Pioneer Oil & Refining Co. v. State

• Decision Date: 04 May 1925
• Docket Number: (No. 6856.)
• Parties: PIONEER OIL & REFINING CO. et al. v. STATE.
• Court: Texas Court of Appeals

Page 615

273 S.W. 615

PIONEER OIL & REFINING CO. et al. v. STATE.

(No. 6856.)

Court of Civil Appeals of Texas. Austin.

May 4, 1925.

Rehearing Denied May 27, 1925.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Action by the State of Texas against the Pioneer Oil & Refining Company and another to recover gasoline tax. From a judgment for part of taxes sued for, defendants appeal. Reversed and rendered.

M. L. Roark, of San Antonio, D. C. Proctor, of Houston, and Batts & Brooks, of Austin, for appellants.

H. O. Caster, of Bartlesville, Okl., and Phillips, Trammell & Chizum, of Fort Worth, amici curiæ.

W. A. Keeling, Atty. Gen., and Frank M. Kemp, Asst. Atty. Gen., for the State.

BLAIR, J.

The state instituted this suit against appellants, Pioneer Oil & Refining Company and the Slimp Oil Company, asserting the right under chapter 134, Acts 38th Legislature, Regular Session, to recover a tax of one cent on each gallon of gasoline sold by them for consumption within this state during the months of April and May, 1923. The court tried the case on stipulations covering the material facts, and from adverse judgments for a part of the taxes sued for each of the appellants has perfected an appeal.

The judgments are based upon a construction of chapter 134 as authorizing the levy of an occupation tax of one cent on each gallon of gasoline sold by any dealer at retail for consumption within this state. This construction of the act by the trial court is, in our opinion, correct. The judgments also reflect the proper amount of taxes due by each of the appellants as measured by sales at retail shown by the stipulations, and should be affirmed, unless the unconditional repeal of the act without a saving clause as to the taxes sued for bars the state's right to collect them. We have concluded that the Legislature did not intend that the state's right to collect the taxes sued for should survive the unconditional and express repeal of the laws under which that right arose.

Three acts were passed by the 38th Legislature, each imposing some character of tax on the sale of gasoline. Chapter 134 was the first act and became effective April 1, 1923. Prior to this act there was no law in Texas imposing a tax on the occupation of dealing in gasoline. This act was passed at the regular session, and was known as "House Bill No. 12." The second act was chapter 55, passed at the second called session, and became effective June 4, 1923. The act was known as "House Bill No. 109," and section 9 repealed eo nomine "House Bill No. 12," which is chapter 134, acts of the regular session, and contained no saving clause as to taxes, which had accrued under chapter 134 before the repealing act became effective. The third act was chapter 5, passed at the third called session, and became effective June 14, 1923. This act repealed eo nomine "House Bill No. 109," which is chapter 5, acts second called session, and all other laws on the subject, with the following saving clause:

"Sec. 12. The act passed at the Second Called Session of the Thirty-Eighth Legislature, being House Bill No. 109, levying and occupation tax based on sales of gasoline, and any other law heretofore enacted levying such an occupation tax, is hereby repealed: Provided, that if any officer was charged with the duty under any such prior law to bring suit or collect or enforce collection in any manner of any such occupation tax, penalties or interest, such officer shall discharge such duty at any time hereafter as to any such taxes, penalties or interest accruing under any such prior law before its repeal, according to such prior law, notwithstanding the repeal of any such prior law either by this act or any other act, and any and all provisions of any such prior law as to acts or omissions done or performed while such prior law was in effect shall remain in effect as to such acts or omissions: Provided, that no penalties shall accrue on tax that has not been paid until this act becomes effective."

The state first contends that chapter 55 is void as being violative of the uniformity and equality clause of the Constitution, and being a void act cannot repeal chapter 134. Probably chapter 55 is void for the reason advanced, but that fact does not dispose of the case, unless the repealing clause is also void and falls with the void statute. The repealing act recites in its caption, "that if any part of this act be declared ineffective, such decision shall not affect the remaining provisions." The Legislature's intention to unconditionally and expressly repeal chapter 134 is found in the following sections of the repealing act:

"Sec. 6. The tax hereby imposed shall be in lieu of all other occupation taxes on the sale of gasoline or any of its substitutes and all laws or parts of laws heretofore enacted and in conflict herewith are hereby repealed. * * *"

"Sec. 8. If any section or provision of this act shall be held void and of no effect such construction shall not affect the remaining sections or provisions of this act which shall remain in full force and effect.

"Sec. 9. That House Bill No. 12, Acts of the Thirty-Eighth Legislature, Regular Session, effective April 1, 1923, be, and the same is hereby in all things expressly repealed."

It is a well-settled rule of law that a repealing clause in a statute may be valid although every other clause is unconstitutional, if such is plainly the legislative intent. The following quotation, from Sutherland on Statutory Construction, correctly states the test of the rule:

"A repealing clause in a statute may be valid although every other clause is unconstitutional, if such is plainly the legislative intent. But where the repeal is intended to clear the way for the operation of the act containing the repealing clause, thereby showing the intention to displace the old law with the new, if the latter is unconstitutional, the repealing clause would be dependent and inoperative. Where the evident purpose of the repeal is to displace the old law and substitute the new in its stead, the repealing section or clause being dependent upon that purpose of substitution, necessarily falls when falls the main purpose of the act."

The authority (25 Ruling Case Law, § 166) also states the rule as follows:

"Where a repeal of a prior law is inserted in an act in order to secure the unobstructed operation of the act, and the repealing law is itself held to be void, the provisions for the repeal of the prior law will fall with it, and will not be operative in the repeal of the prior law, unless the language of the repealing clause is such as to leave no doubt as to its intention to repeal a former law, in any event. Where, however, it is not clear that the Legislature, by a repealing clause attached to an unconstitutional act, intended to repeal a former statute upon the same subject, except on the supposition that the new act would take the place of the former one, the repealing clause falls with the act of which it is a part."

The authorities without doubt sustain these texts. The test of the rule seems to be not so much what the general rule of construction is, but that the rule must be understood and applied so as to ascertain the legislative intent. Commonwealth v. Mortgage Co., 227 Pa. 163, 76 A. 5; G. & W. R. Co. v. Galveston, 96 Tex. 520, 74 S. W. 537. The effect of the rule is that, if there can be found in the acts of the Legislature, either directly or by fair implication, the intention on its part to continue in force any accrued rights under a repealed statute, the right will be enforced. Clegg v. State, 42 Tex. 605. The state relies on this case to sustain its contention here made. That case is easily distinguishable from the case at bar. The acts of the Legislature there construed clearly evidenced the intention to preserve to the state the right to collect the taxes, which had accrued under the repealed act, before the repealing act became effective, for there was no unconditional repeal of the pre-existing tax laws, and the right was actually and expressly preserved to the state to recover the back taxes, which had accrued under the previously existing laws. So that case furnishes no authority for the case here, but correctly applies the rule, having first ascertained the intention of the Legislature.

A universal general rule of statutory construction is that where a right to collect a tax depends upon a statute, which has been repealed, the right ceases to exist, unless the repealing law directly or by fair implication preserves that right. Sutherland Stat. Const. § 165; 24 Cyc. 613; 25 R. C. L. § 193; Galveston & W. R. Co. v. Galveston, 96 Tex. 520, 74 S. W. 537; Bryan's Adm'r v. Harvey's Adm'r, 11 Tex. 311; Clegg v. State, 42 Tex. 605; State of Texas v. T. & N. O. R. Co., 58 Tex. Civ. App. 528, 125 S. W. 53; Galveston, H. & H. R. Co. v. Anderson (Tex. Civ. App.) 229 S. W. 998; Goodrich v. Wallis (Tex. Civ. App.) 143 S. W. 285; Stewart v. Lattner, 53 Tex. Civ. App. 330, 116 S. W. 860; Gulf, C. & S. F. R. Co. v. Lott, 2 Willson, Civ. Cas. Ct. App. § 63; Crow v. Cartledge, 99 Miss. 281, 54 So. 947, Ann. Cas. 1913E, 470; Ex parte McCardle, 7 Wall. 506, 19 L. Ed. 265; Corley v. Sewell, 77 Ind. 316; McQuilkin v. Doe, 8 Blackf. 581; Bleidorn v. Abel, 6 Iowa, 5; Commonwealth v. Mortgage Co., 227 Pa. 163, 76 A. 5.

The following quotation from additional authorities on the general subject of the effect of the unconditional repeal of a tax statute show the universality of the rule:

"A statute imposing a system of license taxes operates to repeal an existing statute relating to the same subject, when it contains an express provision for such repeal; but there can be no repeal by implication, unless the statutes are in their provisions utterly inconsistent and repugnant." 25 Cyc. p. 613.

"Where a right given by a statute is not by nature a vested right, and at the time of the repeal of the statute has not been...