On June 9, 1955, S. B. Leveridge, the holder of a valid used car dealer’s license, made application to the Tax Commission for an original certificate of title for a 1955 model Ford vehicle, which was the latest manufactured model. He presented as evidence of his ownership an assigned *810 Missouri title showing that the vehicle had been originally registered in Missouri May 9, 1955, by an individual, which individual on May 10, 1955, assigned the Missouri title to a corporation, which corporation on June 2, 1955, reassigned the title to Leveridge. Leveridge acquired the vehicle for the purpose of offering same for sale in Oklahoma as a used car dealer. The Tax Commission took the position that under House Bill 885 of the Twenty-Fifth Legislative Session, S.L.1955, pp. 262, 263, 47 O.S.Supp. §§ 52c, 52d, the excise tax levied under Title 47 O.S.1951 § 52b, was due and owing upon the vehicle being registered and demanded payment of said tax as a condition to registering the vehicle. Leveridge’s position was and is that House Bill 885, supra, is a revenue raising measure and as such is unconstitutional under the provisions of Art. 5, § 33 of the Oklahoma Constitution, because the bill was passed during the last five days of the Twenty-Fifth Legislative Session. He, therefore, paid the demanded tax under protest, filed a claim for refund, and following the Tax Commission’s denial of his claim, perfected this appeal.
The above referred to constitutional provision reads as follows:
“All bills for raising revenue shall originate in the House of Representatives. The Senate may propose amendments to revenue bills. No revenue bill shall be passed during the last five days of the session.”
This is the third time within the last three years that this court has had under consideration the effect of the exemption provided in Title 47, § 52d (e), O.S.1951, which section, together with Section 52c, was amended by House Bill 885, supra. The first case was the Protest of Green-Phillips Chevrolet Co.,
“Therefore, the situation, as here, involving a used car purchased for resale by a bona fide used car dealer was not before the court. * * * Since, under the decision in the Green-Phillips Chevrolet Co. case, supra, a new automobile is not within the contemplation of subsec. (e) of section 52d, supra, for which ‘an original * *, * certificate of title’ is sought, said last quoted phrase would apply only where the ‘vehicle’ was a used car, registered in another state upon which an Oklahoma certificate of title was being issued for the first time.”
At the hearing before the Commission, the Commission offered a witness who testified in substance over Leveridge’s objection that after the Kendall case was handed down a great many vehicles owned by used car dealers, which under the Kendall case would be considered as new and therefore subject to the excise tax levy upon being registered by said used car dealers for the first time in Oklahoma, were titled or registered through use of the mail or otherwise in states where the title or registration fees are nominal. That such was done irrespective of the fact that none of said vehicles had been in, and none of the owners thereof resided in the states in which the vehicles were registered or titled. The Tax Commission contends that House Bill 885 does not represent a revenue raising measure because it does not levy a tax in the strict sense of the word.
*811 The provisions of House Bill 885, Title 47, § 52c, as amended, provide that, notwithstanding the statutory definition of the term “new vehicle” and “used vehicle” in another Act, the term “new vehicle” as used in said (amended) Sec. 52c should also include any vehicle of the “latest manufactured model” owned or acquired by a licensed used car dealer, where such vehicle had not been registered in Oklahoma and an Oklahoma motor vehicle excise tax had not been paid.
By a 1949 Act amending Title 47, § 22.1, the legislature created and defined the term “new vehicle” in such a manner as to make it impossible for any one except a person holding a contract or franchise with the manufacturer of a particular make of vehicle to own a “new vehicle” of such make. A used car dealer therefore could not after 1949, and prior to the enactment of House Bill 885 in 1955, own a “new vehicle” within the purview of the Motor Vehicle Excise Tax Act, and for said reason, the value of any vehicle that he might own during said period for excise tax purposes could not exceed 65% of the factory delivered price thereof. After the enactment of said House Bill, a used car dealer could own a “new' vehicle” for the purposes of the Motor Vehicle Excise Tax Act and could therefore be subjected to motor vehicle excise tax on the basis of 100% of the factory delivered price of the vehicle if the vehicle was the “latest manufactured model” and had not previously been registered in Oklahoma.
The other change in the law effected by House Bill 885 was to amend" Title 47, § 52d on Exemptions (e), so as to specifically provide that a used car dealer was not exempt from motor vehicle excise tax upon registering a motor vehicle of the “latest manufactured model” for the first time in Oklahoma, even though the vehicle had theretofore been registered in some other state. The Tax Commission contends that in view of the Kendall opinion, the only additional revenue that could result from the amendment to Section 52d (e) would be where a new vehicle which is the “latest manufactured model” has been regularly registered in some other state and there used, and following such use is sold to an Oklahoma used car dealer who registers the same in Oklahoma.
In Anderson v. Ritterbusch,
As reflected by 51 Am.Jur.,Taxation, Sec. 298, p. 350, 84 C.J.S.,Taxation, § lj p. 31, the law above quoted represents the general rule and a rule that this court has 'consistently adhered to.
In passing upon the constitutionality of an act of the legislature, this court is guided by the rule that all acts of the legislature must be presumed to be constitutional, which presumption must be overcome beyond all doubt by the person asserting the unconstitutionality of the Act. 11 Am. Jur.,Constitutional Law, Secs. 128 and 132; City of Denver v. Knowles,
“ * * * A fundamental principle of construction requires those who seek to overthrow a statute, on account of its repugnance to a constitutional provision, to show the unconstitutionality of the act beyond all reasonable doubt. * * * ”
In Fletcher v. Peck,
“The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. * * * ”
The bill under consideration does not within its four corners levy a tax and for said reason is not per se a revenue bill.
*812
Moreover, and at most, sections of Title 47 O.S.1951, as amended, contained in H. B. 885, supra, merely declare that certain property (automobiles of the latest manufactured models owned by used car dealers) theretofore exempt from taxation (the motor vehicle excise tax) shall thereafter be subject to taxation. Such amendments do not constitute a revenue bill. Therefore, H. B. 885, is not unconstitutional because passed during the last five days of the Twenty-Fifth Legislative Session. See Cornelius v. State ex rel. Cruce,
The action of the Tax Commission in denying Leveridge’s claim for refund is therefore affirmed.