * To selling by retail, petroleum, lubricating or other oil, for each wagon used in transporting or retailing such oils, fifteen dollars for each county in which each wagon is so used."

It was enacted in its present form in subdivision 4 of article 12 of chapter 22, page 88 of the Session Acts of 1906. The original act dealing with the subject matter, but more limited in its scope, was enacted in 1902, being chapter 128, article 10, secs. 25 and 32, found on pages 353 and 355 of the Session Acts of that year. Since the last enactment of that statute, others levying a tax on gas alone and a license tax, in the nature of a police regulation, upon motor vehicles operated upon the public highways of the state, became laws.

Appellant and plaintiff below, the Harco Corporation, is engaged in the business of wholesaling and retailing gas and motor oils used in the propelling of motor vehicles, which it transacts, not at a stationary place for the operation of its business, but by the use of a motor truck traveling upon and over the public highways upon which it transports the products in which it deals, with a tank upon its truck, to its various customers, and which business, conducted in that manner, it transacts in the counties of Bracken, Harrison, Robertson, and Scott in this commonwealth. Plaintiff, for itself and others similarly situated, filed this declaratory judgment action in the Franklin circuit court against defendant and appellee, James W. Martin, commissioner of revenue of the commonwealth, and in its petition it attacks the right of the commonwealth, through its commissioner of revenue, to collect the license fees mentioned in the excerpt supra from section 4224 of our Statutes — principally upon these grounds: (1) That the statute exacts the license fee therein imposed on "each wagon used in transporting or retailing such oils," etc., and that the term "wagon" as therein employed does not, and was not intended by the Legislature to embrace a motor propelled vehicle, but only a vehicle propelled by muscular power of animals universally employed for that purpose before the advent of motor propelled vehicles, and still employed for that purpose to a limited extent. But, if mistaken in that contention, and it should be held that plaintiff's motor propelled vehicle is embraced by the terms of the statute, then (2) that plaintiff is not liable for the payment of the prescribed fees, for these reasons: (a) Because the statute was repealed by implication through the enactment of our two first gasoline tax statutes; or (b) that it was repealed by our statutes imposing a license on the registration of motor vehicles including trucks; (3) that the burden imposed by the attacked provisions of section 4224, supra, is discriminatory, in that no such tax is exacted from dealers in the same commodities who conduct their business from a stationary store at a permanent location; and (4) that the enforcement of the statute will impose upon those engaged in the burdened business double taxation. The learned trial judge sustained defendant's demurrer filed to the petition, and plaintiff declining to plead further, it was dismissed, to reverse which it prosecutes this appeal.

Before attempting a discussion or a determination of the grounds and reasons contended for it might be stated that, if neither of the reasons urged in support of ground (2) are sustained by us, then a consideration of ground (3) and ground (4) will become unnecessary, for if such reasons are held by us to be inadequate and unfounded there will exist no unlawful discrimination as a support for either the third or fourth ground of attack. Nevertheless, before closing the opinion we will briefly express our views upon the effects of the alleged "double taxation" forming the only support of ground (4). Our determination of the reasons in support of ground (2) will also sufficiently deal with the reasons for ground (3), i.e., unlawful discrimination, and will also destroy the reliance on "double taxation" as the exclusive reason for ground (4). Having said this much we will now proceed to a consideration of the arguments advanced for freeing plaintiff and others for whom he sues from the obligation of paying the license fees prescribed in the attacked statute.

1. Learned counsel for plaintiff devote 25 pages of their printed brief to a discussion of ground (1) supra. In it they make a most plausible and earnest argument to the effect that an animal drawn wagon is the only character of vehicle upon which the statute levies the imposed license fee, and, therefore, the statute cannot be interpreted so as to embrace a motor propelled vehicle which counsel contend is not a wagon as contemplated by the statute. They cite a number of cases from other jurisdictions drawing a distinction between a muscular propelled vehicle (concededly a wagon), and its successor, a motor propelled vehicle, to which latter class plaintiff's...