123 P. 40 | Or. | 1912
delivered the opinion of the court.
The defendant has the right to invoke the guaranty of the Fourteenth Amendment. As has been stated on various occasions, this clause requires that no greater burdens shall be laid upon one than are laid upon others
The case at bar, therefore, depends upon the construction of the statute imposing the tax. It is conceded by both counsel that the term “oil company,” as used in Section 1 of the statute, plainly includes all individuals, joint-stock companies, partnerships, and corporations whatsover, whether resident or nonresident, of the State of Oregon. The question is: Does the interpretation clause in Section 4 exempt residents of the State of Oregon from the provisions of the act? Upon this question, the opinions of the learned counsel for the respective parties diverge. Counsel for defendant state that
In Jones v. Cook, L. R. 6 Q. B. 505, it was declared that petroleum should include all such rock oil, etc., as gave off an inflammable vapor at a temperature of less than 100 degrees Fahrenheit. Petroleum itself was held to be within the act, even if it did not give off an inflammable vapor below the specified temperature.
In 26 Am. & Eng. Enc. Law (2 ed.) 680, we find, in regard to a proviso as aiding construction of enacting clauses, the following: “* * Such clauses are often introduced from excessive caution, and for the purpose of preventing a possible misinterpretation of the act by including therein that which was not intended; the rule is therefore not one of universal obligation, and must yield to the cardinal rule which requires the court to give effect to the general intent, if that can be discovered within the four corners of the act. If such general intention would be defeated by construing the act as embracing everything of the same general description as those particularly excepted therefrom, an arbitrary application of the rule is not admissible.” See, also, Dollar Savings Bank v. United States, 19 Wall. 227 (22 L. Ed. 80).
In The Queen v. Kershaw, 26 Com. Law Reports (Law Jr. 1857, N. S.), at page 22, 6 E. & B. 999, 1007, it was contended for the appellants that at an election the poll was invalid, because no person ought to have been admitted to vote at the election who was not actually rated to the highway rate; and the fifth section of 5 and 6 Will. IV, c. 50, was relied upon as explaining the meaning of
It is contended by defendant’s counsel that, by construing section 4 of the act and applying the maxim, “Expressio unius est exclusio alterius,” the statute does nor purport to tax residents of Oregon. This maxim does not apply to a statute, the language of which may fairly comprehend many different cases, in which some only are expressly mentioned, and not as excluding others of a similar nature. If there is some special reason for mentioning one, and none for mentioning a second, which is otherwise within the statute, the absence
In French v. Teschemaker, 24 Cal. 518, 554, it is said that, if a particular construction has the effect to declare the act, or any part of it, not constitutional, such construction must be avoided, when it can be fairly done; for the legal presumption is that the legislature could not have so intended.
In People ex rel. v. Feitner, 191 N. Y. 88, 97 (83 N. E. 592, 595), the court say: “A statute, however, will not be adjudged to violate the constitution if, by any reasonable construction,, it can be given a meaning in harmony with that instrument. ‘As every presumption is in favor of the statute, if it is open to two constructions, one of which would obey and the other violate the constitution, the universal rule of courts is to select the former’ ” — citing People ex rel. Simpson v. Wells, 181 N. Y. 252, 257 (73 N. E. 1025).
In the case of the Southwestern Oil Co. v. Texas, 217 U. S. 114, 121 (30 Sup. Ct. 496, 498: 54 L. Ed. 688), the court, in discussing a similar question where it was contended that the statute was class legislation, because the tax was levied on wholesale dealers in oil, and in which case an occupation tax was involved, held that
In the case of Bell’s Gap R. Co. v. Penn., 134 U. S.
As to what proportion of the oil business in this State will be done by residents or nonresidents, or as to what proportion will be shipped into this State, in any certain year, it is impossible for the lawmakers or any one to determine in advance as no one can state where or when oil will be struck by those seeking it. What the reward of the future will be for labor performed or money expended in delving for oil cannot be told.
The rule is stated in the late case of Brown-Forman Co. v. Commonwealth of Kentucky, 217 U. S. 563, at page 575 (30 Sup. Ct. 578, at page 580: 54 L. Ed. 883), thus: “A system of taxation discriminating in favor of residents and domestic products and against nonresidents and foreign products might result in commercial nonintercourse between states, and as a regulation of interstate commerce would clearly be invalid.”
In Robbins v. Shelby County Taxing District, 120 U. S. 489, at page 497 (7 Sup. Ct. 592, 596: 30 L. Ed. 694), the court said: “When goods are sent from one state to another for sale, or, in consequence of a sale,
Goods brought in original packages from another state, after they have arrived at their destination and are at rest within the State, and are enjoying the protection which the laws of the State afford, may, without violating the commerce clause of the constitution, be taxed without discrimination, like other property within the State. American Steel & Wire Co. v. Speed, 192 U. S. 500 (24 Sup. Ct. 365: 48 L. Ed. 538).
In the case of Kehrer v. Stewart, 197 U. S. 60, at page 65 (25 Sup. Ct. 403) at page 404: 49 L. Ed. 663), the court say. “It was therefore held that the tax, so far as applied to meats sold in Chicago and shipped to the petitioner in Georgia for distribution, could not be supported; but that, so far as the petitioner was engaged in the business of selling directly to customers in Atlanta, he was engaged in carrying on an independent business as a wholesale dealer, and was liable to the tax. The decision was correct. In carrying on the domestic business, petitioner was indistinguishable from the ordinary butcher, who slaughters cattle and sells their carcasses; and in principle it made no difference that the cattle were slaughtered in Chicago and their carcasses sent to Atlanta for sale and consumption in the ordinary course of trade. Upon arrival there, they became a part of the taxable property of the state. It made no difference whence they came and to whom they were ultimately sold, or whether the domestic and inter
It is shown by defendant’s answer that the gross receipts, upon which the 0 State seeks to collect the tax, were derived by defendant from the sale of oil in the State of Oregon. It is not shown by the record that the defendant shipped the oil into this State, consigned directly to purchasers on orders previously taken, or that the defendant sold the same while contained “in original package.” And it does not appear from the record or upon the face of the act in question that it was the intention to lay any tax upon the interstate commerce of shipping the products of oil into the State, to be directly or indirectly delivered to purchasers whose orders were obtained before the goods were shipped. The tax was applied only to business within the State, and not to that which is interstate in character. See Armour Packing Co. v. Lacy, 200 U. S. 226 (26 Sup. Ct. 232: 50 L. Ed. 451) and Osborne v. Florida, 164 U. S. 650 (17 Sup. Ct. 214: 41 L. Ed. 586). It is not claimed or shown by the record that the tax imposed is unreasonable or oppressive.
Much stress is laid on the meaning of the word “such,” in the latter part of the interpretation clause, as signifying that the statute imposed the tax only upon oil produced by nonresidents of the State of Oregon. We think the word “such,” as used in Section 4, means “petroleum in its various products,” and was used merely to save repetition. Giving this meaning to the statute, we think there is no discrimination in favor of residents of the State of Oregon, and that the enactment pertains only to intrastate oil business, and does not interfere with interstate commerce.
The judgment of the lower court is therefore affirmed.
Affirmed.