Oregon Short Line Railroad Co. v. Pfost, 6071

• Decision Date: 16 October 1933
• Docket Number: 6071
• Citation: 27 P.2d 877,53 Idaho 559
• Parties: OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Applicant, v. EMMITT PFOST, Commissioner of Law Enforcement of the State of Idaho, Defendant
• Court: Idaho Supreme Court

27 P.2d 877

53 Idaho 559

OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Applicant, v. EMMITT PFOST, Commissioner of Law Enforcement of the State of Idaho, Defendant

No. 6071

Supreme Court of Idaho

October 16, 1933

LICENSES - GASOLINE TAX - RAILROADS-PUBLIC HIGHWAY-STATUTES CONSTRUCTION OF-CONSTITUTIONAL LAW.

1. Where there is substantial doubt regarding legislature's intent in using term, court must, from language of statute and its history, determine intent.

2. Constitutional provisions should be given practical and reasonable construction of what was probably in minds of framers.

3. Constitutional provision stating railroads are "public highways" uses expression in sense in which term is ordinarily applied to railroads (Const., art. 11, sec. 5).

4. Words should be given usual and ordinary meaning in construing statute.

5. Court should consider reason for law in construing statute.

6. Railroad held not "public highway" within gasoline tax statute so as to make railroad liable for tax on gasoline used in internal combustion engines on its railroad tracks and right-of-way (Laws 1933, chap. 46, sec. 18; Const., art 11, sec. 5).

7. Gasoline tax statute must be construed as whole in determining whether legislature intended to include railroads as public highways (Laws 1933, chap. 46, sec. 18).

8. Court in determining whether gasoline tax statute included railroads must assume that legislature, when enacting statute, was familiar with court decision that railroads should not be considered as public highways in ordinary sense (Laws 1933, chap. 46, sec. 18).

Original proceeding for a Writ of Mandate. Writ granted.

Writ of mandate issued.

Geo. H Smith and H. B. Thompson, for Applicant.

In construing a word or expression of a statute susceptible of two or more meanings, the court will adopt the interpretation most in accord with the manifest purpose of the statute as gathered from the context; and where the subject matter to which the word refers is not the same in both clauses, the same meaning will not be attributed to the word in both instances. (25 Ruling Case Law, 994, 995.)

The term "public highway" has two well-established distinct meanings, one of which is such as defined by sec. 39-101, I. C. A., as the term is generally used, and the other a restricted meaning in which the term is used only to denote obligation to the public. (Western Union Tel. Co. v. Pennsylvania R. R. Co., 195 U.S. 594, 25 S.Ct. 150, 49 L.Ed. 332, 1 Ann. Cas. 533; Burlington, K. & S.W. R. Co. v. Johnson, 38 Kan. 142, 16 P. 125.)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Defendant.

Not only is the Oregon Short Line Railroad a public highway, so far as its roadbed is concerned, but its roadbed, as distinct from the transportation service operated over it, has been expressly held to be a post road. (Sec. 481, U.S.C. A., title 39; Postal Tel. Co. v. Oregon S. L. R. Co., (Ida.) 104 F. 623; Postal Tel. Co. v. Oregon S. L. R. Co., (Mont.) 114 F. 787.

Where an act defines terms used in the act, the terms must be construed as defined in the act. (In re Monrovia Evening Post, 199 Cal. 263, 248 P. 1017.)

When words or terms having a definite legal meaning are used in a statute without defining them, they will be construed according to their accepted legal definition. (Leet v. Barr, 104 Ore. 32, 206 P. 548.)

WERNETTE, J. Budge, C. J., Givens, Morgan and Holden, JJ., concur.

OPINION

WERNETTE, J.

This is an application for a writ of mandate, to require the Commissioner of Law Enforcement of the State of Idaho to approve the applicant's claim for refund of the excise gasoline tax paid by it, under protest, to the state pursuant to the provisions of section 18, chapter 46, Laws of 1933.

The applicant, Oregon Short Line Railroad Corporation, is operating as a common carrier, with its main line extending across the southern part of the state in an easterly and westerly direction. It also owns and operates a number of branch lines in the south part of the state. Prior to the year 1933 it was never called upon, nor did it pay any excise tax on motor fuels under the laws in effect in the state of Idaho, for which chapter 46, Laws of 1933, entitled "An Act Imposing an Excise Tax on Motor Fuels," etc., was substituted. After the law of chapter 46, Laws of 1933, became effective demand was made upon applicant by Emmitt Pfost, Commissioner of Law Enforcement for the state of Idaho, defendant, to pay to the state the excise tax on motor fuels provided for in chapter 46, Laws of 1933, on all motor fuels used by the railroad company in the propulsion of internal combustion engines on its railroad tracks and right-of-way; such as gasoline electric motor-cars used on the branch lines in the transportation of passengers and express, section motor-cars, signal-men's speeders, etc. The applicant paid, under protest. The applicant then, pursuant to chapter 46, Laws of 1933, presented to the commissioner of law enforcement the necessary affidavit, etc., as required by the act, for a refund of the moneys so paid under protest, which the commissioner of law enforcement declined and refused to approve and deliver to the state board of examiners for allowance. This refusal on the part of the commissioner of law enforcement was based upon the opinion and advice of the attorney general of the state, to the effect that the right-of-way and railroad tracks of the petitioner constituted a public highway of the state of Idaho within the letter, meaning and intent of chapter 46, Laws of 1933, requiring it to pay the excise tax.

No question as to jurisdiction is before us. It is conceded that there is but one question involved, namely: Are railroads public highways within the meaning of the motor fuels tax act, chapter 46, Laws of 1933?

The history of the present law dates back to 1923, at which time the Idaho legislature passed an act known as chapter 172, Laws of 1923, providing for the payment of an excise tax (therein designated as a license tax) on gasoline, to be placed to the credit of the state highway fund for the construction and maintenance of highways maintained by the state. Section 1 of the 1923 act contained definitions of "motor vehicles," "motor fuels" and "dealers. " Section 2 required a monthly report by dealers of motor fuel and payment of a license tax of two cents per gallon. Section 4 of the act provided for the payment of the tax monthly to the commissioner of law enforcement, who should promptly turn it over to the state treasurer, which latter officer was required to "place the same to the credit of the state highway fund." To aid and expedite the enforcement of the act it was provided by section 7 that it should be unlawful for any railroad, or other common carrier, or anyone else to make delivery in the state of Idaho of motor fuels to anyone subject to the act without making certain reports to the commissioner of law enforcement. Section 8 of the act provided: "All motor fuels imported into the state by motor vehicle, or other vehicle operating on the public highways, whether such vehicle is, or is not the property of a common carrier, shall be subject to all of the provisions of this act, and the owner of such vehicle shall be responsible," etc. Section 10 provided: "Any person, firm or corporation who shall buy and use any motor fuels as defined in this act for purposes other than the operation of motors, motor vehicles, tractors or other engines . . . . ," should be entitled to a refund upon compliance of the necessary procedure outlined therein.

In 1925 the legislature amended sections 2, 3, 9 and 10 of chapter 172, Laws of 1923, by chapter 185, Laws of 1925. And it is worthy of note that one of the objects or purposes of the 1925 act, as stated in the title of the act, is as follows: "Authorizing refunds of tax paid on motor fuels not used on public highways." Section 10, dealing with refunds, as amended and pertinent to the issue, reads: "For the purpose of operating or propelling stationary gas engines, tractors, motor boats, and aeroplanes, or who shall purchase or use any of such fuel for cleaning or dyeing or other commercial use of the same, except in motor vehicles operated or intended to be operated upon any of the public highways of the State of Idaho . . . ." The amended act providing that the proceeds of the tax be placed to the credit of the state highway fund, as was originally required by the 1923 act.

Again in 1927 the law was amended by chapter 231, Laws of 1927. The amendments were very inconsequential; there was a slight amendment to section 10 with reference to the time in which applications for refunds were to be filed with the commissioner, and a new section was added providing a special penalty for the filing of a fraudulent claim for refund.

The law as amended in 1929 by chapter 283, Laws of 1929, remained practically the same except that section 4, as amended in 1929, made provision that the tax collected on gasoline sold for and used in aeroplanes should be placed by the state treasurer in the state aeronautics fund.

In 1931 the legislature again amended the law by amending section 4, providing that ten per cent of the tax collected should be placed in a fund to be known as the "motor fuel refund fund." And section 7 relative to reports by anyone making delivery of motor fuel transported by them to points within the state of Idaho, was also amended by different wording, but in substance it remained substantially the same. The law, as amended, is now to be found as chapter 7, title 48, Idaho Code Annotated.

In 1933 the entire law was rewritten by the legislature, enacting chapter 46, Laws of 1933. In the 1933 act the terms "motor vehicles," "motor...