Humble Oil & Refining Co. v. State

• Citation: 158 S.W.2d 336
• Decision Date: 14 January 1942
• Docket Number: No. 9248.,9248.
• Parties: HUMBLE OIL & REFINING CO. v. STATE.
• Court: Court of Appeals of Texas

158 S.W.2d 336

HUMBLE OIL & REFINING CO. v. STATE.

No. 9248.

Court of Civil Appeals of Texas. Austin.

January 14, 1942.

Rehearing Denied February 4, 1942.

Appeal from District Court, Travis County; J. Harris Gardner, Judge.

Suit by the State against Humble Oil & Refining Company to recover taxes due under the Chain Store Tax Act on defendant's filling or service stations. Judgment for plaintiff, and defendant appeals.

Affirmed.

T. H. McGregor and C. C. Small, both of Austin, and E. E. Townes, J. Q. Weatherly, Nelson Jones, and R. E. Seagler, all of Houston, for appellant.

Gerald C. Mann, Atty. Gen., and Glenn R. Lewis, Lee Shoptaw, Billy Goldberg, and Cecil C. Rotsch, Asst. Attys. Gen., for appellee.

McCLENDON, Chief Justice.

Suit by the State against the Humble (Humble Oil & Refining Company) to recover taxes allegedly due under the Chain Store Tax Act, Vernon's Ann.P.C. art. 1111d, Acts 1935, 44th Leg., 1st C.S. p. 1589, Ch. 400, for the years 1936-1941, inclusive, on the Humble's Texas filling or service stations. Section 5 excludes from the definition of stores taxed under the Act "any place of business engaged exclusively in the storing, selling, or distributing of petroleum products and servicing of motor vehicles"; and the State's suit is predicated upon the theory that the Humble's service stations were not embraced in this exclusion, on the ground that the Humble sold at each of its stations during the taxing periods various specified automobile accessories in addition to petroleum products. See the Standard case (Standard Oil Co. of Texas v. State, Tex.Civ.App., 142 S.W. 2d 519, 523, error refused) considered below. The Humble's answer, while admitting that it sold in each of its stations some or all of the specified accessories, alleged that such sales were only incidental to "servicing" motor vehicles, and therefore its stations were within the above quoted exclusion, upon the following (substantially stated) alleged grounds: (1) The term "servicing of motor vehicles" has a well defined meaning in the service station business and includes the sale of accessories incidental and necessary to such servicing; (2) the history of the Act (set out in detail) in its passage through the legislature evidenced a legislative intention to so construe it; (3) in the alternative the expression "servicing of motor vehicles" is of doubtful meaning which doubt should be resolved in its favor under the strict construction doctrine of tax legislation in favor of the taxpayer; (4) departmental construction of the Act. The answer further asserted that the Act is confiscatory, and therefore unconstitutional, if held applicable to its service station business. The allegations of the answer in these respects will be amplified below to the extent deemed essential to a clear understanding of the questions in issue. A general demurrer was sustained to this answer, and the case was tried upon agreed stipulation which admitted operation by the Humble of the several stations listed in the State's petition, and the sale at each of such stations of some or all of the alleged accessories, such sales being confined to those in which the accessories were actually installed upon motor vehicles in its stations. The judgment was in favor of the State for the full amount claimed, and the Humble has appealed.

The Humble has briefed its case under four points which we will consider in the order of their presentation.

Before doing so we will dispose of a motion by Humble to strike certain portions of the State's brief and a counter motion by the State to strike certain portions of Humble's brief. The State contends that the decision in the Standard case controls this case under the doctrine of stare decisis, and has attached as an exhibit to one of its briefs a printed copy of the application for writ of error in the Standard case in order to show what questions were passed upon by the Supreme Court in refusing the writ. It is this exhibit and certain statements in the State's brief regarding the issues before the courts in the Standard case that are the subjects of Humble's motion. The State's counter motion relates to similar statements in Humble's brief regarding the record showing and the issues actually involved in the Standard decision. Each side has cited numerous authorities and quoted copiously from decided cases and text writers, upon the doctrine of stare decisis. It is unnecessary to burden this opinion with a discussion of that subject. Independently of that doctrine Courts of Civil Appeals are bound by the decisions of the Supreme Court; and the refusal of a writ of error by that court has always been quite generally considered as an authoritative pronouncement by the Supreme Court approving the holdings of the Court of Civil Appeals which were essential to its decision. In 1927 the Legislature, with the manifest purpose of obtaining greater certainty regarding the effect of the Supreme Court's action upon writs of error, provided that the court should refuse the writ "where the judgment of the Court of Civil Appeals is a correct one and where the principles of law declared in the opinion of the court are correctly determined"; and "dismiss the case for want of jurisdiction" where the judgment was correct but the Supreme Court was not satisfied that the opinion in all respects had correctly declared the law. R.C. S. Art. 1728, as amended by Acts 40th Leg., p. 214, Ch. 144, § 1, Vernon's Ann. Civ.St. art. 1728. This effort at clarification, however, has not eliminated in every case the element of uncertainty as to the authoritative effect of a particular holding of the Court of Civil Appeals and resort to the application for writ of error may be had to assist in clarification of a doubtful issue. As illustrative of the practice of consulting the application for writ of error see State v. Hatcher, Tex.Civ.App., 52 S. W.2d 794; Hatcher v. State, 125 Tex. 84, 81 S.W.2d 499, 98 A.L.R. 1213. We sustain both motions in so far as they attempt to make portions of the record in the Standard case parts of the record in this case. We shall, however, consider the application in the Standard case to the extent we may deem helpful in determining what was decided by the Supreme Court in that case.

The Humble's first point reads: "Defendant having alleged that the language `servicing of motor vehicles' is a phrase connected with the service station trade and that the signification attached to this phrase by experts in said trade includes all acts upon which plaintiff based this suit, it was error for the court to sustain a general demurrer to defendant's answer."

The Humble's answer sets forth at some length the rise and growth of motor vehicular use up to the year 1935; the construction of highways both state and national to accommodate that use; the practical universality of that use as a means of transportation; the inception and growth of the service station business; its necessity to motor vehicular use; the necessity for supplying motor vehicles with accessories, as a part of the service station business; and the inadequacy of other establishments dealing in such accessories. It is alleged in this connection that there was not a service station in Texas which did not sell accessories as part of its servicing business; and that all of the stations under group management were operated by those "also engaged in the production, processing, and refining of crude oil and its manufacture into gasoline and other petroleum products." The paragraph asserting the trade meaning of the term in question we copy in full from Humble's brief:

"That prior to and at the time of the passage of H.B. 18, above referred to, the term `servicing of motor vehicles' appearing in the Chain Store Tax law, were words used in connection with a particular trade or business known as the gasoline service station business, and said term, as used and understood in said business, circumscribed a business devoted exclusively to the fueling, lubricating and cleaning of motor vehicles, supplying air for tires, water for motors and supplying and servicing or attaching tire valve cores, automobile windshield wipers, automobile spark plugs, automobile fuses, automobile light bulbs, automobile fan belts, automobile battery cables, automobile batteries, automobile tires and automobile tire tubes, and such other parts as were incidental and beneficial to the principal business of selling gasoline, oil and petroleum products generally, such as were demanded by the motoring public, and such as the motoring public had grown accustomed to procuring from such places of business incidental to and in connection with their purchases of gasoline and oil; that the term `servicing of motor vehicles' as used in the service station trade in 1935, and today, was generally understood to relate exclusively to a service station, as then and as now operated, engaged primarily in the sale of petroleum and its products and selling, incidental to such business, such accessories as are hereinabove specified, which are handled by it for the convenience of the motoring public and because of the demands of the motoring public."

The Humble's contentions under this point may be epitomized as follows:

Section 1 of Art. 10, R.C.S., relating to statutory construction reads: "The ordinary signification shall be applied to words, except words of art or words connected with a particular trade or subject matter, when they shall have the signification attached to them by experts in such art or trade, with reference to such subject matter."

The words "servicing of motor vehicles" as used in the Act are words "connected with a particular trade" (the service station business); the courts cannot judicially know the trade meaning of such words, but such meaning is a fact issue to be proved by the testimony of "experts in such trade"; this issue was not presented in the Standard case, and the...