160 So. 290 | La. | 1935
Lead Opinion
The state of Louisiana, through the Supervisor of Public Accounts, has brought the present suit to recover a tax of 4 cents per gallon, under the provisions of Act No. 6 of the Extra Session of the Legislature of 1928, as amended by Act No. 16 of 1932, on 1,188,078 gallons of "motor fuel," and 1/32 of 1 cent per gallon under Act No. 14 of 1932 as an inspection fee, with a penalty of 20 per cent. for delinquency in the payment of the tax and inspection fee, and 10 per cent. additional on the amount of the tax, inspection fee and penalty, as attorney's fees.
The state alleges that defendant corporation is a "dealer" as defined by Act No. 6 of the Extra Session of 1928, as amended, in "motor fuels" in the state of Louisiana, and that defendant corporation, between August 1, 1932, and February 23, 1934, did manufacture, blend or compound, and sell in the state of Louisiana 1,188,078 gallons of "motor fuel," as defined by Act No. 6 of the Extra Session of 1928, as amended; said motor fuel being a petroleum product and being a volatile gas-generating liquid having a flash point below 110 degrees Fahrenheit.
Defendant corporation filed a plea of unconstitutionality of Act No. 16 of 1932 upon the ground: "That the products upon which a tax was imposed by the provisions of Act No. 6 of 1928 [Ex. Sess.] were expressly restricted to those `commonly used to propel motor vehicles or motors'; that in so far as Act No. 16 of 1932 styled merely: `An Act to amend and re-enact Section 1 of Act No. 6 of *662 1928,' purports to remove such restriction and include in the products to be taxed products other than those taxed under the original statute, contains new substantive matter for legislation and said amendatory act consequently is broader than its title, containing matters therein not expressed in such title, contrary to the provisions of section 16 of article 3 of the Constitution of 1921."
From the judgment sustaining the plea of unconstitutionality, and dismissing the suit, plaintiff has appealed.
The question to be decided by the court, and the only question, is:
Does Act No. 16 of the Regular Session of the Louisiana Legislature for the year 1932 comply with the requirements of section 16 of article 3 of the Constitution of 1921, which provides: "Every law enacted by the Legislature shall embrace but one object, and shall have a title indicative of such object"? (Italics ours.)
Act No. 16 of 1932 is entitled: "An Act To amend and re-enact Section 1 of Act No. 6 of 1928, approved December 18, 1928, as amended by Act No. 8 of 1930, entitled: `An Act to provide revenues for the public highways of the State of Louisiana bylevying a tax of four cents per gallon on all gasoline or motor fuel sold, used or consumed in the State of Louisiana for domestic consumption, as authorized by paragraph A, Section 22, Article VI, of the Constitution of Louisiana, of 1921, as amended, defining motor fuel. * * *'" (Italics ours.)
It is difficult to imagine in what way Act No. 16 of 1932 can be broader than its title, when the object of the act, as stated in its title, is to levy a tax of 4 cents per gallon *663 "on all gasoline or motor fuel sold, used or consumed in the State of Louisiana for domestic consumption"; "defining motorfuel," etc. (Italics ours.)
Section 1 of the act levies a tax of 4 cents per gallon "on allgasoline, or motor fuel, sold, used or consumed in the State of Louisiana for domestic consumption," and defines "motor fuel" as meaning "all volatile gas-generating liquids having a flash point below 110 degrees F."
Act No. 16 of 1932 is "An Act To amend and re-enact Section 1 of Act No. 6 of 1928, approved December 18, 1928, as amended by Act No. 8 of 1930," and sets forth in its title in full the title of the act to be amended and re-enacted.
It is manifest therefore that, under the title of the original act (Act No. 6 of 1928, Ex. Sess.), the term "motor fuel" could have been defined as meaning "all volatile gas-generating liquids having a flash point below 110 degrees F.," instead of restricting the definition, by adding "commonly used to propel motor vehicles or motors."
It was held in the Cedar Grove Refining Co. Case,
"On the merits, the only question is whether the expression `as defined by law,' in section 22 of article 6 of the Constitution, as amended pursuant to Act No. 219 of 1928, means `as already defined by law,' or leaves the Legislature free to change the definition of `motor fuels.' * * *
"Manifestly, the very purpose of the expression `as defined by law' was to leave it to the Legislature to define motor fuel, and *664 to change the definition as the Legislature might see fit tochange it, within reasonable bounds. It is to be observed that the constitutional amendment declares also that the tax is `to be collected as prescribed by law.' It is certain that the Legislature is thereby directed to prescribe the method of procedure, and not forbidden to depart from the method already prescribed. And so is the Legislature directed, and not forbidden, to define motor fuel.
"The argument that this interpretation of the act of 1932 makesthe text broader than the title is founded upon the fact that the title refers to levying the tax `on all gasoline or motor fuel,' etc. It is contended that a volatile gas-generating liquid havinga flash point below 110 degrees F. is not a motor fuel unless it is`commonly used to propel motor vehicles or motors.' But that is a begging of the question, because the definition itself declares that the term `motor fuel' means all volatile gas-generating liquids having a flash point below 110 degrees F. That definitiondoes not go beyond the indication, in the title of the act, thatit is an act to levy a tax upon `motor fuel.'" (Italics ours.)
Although the case of State v. Louisiana Coca-Cola Bottling Co.,
"This brief on rehearing is directed most strenuously to the argument that Act No. 16 *665 of 1932 is manifestly unconstitutional for the reason that thetext is broader than the title of the Act. (Italics ours.)
"We had placed so much confidence in the argument which we presented to the Lower Court and which was sustained by it until we laid very little stress upon this phase of the case.
"However, an examination of the authorities in this State showsthat it is the settled jurisprudence of this State that theLegislature cannot make a radical change in the definition of anArticle without clearly evidencing this intention in the title ofthe Act. (Italics in brief.)
"As we said in our original brief, Act No. 16 of 1932 at no place in its title evidences any intimation that the Act intendsto interpret in a different manner and in such a way as toinclude products which have never before been recognized in thisState as motor fuel. If the Legislature intended to make such aradical change in its legislative jurisprudence it was obligatedto evidence this intention in the title of the Act.
"Your Honors, in answering this contention stated, `thedefinition does not go beyond the indication in the title of theAct, that it is an Act to levy a tax upon "motor fuel,"'" quoting the language of the opinion in the Cedar Grove Refining Co. Case.
"We submit that the case of the Stale v. Louisiana Coca-ColaBottling Co.,
"The above case reviews the jurisprudence on the identical question here involved and shows it to be conclusively in our favor on the contention which we make.
"We most earnestly submit the above case to the considerationof this Court as well as the other cases which we cite and which cover the exact point. In our previous brief these cases were not called to the Court's attention and in the opinion of the Court your Honors did not consider them.
"May we quote the language which to us seems most pertinent to the issues here involved. In discussing the Coca-Cola BottlingCo. Case the Court stated, at page 174 of 169 La.,
"`Such persons, prior to the passage of the amendatory act were not considered peddlers, and were not liable for license as such. They were liable only under section 7 of the act, relative to wholesale dealers, or under section 25, relative to those following occupations, not provided elsewhere, and likely the latter. The matter that was to be incorporated in section 18, being, as to that section, new matter, relating to a class, not included in the section, but which was beyond the scope of the section, the mere intention to amend sections 18 and 25 did not suffice.'
"The Court then proceeded to hold the Act unconstitutional because it enlarged the definition of the term `peddler,' without evidencing this intention in the title." Original Brief of Defendant-Appellee on Application for Rehearing, pp. 2, 3, and 4.
The decision in State v. Cedar Grove Refining Co.,
Justice Overton, the organ of the court in the Coca-Cola Bottling Co. Case, did not dissent on the ground that the Cedar Grove Refining Co. Case was contrary to the decision in the Coca-Cola Bottling Co. Case, but signed the opinion written by the Chief Justice in the Cedar Grove Refining Co. Case, as did all of the other justices of this court, thereby making the opinion in that case unanimous.
The reason that there were no dissents from the decision in the Cedar Grove Refining Co. Case is that the Coca-Cola Bottling Co. Case is not in point, and can be readily differentiated from the Cedar Grove Refining Co. Case. And for the same reason, it was not considered necessary to mention the Coca-Cola Bottling Co. Case in the opinion written in the Cedar Grove Refining Co. Case.
The able trial judge, who overruled the decision of this court in the Cedar Grove Refining Co. Case on the sole authority of the Coca-Cola Bottling Co. Case, was not aware, at the time, that that case had been presented to the consideration of this court on application for rehearing in the Cedar Grove Refining Co. Case, and had been found inapplicable and inappropriate.
As stated by the trial judge in his written opinion: "The point made by the defense in this case is that the title to the amending Act must give notice of the change to be made when that change amounts to substantive legislation." As shown by the brief oil rehearing in the Cedar Grove Refining Co. Case, the identical point was made in that case that is now made in this case, and was decided adversely to the contention of the Cedar Grove *668 Refining Company; the constitutionality of Act No. 16 of 1932 having been maintained.
Act No. 16 of 1932 proposes to amend and re-enact section 1 of Act No. 6 of 1928 (Ex. Sess.), as amended, entitled: "An Act To provide revenues for the public highways of the State of Louisiana by levying a tax of four cents per gallon on all gasoline or motor fuel sold, used or consumed in the State of Louisiana for domestic consumption, as authorized by paragraph A, Section 22, Article VI, of the Constitution of Louisiana, of 1921, as amended, defining motor fuel," etc. (Italics ours.)
It cannot be disputed successfully that Act No. 6 of 1928 (Ex. Sess.), the act amended and re-enacted by Act No. 16 of 1932, is an act to levy a tax on all "motor fuel." Nor can it be denied that the title of this act contains the words "defining motor fuel," thereby clearly indicating the object of the act in its title.
Section 1 of Act No. 6 of 1928 (Ex. Sess.) reads as follows:
"Section 1. Be it enacted by the Legislature of Louisiana, That there is hereby levied a tax of four cents (4¢) per gallon on all gasoline, or motor fuel, sold, used or consumed in the State of Louisiana for domestic consumption, to be collected as hereinafter set forth.
"The term `motor fuel' is defined as meaning all volatile gas-generating liquids having a flash point below 110 degrees F.,commonly used to propel motor vehicles or motors." (Italics ours.)
Act No. 16 of 1932, after setting forth the title of Act No. 6 of 1928 in full, is an act to amend and re-enact section 1 of Act No. 6 of 1928. *669
Section 1 of Act No. 16 of 1932, the amending act, reads as follows:
"Section 1. Be it enacted by the Legislature of Louisiana, That there is hereby levied a tax of four cents (4¢) per gallon on all gasoline, or motor fuel, sold, used or consumed in the State of Louisiana for domestic consumption, to be collected as hereinafter set forth.
"The term `motor fuel' is defined as meaning all volatile gas-generating liquids having a flash point below 110 degrees F." (Italics ours.)
Act No. 16 of 1932, the amendatory act, merely eliminated the qualifying phrase, "commonly used to propel motor vehicles or motors," contained in section 1 of Act No. 6 of 1928 (Ex. Sess.), the act amended.
The Constitution of the state authorized and directed the Legislature to define "motor fuel," as used in the act, and this court has recognized this right in the Cedar Grove Refining Co. Case, above cited.
Section 1 of the original act, and section 1 of the original act, as amended, are identical, with the exception that the qualifying phrase in the definition of "motor fuel" was omitted in the amendatory act.
By no stretch of the imagination can we see wherein these two acts are not germane.
Both of these acts relate to the same subject-matter and same object. Both definitions include "all volatile gas-generating liquids having a flash point below 110 degrees F."
Under the definition contained in the amendatory act, petroleum liquids that are capable of being used in a motor vehicle or *670 motor, and not necessarily "commonly used in motors or motor vehicles," are subject to the tax.
To illustrate: In the case of Cedar Grove Refining Co., cited supra, the state was allowed to recover under Act No. 16 of 1932, amending Act No. 6 of 1928 (Ex. Sess.), a tax on "tractor distillate." This is a motor fuel not commonly used in motors and motor vehicles, but is capable of use in tractors.
Certainly, the amended definition bears a close relationship to the original definition, is related thereto, and is not foreign to it; and, necessarily, the amendatory act is germane to section1 of the original act.
"While it is true that new legislation upon a distinct anddifferent subject matter cannot be incorporated into an existing statute by way of amendment, without mention being made of its object in the title, it is equally true that any subject matterthat is germane to the original text may be thus incorporated without being open to objection." Williams v. Western Star Lodge, 38 La. Ann. 620, 626. (Italics ours.)
"It is true that it had been often held that the title of a statute amending and re-enacting a certain article of the Codes, or a certain section of the Revised Statutes, sufficiently expresses the legislative intention. But such amendment should be limited in its scope to the subject-matter of the section proposed to be amended. `In such case the introduction of any new substantive matter not germane or pertinent to that contained in the original sections cannot be regarded as an amendment thereto, but must be regarded as independent legislation upon a matter not expressed in the title of the act, and therefore void. The *671 amendment of an act in general, or a particular section of anact, ex vi termini implies merely a change of its provisions uponthe same subject to which the act or section relates.' State v. [American] Sugar Refining Co., 106 La. [553] 565, 31 So. 181." Beary v. Narrau,
The above authorities are cited in State v. Boylston,
Act No. 16 of 1932 is an act to amend a particular section (section 1) of Act No. 6 of 1928 (Ex. Sess.), and refers to Act No. 6 of 1928 (Ex. Sess.), the statute to be amended, by its title, and declares the object to be to amend and re-enact such section. There can be no question that the matter contained in Act No. 16 of 1932, the amending act, is germane to that contained in the other, Act No. 6 of 1928 (Ex. Sess.). Besides, the amendment of section 1 of Act No. 6 of 1928 (Ex. Sess.) by Act No. 16 of 1932 is the amendment of a particular section, and "ex vi termini implies merely a change of its provisions upon thesame subject to which the act or section relates." *672
As this court, in the Cedar Grove Refining Co. Case, has held that the Constitution has left to the Legislature to define motor fuel and to change the definition as the Legislature may see fit to change it, it is manifest that the definition of "motor fuel" as "all volatile gas-generating liquids having a flash point below 110 degrees F.," contained in section 1 of Act No. 16 of 1932, the amending act, could have been incorporated in the original Act No. 6 of 1928 (Ex. Sess.), § 1, as the title of that act is "An Act To provide revenues for the public highways of the State of Louisiana by levying a tax of four cents per gallon on all gasoline or motor fuel sold, used or consumed in the State of Louisiana for domestic consumption, as authorized by paragraph A, Section 22, Article VI, of the Constitution of Louisiana, of 1921, as amended, defining motor fuel. * * *" (Italics ours.)
In Southern Hide Co. v. Best,
In State v. Scallan,
"It is contended also that the title of the amending act should indicate the change that *673 is made in the provisions of the act. The title of the amending act merely declares that it is `An act to amend and re-enactsection 8 of Act No. 39 of 1921 [Ex. Sess.], entitled, "An act to prohibit the manufacture,"' etc. (reproducing verbatim the title of the original act).
"It is conceded that this title of the amending act would besufficient if the title of the original act would be anappropriate title for the act as amended. The title of theoriginal act is as appropriate for the amended act as it was forthe original act." (Italics ours.)
On application for rehearing, it is said:
"Per Curiam. We stated in the foregoing opinion in this case that it was conceded by the learned counsel for appellant that the title of the Act 57 of 1924, amending section 8 of the Act 39 of 1921, would be a sufficient title if the title of the originalact of 1921 would be an appropriate title for the act as amended. We were mistaken in our belief that the point was conceded. Theproposition itself, however, is correct, though not conceded.
"It is said, in appellant's petition for rehearing, that we did not decide the question whether it was necessary for the title ofan amending statute to indicate just what the amendment was thatwas made by the statute. Our answer is that it was not necessarythat the title of the amending act should specify what theamendment was. State v. Mayfield,
The rehearing was denied. *674
There can be no question in this case that the title of the original act, Act No. 6 of 1928 (Ex. Sess.), is as appropriate for the amended act, Act No. 16 of 1932, as it was for the original act, since it is a title to levy a tax "on all gasoline or motor fuel" and "defining motor fuel."
In Hyman v. State of Tennessee,
In Commonwealth of Virginia v. Brown,
It is readily observed that this case, decided by the Supreme Court of Virginia, and supported by abundant authority, is in thorough accord with the Scallan and other Louisiana cases cited supra, and when applied to the facts at bar, upholds the constitutionality of Act No. 16 of 1932.
The case of the State v. Louisiana Coca-Cola Bottling Co.,
In the Coca-Cola Bottling Co. Case, it was proposed to amend by section 2 of Act No. 299 of 1926, a general license law, sections18 and 25 of Act No. 205 of 1924, a general license law. *676
It is said by the court in that case, at pages 170, 171 of 169 La.,
The purpose of the amendment was to define the Coca-Cola Bottling Company "as a peddler" and to compel that company to pay "a peddler's license."
It is stated in the opinion, at pages 171, 172 of 169 La.,
"It would seem clear enough that, in passing the original act, Act No. 205 of 1924, the Legislature might, under the titlegiven to that act, and repeated in the amendatory act, havedefined the word `peddler' as it did in the latter act. However,that is not the question. In the original act the Legislature had levied, in section 18 thereof, the license against peddlers, without seeking to define what should constitute a peddler. Theword `peddler,' therefore, was to be accepted in its generallyaccepted sense. * * * *677
"Under the Act of 1924, one going from store to store, selling his goods, would not have been considered a peddler, for the simple reason that he would be one selling for resale and not atretail. Such person would have been liable, if not exempted,either under section 7 of that act for the license prescribed forwholesale dealers, or under the omnibus clause of section 25thereof, levying a license on all businesses, not otherwise provided for." (Italics ours.)
It is hornbook law in this state that an act to amend certain sections of a general law is limited in its scope to the subject-matter of the sections proposed to be amended, and that the General Assembly is not authorized, under a title to a law purporting to amend a particular section of another law, to alter the subject-matter of a different section to which no reference is made in the title. State v. American Sugar Refining Co.,
As stated in the Coca-Cola Bottling Co. Case,
It is also hornbook law in this state that: "The amendment of an act in general, or of a particular section of an act, ex vitermini implies merely a change of its provisions upon the samesubject to which the act or section relates." Dolese v. Pierce,
Such implication necessarily applies to the amendment of section 1 of Act No. 6 of 1928 (Ex. Sess.) by Act No. 16 of 1932, § 1.
In the Coca-Cola Bottling Co. Case, the section to be amendeddid not define "peddler."
In the Cedar Grove Refining Co. Case, section 1 of Act No. 6 of 1928 (Ex. Sess.) the act amended, did define "motor fuel." Act No. 16 of 1932, the amending act, merely changed that definition.
In the Coca-Cola Bottling Co. Case, the title of the amendatory act was defective, because it failed to set forth the new matter to be incorporated in section 18, as amended.
In the Cedar Grove Refining Co. Case it was held that the Act No. 16 of 1932, amending Act No. 6 of 1928 (Ex. Sess.), indicated its object in its title and that the body of the act was not broader than its title.
In the Coca-Cola Bottling Co. Case it was held that, although the Legislature under the title given the original act and repeated in the amendatory act, "might, * * * have defined the word `peddler' as it did in the latter act. However, that is notthe question." It follows, necessarily, that the Coca-Cola Bottling Co. Case is not an authority against the proposition, that the "title of the amending act would be sufficient if the title of the original act would be an appropriate title for the act as amended [and] that it was not necessary that the title of the amending act should specify what the amendment was." State v. Scallan,
We do not find anything in the Coca-Cola Bottling Co. Case contrary to the decision of this court in State v. Cedar Grove Refining Co., in which the constitutionality of Act No. 16 of 1932, § 1, amending section 1 of Act No. 6 of 1928 (Ex. Sess.), was ably and thoroughly considered and sustained.
2. The contention of defendant that Act No. 16 of 1932 is ineffective and unenforceable for the reason that the definition of the products sought to be taxed thereunder is too vague and indefinite to be capable of enforcement is, in our opinion, without merit.
"Motor fuel" is defined in section 1 of the act as meaning a "volatile gas-generating liquid having a flash point below 110 degrees F."
It is a matter of common knowledge that the gas-generating liquid defined is a petroleum product, and, as shown in State v. Armbruster,
As this case has not yet been tried upon the merits, this court is not in a position to determine whether any of the gas-generating liquids upon which the state claims a tax has a flash point above or below 110 degrees Fahrenheit, or whether the same are used or usable for "motor fuel."
For the reasons assigned, it is ordered that the judgment appealed from be annulled and reversed.
It is now ordered that this case be remanded to the court below, to be proceeded with in due course, and in accordance with the views herein expressed. *680
It is further ordered that defendant pay the cost of this appeal and that all other costs await the final judgment in the case.
O'NIELL, C.J., concurs in the decree and hands down reasons.
ROGERS and ODOM, JJ., dissenting.
Concurrence Opinion
My opinion is that, under the title of Act No. 16 of 1932, amending and re-enacting section 1 of Act No. 6 of 1928 (Ex. Sess.), the Legislature was at liberty to change the definition of "motor fuel," within reasonable bounds, as we said in State v. Cedar Grove Refining Co.,
My opinion is that Act No. 16 of 1932 is constitutional, as far as the title is concerned, but is not applicable to any substance that is not in fact motor fuel.
