Crockett, Secy. of State v. Salt Lake County , 72 Utah 337 ( 1928 )

I fully concur with the dissenting views of Mr. Justice HANSEN. With respect to the conclusion reached and the construction given the act in the prevailing opinion, I think these further observations pertinent: By the act no one but a "distributor" or a "retail dealer," as defined by subdivisions (c) and (d) of section 1 of the act, is subject to the tax or penalties or requirements as in the act provided. In other words, all those who are intended to be subject to the tax and the requirements of the act are divided into two classes, a "distributor" and a "retail dealer." In an attempt to indicate those intended to be included in the one and in the other class, unreal and factitious meanings are given the well understood, common, and popular meaning of the terms, "distributor" and "retail dealer"; and what is rendered unintelligible by the fanciful definition of the one is rendered uncertain and ambiguous by the capricious definition of the other. Looking at the situation as best we may to ascertain the legislative intent, the most favorable view of the definitions is that all persons, firms, and corporations are subject to the tax and to the requirements of the act, (1) who produce, manufacture, or compound motor vehicle fuel for use, distribution, or sale in the state; (2) who import the fuel for use, distribution, or sale in quantities other than in original packages; (3) who purchase it in the state in original packages from a distributor, for use, distribution, or sale in the state in quantities other than in the original package; (4) who import it into the state in an original package for his or its own use. It thus is seen that no one is made subject to the tax for his own use of the fuel, except one who imports it in an original package for his own use. Under the act, one may import the fuel in original packages for sale, distribution, or for the use of others, without being subject to the tax; but, if one so imports it for his own use, he is subject to the tax. I see no legal basis for the distinction. The distinction may have been made to avoid what might have been thought an infringement on the commerce clause of the Federal Constitution, and on the belief that, if one, importing the fuel in original packages for sale, distribution, or, not for his own use, but for the use of others, should be made subject to the tax, the commerce clause would be transgressed, and hence all such were excluded; but the Legislature may have thought no such infringement resulted by including one who, in such case, imported the fuel for his own use. If fuel ordered or purchased before importation and before it lost its character as commerce and sold in trade is not subject to the special or excise tax, I do not well see how it may be made subject to such tax when so imported for one's own use, unless the tax is laid on the use of the fuel by all who use or consume it regardless of whether the fuel was imported or otherwise obtained in original packages or otherwise. But that is not what this act does. In such respect it lays a tax only on the consumer or user when he imports it in original packages for his own use, and, too, regardless of whether the purchase was made or order given before or after importation and regardless of whether the fuel had or had not lost its character of commerce. In such respect I think the act different from the act of New Mexico (Laws N.M. 1919, c. 93), considered by the Supreme Court of the United States in the case of Askren v. Continental Oil Co.,252 U.S. 444, 40 S.Ct. 355, 64 L.Ed. 654, and it further is perceived that the facts and conditions of this and of that case are quite dissimilar, and that whatever was said by the court in the Askren Case must be considered with respect to the particular facts and conditions and of the kind of statute there under consideration. The dominant thought of the act here in effect is to lay a tax on the producer, distributor, and dealer of and in the fuel (that is, on the fuel produced or distributed by a producer or distributor or dealt with by a dealer, and not on the consumer or user, except as may be inferred when he imports the fuel in original packages for his own use); and if it be held, as it is in the prevailing opinion, that the county is included within such exception, then it seems to me the act, if not bad because transgressing the federal commerce clause, is bad because of an unreasonable discrimination. I, however, prefer to regard the act, as does Mr. Justice HANSEN, as not intending to include a situation or condition as here presented and for the reasons stated by him and thus uphold the act. But, if it is to be given the construction given it in the prevailing opinion, then I think it bad in the particular and for the reasons stated.