State v. Silver Bow Refining Co.
| Decision Date | 22 December 1926 |
| Docket Number | 6046. |
| Citation | 252 P. 301,78 Mont. 1 |
| Parties | STATE v. SILVER BOW REFINING CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; W. E. Carroll, Judge.
Action by the State against the Silver Bow Refining Company. Order sustaining a demurrer to the complaint on which judgment was entered for defendant, and plaintiff appeals. Reversed and remanded, with directions.
L. A Foot, Atty. Gen., and A. H. Angstman, Asst. Atty. Gen., for the State.
Wheeler & Baldwin, of Butte, for respondent.
The state commenced action against the Silver Bow Refining Company for the recovery of amounts alleged to be due as delinquent license taxes for the second and third quarters of the year 1925. The defendant interposed a demurrer to the complaint filed, which is both general and special. This demurrer was sustained in its entirety, and, the state refusing to amend, judgment was entered in favor of defendant. From this judgment the state has appealed specifying error upon the action of the court in sustaining the demurrer and in entering judgment.
The complaint states two causes of action which are identical except as to the period covered; the demurrers to the two causes of action are likewise identical. It will therefore be necessary only to quote the material allegations of the first cause of action alleged, and what is hereafter said with regard thereto will apply equally to the second cause of action.
Paragraphs 1 and 2 of the first cause of action allege that the Silver Bow Refining Company is a corporation authorized to do business within this state, and engaged in the business of "manufacturing, refining, producing, and compounding gasoline and distillate, * * * and of selling and distributing the same within the state of Montana, * * *" and was so engaged during the quarter ending June 30 1925.
Paragraph 3 alleges that, during such quarter, and while so engaged in business, the defendant "refined, reduced, manufactured, produced, and compounded and sold gasoline and distillate in the state, or shipped, transported, or imported into and distributed or sold within this state, gasoline, and distillate exclusive of gasoline and distillate distributed by the defendant or sold by the defendant in original packages in which the same was shipped, transported, or imported, * * * amounting to a total of 132,694 gallons."
Paragraph 4 alleges that, for the period of more than 30 days after the expiration of said quarter, the defendant failed, neglected, and refused to make out and deliver to the state treasurer a duplicate statement, or any statement, showing the facts required by law to be so reported, and also failed and refused to pay the tax, or any part thereof, required by law to be paid.
Paragraph 5 alleges that, pursuant to the provisions of the law, immediately after the expiration of the said 30-day period, the state board of equalization proceeded to inform itself, as best it could, regarding the "matters and things required to be set forth in such statement," found and fixed the amount of gasoline and distillate sold, and fixed the tax due, and assessed a penalty of 5 per cent. for such failure and refusal, and made a statement thereof to the state treasurer, from which statement it appears "that the total number of gallons of gasoline and distillate refined, manufactured, produced, or compounded and sold within the state * * *" during said quarter and by the defendant, was 132,694 gallons, and the tax thereon, figured at 2 cents per gallon, was $2,657.88, and that no part thereof has been paid.
In support of the general demurrer, defendant contends that the complaint does not state facts sufficient to constitute a cause of action, for the reason that it is the duty of the pleader to set out facts showing a valid and existing right in the plaintiff and the infringement thereof by the defendant, and that such duty is not discharged here, for the reasons (1) that the purported statute on which the state bases its claim of right to collect from the defendant is an attempt to amend an unconstitutional and invalid enactment and is therefore of no force and effect; (2) that the subject of the bill constituting such enactment is not clearly expressed in the title, and therefore the amendatory act itself is unconstitutional; (3) that the amendatory act denies to the defendant the equal protection of the laws, and is therefore unconstitutional; (4) that the act is unconstitutional, in that it attempts to lay a tax for county purposes; and (5) that, even though the act may not be unconstitutional as a whole, it is unenforceable, for the reason that its main purpose violates constitutional provisions as above pointed out; (6) as to the special demurrer, it is contended that the complaint is uncertain, ambiguous, and unintelligible, in that it does not disclose what proportion of the products produced and sold was gasoline and what distillate, what proportion thereof was produced in the state and what imported, what proportion shipped into the state was sold in the original package, and that it cannot be ascertained therefrom what information was required by the state from the defendant or what the investigation of the state board disclosed.
Our "Gasoline Distributors' and Dealers' License Tax" Law was first enacted as chapter 156, Laws of 1921, and was incorporated in the Revised Codes of 1921 as chapter 185, pt. 3, of the Political Code, embracing sections 2381 to 2396. In 1923, sections 2382, 2383, and 2392 of said chapter were amended, and sections 2393 and 2394 were repealed (chapter 150, Laws of 1923), and in March, 1925, sections 2382, 2383, and 2392, as amended above, and the original sections 2384 and 2389 were amended. Chapter 186, Laws of 1925.
On April 4, 1925, this court held that the 1923 law was unconstitutional (State v. Sunburst Refining Co., 73 Mont. 68, 235 P. 428), and on June 26, 1926, likewise held the law of 1921 unconstitutional (State v. Sunburst Refining Co., 76 Mont. 472, 248 P. 186). In each instance the act under consideration was declared discriminatory and a denial of the equal protection of the laws.
1. The principal question involved herein is: Can the Legislature, by amending an unconstitutional measure, enact a valid law? Counsel for defendant contend that this cannot be done, and in support of their contention cite many authorities from other jurisdictions. Most of these decisions, however, are to the effect that a law which has been repealed cannot be amended, and furnish no assistance in determining the question before us.
We need no citation of outside authorities to sustain the declaration that a repealed law cannot be amended, as section 98, Revised Codes of 1921, declares that "an act amending a section of an act repealed is void," and, in conformity with this declaration of the Legislature, enactments falling within the condemnation of the above section have been declared void by this court. In re Naegele, 70 Mont. 129, 224 P. 269. The fundamental principle underlying the statute regarding repealed sections is that there is nothing to be amended; the enactment has been destroyed by the very power which created it; it is as though it had never existed, or, having once lived, its life has been ended in the most effectual manner. It cannot be amended, for, as Mr. Justice Galen said in the Naegele Case, "Life may not thus be breathed into a dead statute," or, adopting the simile used in State v. Long, 132 La. 170, 61 So. 154, "It is not possible to graft a live tree on a dead tree." A statute is the expression of the public will by the lawmaking power of the state (Ware v. Hylton, 3 Dall. 199, 1 L.Ed. 568); it is the crystallization of the intention of the Legislature, as to what shall be the rule, into a positive law, and the primary rule laid down for the construction of statutes is that the intention of the Legislature must, if possible, be ascertained and given effect. Carter v. Kall, 53 Mont. 162, 162 P. 385, 5 A. L. R. 1309; State ex rel. Goodman v. Stewart, 57 Mont. 144, 187 P. 641; Reeve v. City of Billings, 57 Mont. 552, 189 P. 768; Wibaux Imp. Co. v. Breitenfeldt, 67 Mont. 206, 215 P. 222. The intention of the Legislature as to the law is thus the very breath of life to the statute, and, when that body repeals a statute, it withdraws that with which it installed life into the enactment; but is the condition of a repealed statute analogous to that of one which, in spite of the intention of the Legislature, is found to be unconstitutional?
Had the Legislature intended that this latter class of enactments should fall within the same category as the former, it would seem that that body would have included, in section 98 above, acts amending unconstitutional enactments. As the Legislature did not see fit to do so, it must be assumed that that body intended to exclude, from the operation of the rule of procedure laid down, this class of amendments, under the rule of interpretation that "expressio unius est exclusio alterius." Can this intention be given effect?
Following the simile above adopted, in passing upon an amendment to an enactment lacking a proper title, a Pennsylvania jurist declared that, "if the main stock were alive and only the top were affected, this ingrafting process might give it new life," but that, when the death was at the root of the tree, nothing could be done for it. Teeple v. Wayne County, 23 Pa. Co. Ct. R. 361. However, where the lawmaking body has solemnly declared its intention as to what shall be the law upon a subject clearly within its constitutional power and authority, which enactment would have become valid except for some defect in the body of the act which could originally have been cured, the roots and...
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