State v. Blair

• Citation: 191 So. 237,238 Ala. 377
• Decision Date: 15 June 1939
• Docket Number: 3 Div. 298.
• Parties: STATE v. BLAIR.
• Court: Supreme Court of Alabama

191 So. 237

238 Ala. 377

STATE v. BLAIR.

3 Div. 298.

Supreme Court of Alabama

June 15, 1939

Rehearing Denied Oct. 12, 1939.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action by the State of Alabama against Algernon Blair to recover tax on gasoline. From a judgment for defendant, plaintiff appeals.

Affirmed.

Thos S. Lawson, Atty. Gen., and Wm. H. Loeb and John W. Lapsley Asst. Attys. Gen., for the State.

Ball & Ball, of Montgomery, for appellee.

GARDNER Justice.

By virtue of the provisions of the General Acts 1923, page 36, General Acts 1927, pages 16 and 326, General Acts 1931, page 859, General Acts 1932, Ex.Sess., page 314, all as amended, there is levied what is known as an excise tax (City of Birmingham v. State, 233 Ala. 138, 170 So. 64), aggregating six cents per gallon on the storage or withdrawal from storage of gasoline in Alabama, and reports are required as to the amounts so stored or withdrawn.

The State insists that defendant Blair stored and withdrew from storage a large gallonage of gasoline without making the report and without payment of the excise tax, and instituted this suit for the recovery thereof. The trial was upon an agreed statement of facts resulting in a judgment in favor of defendant, from which the State prosecutes this appeal.

The territory known as "Maxwell Field" in the city of Montgomery is a military reservation of the United States Government, which was, for such purpose, acquired in the year 1920 by purchase by the United States.

The first gasoline tax statute, which forms the basis of this suit, was enacted in 1923.

In 1932 defendant entered into a written contract with the United States Government for the grading of the landing field of this military reservation. And in November, 1932, and January, 1933, Blair received on this reservation the gasoline on which this tax is claimed, the shipment being made from the state of Texas direct to "Maxwell Field." That the gasoline thus shipped to Blair moved in interstate commerce from Texas to this reservation is clear enough and not controverted, nor is it insisted that it was subject to the tax while en route from Texas to its destination at the reservation.

The State contends, however, that the storage and withdrawal from storage of the gasoline by Blair rendered him subject to the tax, notwithstanding the fact that it remained all the while on this reservation, where it was withdrawn and used in furtherance of the work undertaken by the contract.

But we think otherwise. The Constitution of the United States in Article 1, section 8, clause 17, U.S.C.A., makes provision for the exercise by Congress of exclusive legislation over all places purchased by consent of the legislature of the state in which the same shall be, "for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." "Exclusive legislation" is consistent only with exclusive jurisdiction. James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155, 114 A.L.R. 318.

The mere ownership and use of the lands by the United States do not withdraw them from the jurisdiction of the state. But the above noted constitutional provision becomes applicable when the United States acquires the land with the consent of the state for the purpose there described. James v. Dravo Contracting Co., supra.

Here, it appears the United States purchased the land for the purpose set forth in the Federal Constitution. Was it thus acquired with the consent of the State? At the time of the purchase sections 898 and 899, Code of 1907, were in full force and effect. They were but codifications of the Act of 1903 (General Acts 1903, page 43). By these statutes the State ceded to the United States jurisdiction "over all lands which have been or may hereafter be purchased" for the purposes enumerated above, and expressly provided that jurisdiction should be exclusive for all purposes except for the service of process issued out of the courts of the State. This exception was the sole qualification annexed to the cession, and by the terms of this statute jurisdiction was ceded unreservedly to the federal government. And, in the absence of any contrary intent, acceptance of this exclusive jurisdiction, is, under all the authorities, to be presumed. Pound v. Gaulding, Ala.Sup., 187 So. 468. The lands here involved were purchased by the United States after the passage of the Act of 1903, and while these sections constituted a part of the Code of 1907, now sections 1505, 1506, Code of 1923.

The argument of the State that these Code provisions are referable only to past transactions is refuted by the very language of the statute, and ignores and treats as surplusage the words "or may hereafter be purchased." But these words are not to be ignored. They should be given their proper meaning and accorded the result they so plainly indicate. So interpreted, the statute coincides with much precision with the facts of this case, and discloses exclusive jurisdiction over this territory in the United States Government.

So considered, the cases of Standard Oil Co. v. California, 291 U.S. 242, 54 S.Ct. 381, 78 L.Ed. 775, and Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091, are here in point, and fully support the theory of non-liability of defendant for this tax. The holding of the court in each case is well and succinctly stated in the headnote. In Standard Oil Co. v. California, supra, the ruling is stated in the following manner: "A State is without power to levy a license tax in respect of the selling and delivery of goods on a military reservation included within the exterior limits of the State but over which the full legislative authority has been ceded to the United States by an Act of the State Legislature."

And that of Surplus Trading Co. v. Cook, supra, reads: "Under Art. I, § 8, cl. 17, of the Constitution, land purchased by the United States for an Army station, with the consent of the legislature of the State in which it lies, comes under the exclusive jurisdiction of the United States, and private personal property there situate can not be taxed by the State."

Thus far, therefore, the case for the defendant is clear enough. But, as we understand the argument, the State contends the law, as above stated, has been modified, if not in fact overturned, by the decisions in the more recent cases of James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155, 114 A.L.R. 318, Silas Mason Co. v. Tax Commission, 302 U.S. 186, 58 S.Ct. 233, 82 L.Ed. 187, and Atkinson v. Tax Commission of Oregon, 303 U.S. 20, 58 S.Ct. 419, 82 L.Ed. 621.

But, as said by the Supreme Court of the United States in Osaka Shosen Kaisha Line v. United States, 300 U.S. 98, 57 S.Ct. 356, 358, 81 L.Ed. 532 (noted by this Court in State ex rel. Wilkinson v. Murphy, Ala.Sup., 186 So. 487), "it is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used." And when the cases are reviewed in the light of the facts and of the questions presented for determination, we think it clear they contain no indication of any reflection upon the integrity of the decision in Surplus Trading Co. v. Cook, and Standard Oil Co. v. California, supra, or the soundness of the principle of law therein announced. Illustrative is the opinion in Dravo case, supra, wherein as to the beds of rivers involved, it was pointed out that the title thereto was in the state, and as to other lands the cession by the state was of "concurrent jurisdiction," in section 3 of the act and in section 4 a reservation of the right to execute process "and such other jurisdiction and authority over the same as is not inconsistent with the jurisdiction ceded to the United States by virtue of such acquisition." Code W.Va. 1931, 1-1-3, 1-1-4.

Reservations as to process, it is observed, were found to be frequent in grants made by the states to the United States in order to avoid the granted places being made a sanctuary for fugitives from justice.

The reservation for process is the only qualification found in our Act of 1903, and is, as stated in the Dravo case, supra [302 U.S. 134, 58 S.Ct. 215], in no manner "incompatible with a cession of exclusive jurisdiction to the United States."

The real contention in the Dravo case, supra, however, related to the claimed inoperative effect of a reservation by the state in ceding jurisdiction to the federal government.

There were general expressions in some of the decided cases ( United States v. Cornell, Fed. Cas. No. 14,867, 2 Mason 60, 65, 66, Fort Leavenworth R. Co. v. Lowe, 114 U.S. 527, 5 S.Ct. 995, 29 L.Ed. 264, and others) to the effect that in ceding by the state jurisdiction to the United States over land acquired by purchase, the state was without power to make reservation beyond that for service of process, by reason of provisions of Article 1, section 8, clause 17 of the Federal Constitution. These expressions, designated obiter dicta, were disapproved, and the holding was that the state "may qualify its cession by reservations not inconsistent with the governmental uses." This is now the acknowledged rule.

And the question here presented is whether or not there were reservations in the cession by the State.

The cases of Surplus Trading Co. v. Cook, and Standard Oil Co. v California, supra, did not involve any matter of reservation, and no expression therefore in these authorities called for any qualification. They were unaffected by the decision in the Dravo case, supra, but, on the contrary, we think their soundness was fully recognized in the opinion. The Surplus Trading Co. case, supra, dealt with...