Natrona County v. Casper Air Service

• Decision Date: 27 May 1975
• Docket Number: No. 4453,4453
• Citation: 536 P.2d 142
• Parties: The COUNTY OF NATRONA and Natrona County International Airport Board, Appellants (Plaintiffs below), v. CASPER AIR SERVICE, a Wyoming Corporation, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 142

536 P.2d 142

The COUNTY OF NATRONA and Natrona County International Airport Board, Appellants (Plaintiffs below), v. CASPER AIR SERVICE, a Wyoming Corporation, Appellee (Defendant below).

No. 4453.

Supreme Court of Wyoming.

May 27, 1975.

Robert Jerry Hand and Dennis M. Hand, of Hand, Hand & Hand, P. C., Casper, for appellants.

Michael J. Sullivan, of Brown, Drew, Apostolos, Barton & Massey, Casper, for appellee.

GUTHRIE, Chief Justice.

Appellants herein, the County of Natrona and Natrona County International Airport Board, plaintiffs below, appeal from the entry of a summary judgment against them by the district court in a suit against Casper Air Service, appellee, defendant below.

Plaintiff Natrona County International Airport Board is an agency established by and under the Board of County Commissioners of Natrona County, Wyoming. Plaintiffs filed their complaint, claiming the sum of $122,401.70, which was thereafter amended to claim the amount of $161,441.56. This claim was based upon the payment by way of a monthly refund to defendant for a period beginning in 1953 of two cents per gallon on all gasoline purchased by it in excess of 10,000 gallons monthly be virtue of the provisions of § 39-200, W.S.1957, 1973 Cum.Supp. The plaintiffs complain that these payments were wrongfully and unlawfully made, that defendant was not entitled to receive these sums, and that they should be returned to them as public funds. In response thereto defendant admitted that it had received these sums upon claim based upon invoices which it had submitted to the Natrona County Airport Board and that board had determined that it and all other fixed base operators were entitled to reimbursement of a portion of the taxes paid in the sum of two cents per gallon for each gallon over 10,000 purchased by the defendant monthly. By way of counterlcaim defendant sought a declaratory judgment, finding that the defendant as such fixed base operator had properly received these funds and that 'pursuant to Section 39-200, Wyoming Statutes 1957 the County (a plaintiff) is obligated to 'refund to the purchaser or use (user) of gasoline for use in aircraft at any airport in this state upon which the state gasoline tax of four cents (4cents) per gallon has been paid, two cents (2cents) per gallon on the purchase in excess of ten thousand (10,000) gallons per month," and that as a purchaser of this gasoline for use at the Natrona County Airport it was entitled to such reimbursement.

In its disposal thereof the district court entered judgment upon the motion for summary judgment as follows:

'1. That plaintiffs take nothing by their complaint herein.

'2. That defendant Casper Air Service is a 'purchaser' of gasoline for use in aircraft at a municipal or county airport within the meaning and intent of the provisions of Section 39-200, Wyoming Statutes, 1957, and as such is entitled to tax rebate payments authorized by the provisions of such statutory section.

'3. That defendant is granted judgment against plaintiffs as requested in Count I of its Complaint for all rebates accrued but unpaid through the date of this Judgment.'

The above were based upon findings which sustained this judgment.

Appellants state the question rather brusquely as follows:

'Whether a commercial dealer in aviation fuel is entitled to a tax refund on gasoline purchased for resale at an airport in Wyoming by virtue of § 39-200 Wyoming Statutes, 1957?'

It may be suggested that for purposes of our disposal this question is more properly stated, Should § 39-200, W.S.1957, 1973 Cum.Supp., be construed to allow a fixed base operator who purchases commercial aviation gasoline for itself and for resale to others and pays the original tax this tax refund of two cents per gallon on all gasoline in excess of 10,000 gallons purchased by it in a given month?

The statute involved, so far as it is directly material to the controversy, is as follows:

'All sums of money received and collected under provisions of this act shall be made payable to the board of equalization of the State of Wyoming * * *. From all funds received from gasoline used for airplanes at any municipal or county airfield, the state treasurer shall first deduct the pro rata share of the cost of collecting such gasoline tax and credit said share to the state board of equalization, the remaining funds received from such gasoline tax shall be paid the city, town or county where such airfield is located, to be used for the maintenance of such airfield. All funds so paid to the city, town or county shall not be considered to accrue to the state and the board in collection of such moneys and the state treasurer in the payment over thereof shall be construed to be the agents of each such city, town or county, and any such city, town or county shall refund to the purchaser or use (user) of gasoline for use in aircraft at any airport in this state upon which the state gasoline tax of four cents (4cents) per gallon has been paid, two cents (2cents) per gallon on the purchase in excess of ten thousand (10,000) gallons per month. Provided further, that the state treasurer shall refund to the purchaser and user of gasoline used for agricultural purposes, and purchased from any Wyoming wholesaler or dealer, the tax of four cents (4cents) as provided in section 39-200 Wyoming Statutes 1957, and the tax of one cent (1cents) as provided in section 39-202 Wyoming Statutes 1957, * * *.' (Emphasis supplied)

The basis of appellants' contention is that appellee herein is not a 'user or purchaser' as described in this statute, and appellants aim their argument at the proposition that this refund is directed at and receivable only by the ultimate user of this gasoline who consumes it in an aircraft. In the words of the appellants, 'had it been the legislature intent to refund tax to a dealer of gasoline, the phrase could have been 'shall refund to purchasers or users of gasoline for aircraft' completely omitting the key phrase 'use in."

The further suggestion is made that a better way of phrasing this if the legislature had such intention would have been to use the word 'dealer' instead of the words 'purchaser or user.' It is, of course, beyond our power or the powers of counsel to tell the legislature what words they should have used. Appellants set out in their brief that the phrase 'can be read with more than one meaning' and further state, 'Obviously, no clear expression of legislative intent can be found in the applicable statutory language,' which demonstrates an agreed ambiguity. This seems further demonstrated by the ruling of the trial court and the administrative or contemporary construction made upon this statute during the term of many years. Although appellee insists that this statute is not ambiguous in its argument, for purposes of our disposal we shall treat the statute as uncertain and susceptible to more than one meaning, so it must be considered ambiguous, Ballentine's Law Dictionary, p. 73 (1948 Ed.). The court then is confronted with the task, in its construction, of determining the legislative intent as nearly as possible, Lichty v. Lichty Const. Co., 69 Wyo. 411, 243 P.2d 151, 159; School Districts Nos. 2, 3, 6, 9, and 10, in County of Campbell v. Cook, Wyo., 424 P.2d 751, 756.

In order that we may make a determination of the legislative intent, the nature and character of this tax must be considered. This is a license tax as defined in our statute:

'A license tax of four cents per gallon is hereby levied on all gasoline used, sold or distributed for sale or use within this state to be collected as hereinafter set forth.' (Section 39-184, W.S.1957, 1973 Cum.Supp.)

Thus it is in no manner a sales or use tax on retail sales. The case of Edelman v. Boeing Air Transport, Inc., 289 U.S. 249, 251, 53 S.Ct. 591, 592, 77 L.Ed. 1155, gives recognition to the fact that as administratively applied the tax was:

'* * * not levied upon the consumption of gasoline in furnishing motive power for respondent's interstate planes. The tax is applied to the stored gasoline as it is withdrawn from the storage tanks at the airport and placed in the planes. * * *'

This view was adopted and approved in Texas Co. v. Siefried, 60 Wyo. 142, 147 P.2d 837, 842-843, rehearing denied 150 P.2d 99. The Edelman case was decided in 1933 and we must infer that the legislature had knowledge of this interpretation, Civic Ass'n of Wyoming v. Railway Motor Fuels, 57 Wyo. 213, 116 P.2d 236, 245; Board of County Commissioners of County of Albany v. White, 79 Wyo. 420, 335 P.2d 433, 437; and when this original provision for refund was enacted in 1935, relying upon the same words, 'purchaser or user,' had their intention been to modify these terms to include the concept of ultimate use they could have done so by proper words.

This court reiterated and expanded this definition in Texas Co. v. Siefried, supra, 147 P.2d at 842, discussing the comprehensive nature of the word 'use' and said:

"* * * Possibly the word may have the meaning of 'consume', but such is not its usual significance. See In re Moor's Estate, 163 Mich. 353, 128 N.W. 198. As we view the sense of the word in its relation to the language of statutes, we think it was not meant that the incidence of the tax should be restricted to gasoline actually consumed in the operation of motor vehicles on the public highways of the State." (Quoting from State v. Crane Hook Oil Storage Co., 2 Terry, De., 194, 201, 18 A.2d 427, 429.)

This case further held that the tax was not levied upon the use but may be levied upon its withdrawal from storage, and phrased it in this manner, 147 P.2d at 844:

'It is also said for the plaintiff that the peculiar wording of the Alabama Statute, viz., 'withdrawing from storage' distinguishes the Pan American case (Pan American Petroleum Corp. v. State of Alabama, 5 Cir., 67 F.2d 590) from that at bar. But we think, on principle, both the Boeing case and ...