Shafer v. Glander, 31962

CourtUnited States State Supreme Court of Ohio
Citation153 Ohio St. 483,92 N.E.2d 601
Docket NumberNo. 31962,31962
Parties, 41 O.O. 490 SHAFER v. GLANDER.
Decision Date10 May 1950

Page 483

153 Ohio St. 483
92 N.E.2d 601, 41 O.O. 490
SHAFER

v.
GLANDER.
No. 31962.
Supreme Court of Ohio.
May 10, 1950.

[92 N.E.2d 602] Syllabus by the Court.

1. The use of motor vehicle fuel is taxable only where such fuel is used for the purpose of generating power for the propulsion of motor vehicles on the public highways.

Page 484

2. The use of diesel oil is exempt from the excise tax except where such oil is used for the purpose of generating power for the driving or propulsion of motor vehicles on the public highways.

3. Any ambiguity in a law imposing a tax shall be resolved in favor of the taxpayer.

4. It was not the intention of the General Assembly to tax the use of motor vehicle fuel used only for the purpose of operating machinery in repairing and maintaining the highways. It is the use to be made of the fuel that determines taxability.

This matter came before the Board of Tax Appeals on an appeal from three final assessments made by the Tax Commissioner against the appellant under date of October 27, 1948, as follows:

(1) An assessment in the amount of $1,091.58 on the use of motor vehicle fuel for the period from July 5, 1944, to January 1, 1948.

(2) An assessment in the amount of $363.86 on the use of liquid fuel oil for the period from July 5, 1944, to January 1, 1948.

(3) An assessment in the amount of $291.12 on the use of motor vehicle fuel for the period from January 1, 1948, to August 7, 1948, inclusive.

The fuel was used to furnish power for road building machines, to wit, graders used in repairing and building public highways.

The matter was submitted on the notice of appeal, transcript of the proceedings before the Tax Commissioner, the evidence and briefs of counsel.

The tax assessed for the period from July 5, 1944, to January 1, 1948, was on the use of motor vehicle fuel and liquid fuel. The motor vehicle fuel use tax was computed at the rate of one and one-half cents per gallon under the provisions of Section 5527, General Code, and one and one-half cents per gallon under

Page 485

Section 5541, General Code. The liquid fuel use tax was computed at the rate of one cent per gallon under Sections 5542-1 and 5542-2, General Code. The tax assessed for the period from January 1, 1948, to August 7, 1948, inclusive, was on the use of motor vehicle fuel only at the rate of 2 cents per gallon under amended Section 5527, General Code, and two cents per gallon under amended Section 5541, General Code, such sections having been amended effective December 31, 1947. Sections 5542-1 and 5542-2, General Code, with reference to the liquid fuel use tax were repealed effective December 31, 1947.

The Board of Tax Appeals modified and affirmed as modified the order of the Tax Commissioner. The case is in this court pursuant to appeal under Section 5611-2, General Code.

Mr. Robert Dow Hamilton and Mr. Robert Denzler Holmes, Columbus, for appellant.

Mr. Herbert S. Duffy, Attorney General, and Mr. Donald B. Leach, Columbus, for appellee.

TURNER, Judge.

We agree with the Tax Commissioner's statement:

'It is the use of the fuel which is determinative and, if fuel is used to propel a motor vehicle upon the highway, such fuel is taxable.' But that is not our case here.

Unless the applicable statutes show clearly that the use of the fuel as here used is taxable, any ambiguity shall be resolved in favor of the taxpayer.

This well settled rule is illustrated by the language of Judge Marshall in the case of Caldwell v. State, 115 Ohio St. 458, 461, 154 N.E. 792, 793: 'The rule which has been often declared, and which was followed in that case [Cassidy v. Ellerhorst, 110 Ohio St. 535, 144 N.E. 252, 42 A.L.R. 372], is that,

Page 486

where there is ambiguity or doubt as to legislative intent, the doubt should be resolved in favor of the person upon whom the burden of taxation is sought to be imposed, and that language employed [92 N.E.2d 603] in a taxation statute should not be extended by implication beyond its clear import, or to enlarge its operation so as to embrace subjects of taxation not specifically named. This rule is so well settled as not to be longer debatable. It is supported both by authority and reason. In the interpretation of a contract the document is construed strictly against the person who prepared it, and favorably to the person who had no voice in the selection of the language. In a statute relating to the rights of citizens, as between themselves, a reasonable rule of interpretation is followed without favor to any of the parties affected by it. But in statutes where the state is involved, on the one part, and the citizen, on the other, by analogy to the same rule of interpretation governing contracts, the Legislature having chosen the language, that language will not be extended by implication beyond its clear import. Thus it is that in a penal statute, or a statute levying a tax, a rule of strictness will be followed as against the sovereign and a rule of favor as toward the citizen. This does not, of course, mean that by a simple showing of ambiguity, or of doubtful language, a taxation statute must fail entirely. The language employed should receive a fair interpretation, but its operation will never be extended by implication to embrace subjects not specifically named.'

In paragraph two of the syllabus in the case of Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574, it was held: 'But the intent of the lawmakers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly, and distinctly the sense of the lawmaking

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body, there is no occasion to resort to other means of interpretation. The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact. That body should be held to mean what it has plainly expressed, and hence no room is left for construction.'

When the General Assembly enacted the several statutes levying a tax upon the use of motor fuel the clear intention was to distribute the cost of road construction and repair equitably among those persons using the privilege of driving motor vehicles upon such highways. We do not find it to be the intention of the General Assembly to tax the use of fuel suitable for driving or propulsion when such fuel instead of being used for such purpose is used for furnishing power for operating machinery used in repairing and maintaining the highways. It is the use to be made of the fuel that determines taxability. This is clear from an examination of the statutes levying the tax.

Section 5527, General Code, provides in part: 'For the purpose of providing revenue for maintaining the state highway system of this state for widening existing surfaces on such highways, for resurfacing such highways, for enabling the several counties of the state to properly maintain and repair their roads and for enabling the...

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