42 A.2d 149 | Conn. | 1945
This action, one of a large number of similar suits, was brought by the treasurer of the state of Connecticut to recover taxes which the state claims to be due from the defendant, a distributor of gasoline, under statutes imposing a tax upon gasoline and other fuels. Each year, for a number of years, the defendant had made to the motor vehicle commissioner, as required by the statutes, monthly reports upon forms prescribed by him, upon the basis of which the amount of tax it was required to pay was to be computed. These forms varied from year to year, *710 but the one of which a copy is given in the footnote1 is sufficiently typical to serve the purposes of this opinion. *711 The first part of each report consisted of a statement of all gasoline sold, used or transferred by the defendant. The second part stated the amount of gasoline on hand at the beginning of the month, the amount received during the month, and the amount on hand at its end; in this way the amount to be accounted for was determined; the number of gallons which had been covered by the first part of the report were then deducted; and this left a balance, which was entered merely as "Difference." The third part was a summary of items taken from the first part as the basis upon which tax was to be computed, with a deduction of 1 per cent as "distributors allowance." Each month the commissioner of motor vehicles certified to the state treasurer the amount of tax due from the defendant in accordance with the summary in the third part of the report, upon forms of which a copy is given in the footnote,2 and the defendant, upon demand *712 of the treasurer, paid the amount so certified. In determining the amount of taxes certified to be due, no account was taken of the gasoline appearing in the report under the item "Difference." This action was brought to recover an additional amount of taxes based upon this "Difference." The case was referred to a referee, who found the facts and concluded that a very considerable sum was due the plaintiff from the defendant; his report was accepted by the court, with a few corrections; and judgment was rendered for the plaintiff. Both parties have appealed.
The tax in question was first imposed by an act passed in 1921. Public Acts, 1921, Chap. 300. In 1933, two acts with reference to the tax were passed. One amended the law in several respects; Public Acts, 1933, Chap. 303; in 5 it required that each distributor should report the number of gallons of fuels which he "sold or used in this state," upon forms to be furnished by the commissioner of motor vehicles which were to contain such further information as he might prescribe; and the tax was to be paid "to the state treasurer for the account of the purchaser or consumer" upon each gallon of fuels "sold or used in the state . . . except such fuels as may have been sold to the United States government, or sold by one licensed distributor to another licensed distributor, or transferred from storage within this state to some point outside of this state, for sale or use outside of this state." The other act passed in 1933 provided: "Each distributor may retain one per cent of the tax on gasoline required under the provisions of [the statute in question] to cover the expense of collection of said tax and loss by reason of shrinkage." Public Acts, 1933, Chap. 267. In preparing the Supplement to the General Statutes for 1933, the statute revision commissioner combined the provisions of 5 of Chapter 303 *713 and Chapter 267 into a single section. General Statutes, Sup. 1933, 466b. Section 15 of Chapter 228 of the Public Acts of 1935, as printed among the bills engrossed and signed by the governor, reads: "Section 466b of the 1933 supplement to the general statutes is amended to read as follows." Then appears an exact quotation of the language of 466b except that the tax was increased from two to three cents and except for the omission of the words: "Such distributor may retain one per cent of the amount of such tax to cover the expense of collection thereof and loss by reason of shrinkage." Nevertheless, in the Cumulative Supplement to the General Statutes for 1935, that provision appears as a separate section. General Statutes, Cum. Sup. 1935, 655c.
When we came to study the case before us, we were unable to consider it from the standpoint upon which it was, to a great extent, presented to us at the argument, because throughout the proceedings in the trial court and before us all parties had assumed that 655c was a part of the statute law of this state, and the conclusions reached by the referee and the trial court depended to a considerable extent upon the effect to be attributed to it. Although no question was raised in the proceedings below as to the validity of 655c, we could not overlook the statutory situation. Adley Express Co., Inc. v. Darien,
The powers of the statute revision commissioner are stated in 2221 of the General Statutes and 877c of the Cumulative Supplement of 1935. He has no power to continue as law a statute which the legislature has repealed; nor are the supplements he prepares ever *714
submitted to the legislature for its approval, as are revisions of the General Statutes. General Statutes, p. 2009. Section 466b of the Supplement of 1933 had of itself no force as law except as it correctly embodied provisions enacted by the General Assembly. When, in 1935, the Assembly proceeded to pass the act expressly amending 466b, the terms of the section as printed in the supplement were adopted by it as its own; and when it re-enacted that section with the omission of the provision authorizing distributors to retain 1 per cent of the tax it repealed that provision. Aston Motor Car Co. v. Mannion,
As the act imposing the tax stood in 1935, and as it still stands except for some minor changes not material to the issues before us, it may be summarized as follows: The word "Fuels" is in general defined, by reference to the definition given in the act generally regulating motor vehicles, to mean "gasoline, benzol or other products, to be used in the propelling of motor vehicles using combustible type engines over the highways of this state, and gasoline that is sold or used for any purpose within this state," except such as is sold to the United States government or is transferred from storage within this state to some point outside the state, for sale or use there. General Statutes, Cum. Sup. 1935, 644c, 539c. Any person selling or offering for sale "any gasoline or other product intended for use in the propelling of motor vehicles using combustible type engines over the highways of this state" *715 is required to obtain a license from the commissioner of motor vehicles. 645c. Each distributor must keep an accurate record of the number of gallons of fuels purchased, manufactured, compounded or received by him, and the number of gallons "sold or used by him"; and each distributor must "satisfactorily account for all such fuels as have been sold or used by him." 653c. Each distributor is required to make a monthly report to the commissioner stating the number of gallons of fuels "sold or used in this state" by him during the preceding month, on forms to be furnished by the commissioner which are to contain such further information as he shall prescribe; the distributor is required to pay each month to the state treasurer "for the account of the purchaser or consumer" a tax of three cents on each gallon of "fuels sold or used" in this state during the preceding month, except fuels sold to the United States government, or by one licensed distributor to another, or transferred to some point outside the state to be sold or used there; and the commissioner is required to transmit monthly to the state treasurer such information "as shall show all taxes due from each distributor." 654c. Any person who shall buy fuels and shall use them "for purposes other than in the propelling of motor vehicles using combustible type engines" over highways is entitled to a refund of the amount of the tax paid on such fuels. 666c. All moneys received by the treasurer as taxes under the act, except refunds he has made, are required to be expended for the construction, maintenance or reconstruction of state highways. 658c.
There can be no question under these provisions that the basis upon which the tax is laid is gasoline or other fuels sold or used for propelling motor vehicles over the highways. Moreover, while the distributor is not required to collect from the purchaser the *716
amount of tax levied on gasoline the latter buys, the tax is, by the express terms of the act, paid "for the account of the purchaser or consumer"; it is the purchaser who is entitled to a refund if the gasoline is not used for propelling motor vehicles over the highways; and there can be no doubt that the intent of the legislature was to impose an excise tax upon persons using the highways for the purpose of propelling motor vehicles upon them. Spencer v. Consumers Oil Co.,
The decision in Monamotor Oil Co. v. Johnson,
Under our statute, the ultimate measure of the tax is the amount of gasoline used for the propulsion of motor vehicles upon our highways. Gasoline coming into the possession of distributors and not sold or used for that purpose is not within the intended scope of the tax. Consequently, gasoline lost by shrinkage in the amount imported or received by them by evaporation, temperature changes or like causes, or gasoline which escaped while being handled, is not taxable. In so far as Chapter 267 of the Public Acts of 1933 provided that a distributor might retain a percentage of the amount of the tax for its collection, it was in harmony with the basis upon which the tax is imposed; but in so far as it purported to permit a deduction on account of "shrinkage," it introduced into the law an alien element. The legislature did not intend to impose an excise tax upon the distributors based upon the right and power to sell or otherwise dispose of gasoline, measured by the amount of gasoline coming into their possession. See Nashville, C. St. L. Ry. v. Wallace,
Any discussion of the claims of error as to matters in the determination of which 655c was involved would be academic as far as the decision of this case is concerned, and it is the established policy of this court not to decide issues of that nature. State ex rel. Foote v. Bartholomew,
There is error upon both appeals, the judgment is set aside and the case is remanded to be proceeded with according to law.
In this opinion the other judges concurred.