Hart Refineries v. Harmon

• Decision Date: 31 January 1928
• Docket Number: 6234.
• Citation: 263 P. 687,81 Mont. 423
• Parties: HART REFINERIES v. HARMON, State Treasurer.
• Court: Montana Supreme Court

263 P. 687

81 Mont. 423

HART REFINERIES v. HARMON, State Treasurer.

No. 6234.

Supreme Court of Montana

January 31, 1928

Appeal from District Court, Lewis and Clark County; A. J. Horsky Judge.

Action by the Hart Refineries against W. E. Harmon, as State Treasurer. From a judgment on the pleadings in favor of defendant, plaintiff appeals. Affirmed.

John E Patterson, of Missoula, for appellant.

L. A Foot, Atty. Gen., and A. H. Angstman, Asst. Atty. Gen., for respondent.

GALEN J.

Under protest the plaintiff paid unto the defendant, as state treasurer, for the quarter ending September 30, 1925, a license tax, pursuant to the provisions of chapter 186 of the Laws of 1925, in an amount equal to two cents on each gallon of gasoline and distillate "refined, manufactured, produced and compounded by the plaintiff" and by it sold in the state, "or shipped, transported or imported by the plaintiff into, and distributed and sold by the plaintiff within the state of Montana after it had arrived in and was at a state of rest within the state * * * whether sold in original packages or in * * * broken packages." This action was instituted to recover the tax so paid. Judgment was entered upon the pleadings in defendant's favor and appeal is by the plaintiff prosecuted therefrom.

It is the plaintiff's contention that the statute upon the authority of which the tax was collected is unconstitutional. It is urged that it discriminates between Montana products and those imported into the state; that it is in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States; and also section 11 of article 12, section 11 of article 15, and section 26 of article 5 of the state Constitution. Section 1 of the Fourteenth Amendment, so far as applicable, provides that:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States * * * nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws."

Section 11 of article 12 of the state Constitution provides that:

"Taxes shall be levied and collected by general laws and for public purposes only," and that "they shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax."

Section 11 of article 15 of the state Constitution denies to foreign corporations engaged in business in this state "any greater rights or privileges that those possessed or enjoyed" by domestic corporations; and section 26 of article 5 of our Constitution restricts the Legislative Assembly, among other things, from passing a local or special law where a general law can be made applicable.

The statute provides:

"As used in this act: The term 'person' means and includes every individual, firm, association, joint-stock company, syndicate, and corporation.

The term 'distributor' means and includes every person who engages in the business in the state of refining, manufacturing, producing, or compounding gasoline or distillate, and selling the same in this state; and also every person who engages in the business in this state of shipping, transporting or importing any gasoline or distillate into, and making original sales of the same, in this state.

The term 'dealer' means and includes every person, other than a distributor, who engages in the business in this state, of distributing or selling gasoline or distillate within the state." Section 2381, R. C. 1921.

The act under attack (chapter 186, Laws of 1925) is amendatory of the provisions of sections 2382, 2383, and 2392 of the Revised Codes of 1921, whereby it is provided, so far as pertinent here, that:

"Every distributor shall * * * pay to the state treasurer a license tax for engaging in and carrying on such business in this state, in an amount equal to two cents for each gallon of gasoline, and two cents for each gallon of distillate refined, manufactured, produced or compounded by such distributor and sold by him in this state, or shipped, transported or imported by such distributor into, and distributed and sold by him within this state, after it had arrived in and was brought to rest within this state, whether sold in the original packages or in the broken packages, during such year, provided that all gasoline and distillate distributed by any distributor to any of its service stations in this state shall be deemed to have been sold, and shall be treated and considered, in computing such license tax in the same manner as though the same had been sold to dealers or other persons." Section 2382.

"Every dealer shall, * * * when engaged in such business in this state, pay to the state treasurer * * * a license tax for engaging in such business in this state, equal to two cents for each gallon of gasoline and two cents for each gallon of distillate sold or distributed by such dealer in this state during such year, provided however, that no gasoline or distillate sold by such dealer, which was purchased by him from a producer who had paid the tax thereon, shall be included or considered in determining the amount of such license tax to be paid by such dealer, but only such gasoline and distillate as was shipped, transported or imported into this state and purchased by such dealer, before it had arrived in and was brought to rest within this state and then resold by such dealer, whether in the original packages or in broken packages, shall be included or considered for the purpose of computing the amount of such license tax." Section 2383.

The principle contention is that the law is discriminatory. Upon similar onslaught this act has been by this court held to be constitutional (State v. Silver Bow Refining Co. [Mont.] 252 P. 301), and notwithstanding the elaborate brief and argument of learned counsel for the appellant, we see no good reason to change our views in this regard.

1. The statute is not violative of the Fourteenth Amendment to the Constitution of the United States. State v. Silver Bow Refining Co., supra. That which would invalidate the law because of unjust discrimination has been thoroughly considered in the case last cited, and in the two cases entitled State v. Sunburst Refining Co., 73...