STATE EX REL. v. LA. OIL CORP

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No. 32028.

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McGowen, J., delivered the opinion of the court.

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STATE ex rel. RICE, ATTY. GEN., v. LOUISIANA OIL CORPORATION.

Wm. H. Maynard, Assistant Attorney-General, for appellant.

Reduced to its final and simplest analysis, the only question presented by this suit is whether the fuel oil involved here was used "for motor vehicle purposes," within the meaning of chapter 93 of the 1932 Laws of Mississippi.

It is sound to say that in construing a particular section of a statute the entire statute of which it is a part should be considered in arriving at the intention of the Legislature.

Robertson v. Texaco Oil Co., 141 Miss. 356, 106 So. 449; Dresser v. Hathorn, 144 Miss. 24, 109 So. 23.

The provisions of a statute must be construed together to make a reasonable scheme.

Universal Life Ins. Co. v. Catchings, 169 Miss. 26, 152 So. 817.

In view of the "refund" provisions applicable to gasoline, we adopt the common sense view of the statute under consideration that the definition for "motor vehicle purposes" means fuel oil used for the purpose of propelling a motor vehicle upon a public highway or road of the state of Mississippi.

The bill of complaint alleges that the fuel oil in the instant case was used to propel motor vehicles, to-wit: Motor tractors, upon the public highways of Mississippi. The first question to be determined is whether a motor tractor is a motor vehicle, within the meaning of this statute. A careful search of the authorities reveals only one case which has decided this question. Fortunately, that case involved the construction of a gasoline tax statute and although from another state should be useful in deciding this question.

The case referred to is State of Louisiana v. Cedar Grove Refining Co., 152 So. 531.

This Louisiana case clearly holds that motor tractors are motor vehicles, within the meaning of a motor fuel excise tax law. This definition is reasonable and logical because motor tractors have become so mobile as to allow their free and easy passage over highways. This definition also coincides with the meaning of motor vehicles in our fuel tax statute.

By expressly including in the refund provisions tractors used exclusively for agricultural purposes the Legislature excluded from this refund tractors used for any other purposes, such as in repairing highways for an express exception in a statute excludes all other exceptions.

Town of Purvis v. Lamar County, 161 Miss. 454, 137 So. 323; 59 C.J., Statutes, sec. 543; Equit. Assur. Society v. Clements, 140 U.S. 226, 36 L.Ed. 497.

As the tax on gasoline and fuel oil is similar, as previously shown, then fuel oil used to propel tractors on the highways is subject to the tax contended for by appellant although such tractors are used to help repair the roads.

The fact having been established that tractors are motor vehicles and appellee having admitted by its demurrer that said tractors were driven over an existing highway of the state of Mississippi there would seem to be no question but that appellant is entitled to a decree against appellee if the proof sustained appellant's bill of complaint. This being true, appellee's demurrer should have been overruled.

The argument that the county might have to pay more for having its roads worked if the contractor is made to pay more for his fuel oil is not a sound ground for striking out this tax. In the first place, the gasoline excise tax is placed upon the distributor or retail dealer and not on the county employing a contractor who buys from the dealer.

Treas v. Price, 167 Miss. 121, 146 So. 630; Price v. Independent Oil Co., 168 Miss. 292, 150 So. 521.

Secondly, although we do not think that this question is involved here, even if the county actually paid the tax it would not have a legal ground for complaint.

City of Jackson v. State, 156 Miss. 306, 126 So. 2.

The third and complete answer to appellee's argument that fuel oil used to propel motor tractors used in repairing existing highways is not subject to the six (6) cents per gallon tax is that the tax was imposed by the Legislature on motor fuel used in all motor vehicles operated on the public highways and no exception was made by the Legislature for motor vehicles operated in the manner in which the ones were in the case at hand.

Abbott v. State, 106 Miss. 340, 63 So. 667.

The Legislature did not even see fit to except from its gasoline tax provision gasoline which was used in motor tractors other than those tractors used for agricultural purposes.

Sections 22, 23 and 24, chapter 93, Laws of 1932.

By expressly excepting motor tractors used for agricultural purposes it was shown that all other motor tractors used for other purposes would not be excepted. Where a statute contains exceptions in express language, this is admonition to the court that the express exceptions are the only ones contemplated and that further exceptions should not be engrafted.

Town of Purvis v. Lamar County, 161 Miss. 454, 137 So. 323.

The Legislature had the right to construe the words "motor vehicle purposes" as meaning fuel oil used to propel a motor vehicle upon a public highway. The wording of the statute is plain and words should be construed by the court in their usual and ordinary meaning.

Chattanooga Pipe Works v. Dumler, 153 Miss. 276, 120 So. 450.

The court, in construing a statute of doubtful meaning, should consider the consequences of any particular construction, whether good or bad.

Conard Furniture Co. v. Miss. State Tax Commission, 160 Miss. 185, 133 So. 652.

Statutes should be construed so that their operation will be consistent and practical.

Miers v. Miers, 160 Miss. 746, 133 So. 133.

Appellee's demurrer to appellant's bill of complaint should have been overruled for appellee admitted, by said demurrer, that it had sold fuel oil, knowing it was to be used to propel a motor vehicle over an existing public highway of the state of Mississippi and that on said fuel oil only one (1) cent tax was paid.

Thus, under the express language of the statute, appellee is liable to appellant for a tax of five (5) cents per gallon, which is the amount remaining unpaid, and to an additional twenty-five (25%) per cent penalty.

Green, Green Jackson, of Jackson, for appellee.

The sole desire of the defendant and appellee in this case is to have a judicial construction of this taxing act, and if this court shall hold that it is liable for the tax under the act in question, then this defendant and appellee will cheerfully and promptly comply with the court's decision. With deference, however, we urge that the chancellor correctly decided this case in holding that the defendant was not liable for the additional tax here sought to be collected.

Every taxpayer has a legal right to use all lawful means at his disposal to reduce the amount of what otherwise would be his taxes. Particularly is this true of those taxpayers engaged in the sale and distribution of petroleum products that now bear, in proportion to value, the largest amount of taxes of any other class of taxpayers.

Gregory v. Helvering, 293 U.S. 465, 79 L.Ed. 295, 296; Superior Oil Co. v. Mississippi, 280 U.S. 390, 74 L.Ed. 504, 50 S.Ct. 169.

The contention of the Louisiana Oil Corporation, with deference, is that it has paid the sole tax levied for the privilege of selling kerosene, fuel oil or distillate under chapter 93, Laws of Mississippi 1932.

This tax is an excise tax by the wording of the act.

Section 6, chapter 93, Laws of 1932; Section 4789, Miss. Code Supplement 1933; Moore v. Standard Oil Co., 151 Miss. 100, 117 So. 370.

In construing a statute, this court will apply the well known rule that a tax is not imposed by inference and that the language must be clear and unequivocal.

Frazier v. Stone, 156 So. 596; Pan American Petroleum Corp. v. Miller, 154 Miss. 565, 122 So. 393; McKenzie v. Adams-Banks Lbr. Co., 157 Miss. 482, 128 So. 334.

All doubts in taxing statutes are to be resolved in favor of the taxpayer and against the taxing authority.

Gould v. Gould, 245 U.S. 151, 62 L.Ed. 211; United States v. Merriam, 263 U.S. 179, 68 L.Ed. 240; Bowers v. N.Y. Albany Co., 273 U.S. 346, 71 L.Ed. 676; Burnett v. Niagara Falls Brewing Co., 282 U.S. 648, 75 L.Ed. 594.

Words used in a particular statute are to be construed in the sense in which they will be understood by the general public, on whom such words and acts of the legislative body are to take effect.

United States v. Isham, 17 Wall. 496, 21 L.Ed. 728; Ledderer v. Fidelity Trust Co., 267 U.S. 21, 69 L.Ed. 494.

Another familiar rule in construing statutes is that the court will look to the entire legislation upon the subject and determine the policy of the Legislature from a consideration of all the statutes together.

Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907; Barrett v. School District, 123 Miss. 370, 85 So. 125; Hollandale Ice Co. v. Board of Washington County, 171 Miss. 515, 157 So. 689; Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Panola County v. Town of Sardis, 157 So. 583; Pollard v. Stansell, 169 Miss. 136, 152 So. 646.

Great weight should be accorded this continued administrative application and construction of the statutory provision.

National Lead Co. v. United States, 252 U.S. 140, 64 L.Ed. 496.

There has been a regular session of the Legislature in 1934, and several special or extraordinary sessions of the Legislature since the enactment of chapter 93, Laws of 1932, without any change in the taxing portion of this act, thereby giving rise to an implied approval by the Legislature of the state auditor's and other state taxing authorities' interpretation of the application of this particular taxing act.

United States v. Falk, 204 U.S. 143, 152, 51 L.Ed. 411, 415; Komada v. United States, 215 U.S. 392, 396, 54 L.Ed. 249.

Another series of statutes that should be considered by this court in determining the intent of the Legislature to have levied and collected a tax under chapter 93, Laws of 1932, is chapter 138, Mississippi Code of 1930.

Under the definition of a motor vehicle and particularly the exception set forth therein, it is logical to conclude that a tractor is not a motor vehicle, particularly when used as is set forth in the original bill in this cause, for the reason that in the first place, these tractors are used for the same purpose as road rollers, and, in fact, draw road rollers along over the roads in order to make smooth the surface of such highways. In the second place, these tractors run upon tracks, which it is true are not fixed to the ground, but are laid by the machine in the course of its progress.

There is a more cogent reason why a tractor is not considered by the Mississippi Legislature as a motor vehicle for this that although the definition given in the statute may be sufficient to include all such machines, yet by article 3 of chapter 138, Mississippi Code 1930, as amended, there is no tax levied upon any sort of tractor for the privilege of using the public roads or streets within the state of Mississippi, and no license tag is required by such road and bridge privilege taxing act.

Covington County v. Collins, 92 Miss. 330, 45 So. 854, 14 L.R.A. (N.S.) 1087.

We submit that the use of the fuel oil, as shown by the original bill in the instant case, was not "for motor vehicle purposes," and, therefore, only the one cent (1c) tax applied.

Section 5602, Code of 1930, sub-division 4; Landwehr, Admr., etc., v. Continental Life Ins. Co., 150 A. 732; Salo v. N. American Acc. Ins. Co., 153 N.E. 557; Perry v. N. American Acc. Ins. Co., 104 N.J.L. 117, 138 A. 894; Anderson v. Life Casualty Ins. Co., 197 N.C. 72, 147 S.E. 693.

The chancellor was correct in sustaining the demurrer because there is no tax levied upon the fuel oil as used, under the facts in this case, for maintaining and repairing existing highways, in tractors other than the one cent (1c) tax which has been paid, because such use is not a use upon the roads, streets and highways for motor vehicle purposes, as understood by the Legislature and as intended to apply in this taxing statute.

Section 21, chapter 93, Laws of 1932, sections 4799-5, sub-division (b); Section 31, chapter 93, Laws of 1932, section 4799-15, Miss. Code Supplement 1933.

Under the doctrine of construing statutes in pari materia, as a whole, the use of this fuel oil in a tractor used exclusively for maintaining and repairing existing public highways, is not a motor vehicle purpose as set forth in the automobile road and bridge privilege or excise taxing act.

Section 5602, Code of 1930; Town of Utica v. State ex rel. Rice, Attorney-General, 166 Miss. 565, 148 So. 635.

If the six (6c) cent tax applied here, its collection might prohibit the use of such low priced fuel oil absolutely by the county, and prohibiting, thereby destroy the normal function of the county for the maintenance and repair of the highways of the county.

Gillespie v. Oklahoma, 257 U.S. 501, 42 S.Ct. 171, 66 L.Ed. 338; Indian Motorcycle Co. v. United States, 283 U.S. 570, 75 L.Ed. 1277; Crockett v. Salt Lake County, 270 P. 145; Gregg Dyeing Co. v. Query, 286 U.S. 472, 76 L.Ed. 1232; Burnet v. Coronado Oil Gas Co., 285 U.S. 399, 76 L.Ed. 820; Des Moines v. Johnson, Treasurer, 239 N.W. 577; Oswald v. Johnson, 210 Calif. 321, 291 P. 579; Allen v. Jones, 47 S. Dak. 603, 201 N.W. 353.

We urge that likely there could be no tax at all levied upon the fuel oil in question, but certainly there can be no enlargement of the taxing act so as to include the fuel oil used under the circumstances detailed in the original bill in this case.

10 R.C.L. 704, Estoppel; Carruth v. Gillespie, 109 Miss. 679, 68 So. 929; AEtna Ins. Co. v. Robertson, 131 Miss. 343, 94 So. 9; State v. Mayer, 157 Miss. 836, 127 So. 704; State v. Woodruff et al., 150 So. 760.

To permit a recovery here and to find that the learned chancellor erroneously decided this cause would certainly impair the obligation of the contracts that have been entered into in the light of the departmental construction placed upon this taxing act. There would thereby be, if recovery was here permitted, a violation of article 1, section 10, of the Federal Constitution in that this court would, by its legal decision, impair the obligation of the several contracts entered into.

There would also be a violation of section 16 of the Mississippi Constitution of 1890.

To overrule the decision of the learned chancellor in the instant case in the lower court would tend, at least, to violate the constitutional inhibitions hereinabove suggested, and would bring the decision of this court under the condemnation of numerous cases from the Supreme Court of the United States in analogous situations.

Fox Film Corp. v. Doyal, 286 U.S. 128, 76 L.Ed. 1014; Lawrence v. State Tax Commission, 286 U.S. 280, 74 L.Ed. 1105; Burnet v. Coronado Oil Gas Co., 285 U.S. 399, 76 L.Ed. 820; Metcalf v. Mitchell, 269 U.S. 514, 522, 70 L.Ed. 384; Osborn v. Bank of the United States, 9 Wheat. 866, 6 L.Ed. 234; Indian Motorcycle Co. v. United States, 283 U.S. 570, 75 L.Ed. 1277; Panhandle Oil Co. v. Mississippi, 277 U.S. 222, 72 L.Ed. 858; Ambrosini v. United States, 187 U.S. 7, 47 L.Ed. 52; Johnson v. Maryland, 254 U.S. 51, 65 L.Ed. 126.

The construction given by those administratively interpreting this tax for the state is entitled to much weight.

Gully v. International Co., 165 Miss. 103, 145 So. 905; Hughes v. Gully, 170 Miss. 425, 153 So. 528; Griffin v. Jones, 170 Miss. 230, 154 So. 551; Bank of Philadelphia v. Posey, 130 Miss. 825, 95 So. 134.

It is not controverted that those speaking for the state represented that the tax would be one (1c) cent; that in virtue of this tax being one (1c) cent, the state received its public work with a cost of one (1c) cent thereinto integrated. Now, our position is that having thus represented, and we having acted upon that representation, the state is estopped by that representation as to that which we were allowed to do on the faith of it.

City of Jackson v. Merchants Bank Trust Co., 112 Miss. 537, 73 So. 573; State v. Mayer, 127 So. 704, 157 Miss. 836; City v. Alabama Vicksburg Ry. Co., 160 So. 602.

1. LICENSES. In suit for motor fuel oil tax and penalty, bill held sufficient to state cause of action ( Laws 1932, chapter 93, sections 2, 6, 10; Code 1930, section 5565).

Bill alleged that defendant had paid insufficient tax on motor fuel oil of specified test and in specified amounts retailed for use in propelling tractors which were motor vehicles over roads and highways of state, and that tractors were used in helping to repair and maintain existing highways.

2. STATUTES.

Tax laws are to be construed in favor of taxpayer, and may not be extended beyond terms of statute.

3. LICENSES. "Tractor" generating motive power from motor fuel oil held "motor vehicle" within statute imposing tax on dealer in motor vehicle fuels to be used on highways ( Laws 1932, chapter 93, sections 2, 6, 10, 22; Code 1930, section 5565).

A "tractor" is defined as that which draws or is used for drawing as a traction engine, or an automotive vehicle used for drawing or hauling something as a vehicle, plow, harrow, or reaper.

4. LICENSES.

Statute defining "motor vehicle" for purpose of regulating motor vehicles held not persuasive in interpretation of term "motor vehicle" as used in statute imposing motor vehicle fuel tax (Code 1930, section 5565; Laws 1932, chapter 93, sections 2, 6, 10).

5. APPEAL AND ERROR.

Departmental construction of motor vehicle fuel tax statute regarding imposition of tax upon motor fuel used in tractors operated on highways held not available on appeal to support judgment dismissing complaint in suit for tax and penalty on sale of fuel to be used in tractors (Laws 1932, chapter 93, sections 2, 6, 10, 22).

6. LICENSES.

Tractors used in repair of existing roads held "used upon highways" within statute imposing tax on sale of motor vehicle fuel used on highways (Laws 1932, chapter 93, sections 2, 6, 10, 22).

7. LICENSES.

Liability of dealer for motor vehicle fuel tax sold for use in tractors used in repairing highways under contract with county held not affected by fact that imposition of tax imposed additional burden on county (Laws 1932, chapter 93, sections 2, 6, 10, 22).

8. CONSTITUTIONAL LAW.

State held not estopped from collecting motor vehicle fuel tax and penalties on sale of fuel for use in tractors used in repair of highways under contract with county because contract was entered into under departmental construction of tax statute under which such fuel would be subject to lower rate of tax than that sued for as against contention that collection of higher rate of tax would constitute impairment of obligation of contract (Laws 1932, chapter 93, sections 2, 6, 10, 22).

9. CONSTITUTIONAL LAW. Licenses.

Statute imposing tax of six cents per gallon on gasoline sold for use on highways in internal combustion engines or for any commercial purposes held not unconstitutional as denying equal protection (Laws 1932, chapter 93, sections 2, 6, 10, 22; Const. U.S. Amend. 14).

McGowen, J., delivered the opinion of the court.

A demurrer to the bill in equity filed by the Attorney-General on behalf of the state against the Louisiana Oil Corporation having been sustained, and the Attorney-General having declined to amend his bill, the cause was finally dismissed, and from that decree appeal is prosecuted here.

The state of Mississippi, on the relation of Greek L. Rice, Attorney-General, alleged that the appellee, defendant in the lower court, during the years 1932 through 1935, was engaged in the business of retailing gasoline, kerosene, fuel oil, and other petroleum products in the town of Wesson, Copiah county, Mississippi; that during the time from June 1, 1932, through and including February 28, 1934, the defendant sold, from its retail station at Wesson, to George Marx and J.W. Funchess Sons, Inc., fifteen thousand six hundred fourteen gallons of fuel oil, having a gravity of below forty-six degrees Tagliaubes Baume scale on a basis of sixty degrees temperature Fahrenheit, on which fuel oil there had been paid to the state of Mississippi only one cent per gallon state excise tax; and that at the time of the sale the said fuel oil was placed in fuel tanks of motor vehicles, to-wit, motor tractors owned and operated by the purchasers of said fuel oil, to be used as the motive power in propelling said motor vehicles over the roads and highways of the state of Mississippi, said motor vehicles being used for the purpose of helping to maintain and repair said roads. It was further alleged that said oil was placed directly in the reservoir provided by the manufacturer as the container for motor fuel in the propelling of said motor vehicle, and that defendant knew at the time of its aforesaid sales that the fuel oil sold by it to George Marx and J.W. Funchess Sons, Inc., was to be used by the purchasers in the manner and for the purposes already alleged. Appellant alleged that said fuel oil was used by the purchasers in the manner and for the purposes already stated — that is, to help in maintaining and repairing all existing roads and highways in the state of Mississippi, said maintenance and repairs being done by George Marx and J.W. Funchess Sons, Inc., in Copiah county, Mississippi, under contract with the board of supervisors of said county.

The bill alleged that at the time of the filing of the suit the defendant (appellee here) was liable to the state of Mississippi for an excise tax and a penalty on said fuel oil, according to chapter 93, Laws 1932, or five cents additional per gallon on the fuel oil so sold and a penalty of twenty-five per cent.

The demurrer contained two grounds: (1) That the bill failed to state any cause of action, and (2) that said bill of complaint failed to show any right in complainant to have and recover against defendant, in that the bill of complaint showed on its face that there was no liability of defendant to complainant for any taxes on the tractor fuel used in tractors in building and maintaining highways in Copiah county, Mississippi.

After examining chapter 93, Laws 1932, we are constrained to believe that the court below sustained the demurrer on the theory that a tractor was not a motor vehicle within the meaning of that statute. At the outset we may say that the bill carefully alleges that the tractors were motor vehicles, and that the fuel oil placed therein by the appellee was to be used in propelling said motor vehicles over the roads and highways of the state of Mississippi. We further note that the bill also carefully states that said tractors were used in helping to repair and maintain existing highways, and does not allege that said tractors were used in helping to build highways.

The Attorney-General relies upon section 6 of chapter 93, Laws 1932, and particularly upon subsection (b), for the maintenance of his suit. That section reads as follows:

"Any person engaged in the business of a distributor or wholesale dealer in gasoline shall pay for the privilege of engaging in such business an excise tax equal to and computed as follows:

"(a) Six (6) cents per gallon upon all gasoline received in this state for sale, use on the highways, or storage and/or distribution, use in internal combustion engines or for any commercial purposes whatever.

"(b) One (1) cent per gallon upon all kerosene, fuel oil, and distillate, having a gravity of 46° Tagliaubes Baume scale, or below, on a basis of 60 degrees temperature F., provided however, that if any dealer or person subject to the provisions of this law shall sell any such kerosene, fuel oil or distillate oil knowing that the same is to be used, or is intended to be used, or compounded, mixed or blended, for motor vehicle purposes, the said kerosene, fuel oil, or distillate oil, shall be subject to the same tax as gasoline."

By the same section the retail dealer is required to pay the same excise tax as is required of the distributor.

Section 10 of the act provides a penalty of twenty-five per cent for a failure to pay the tax; and section 2 makes it prima facie that all motor vehicle fuel defined in the statute is intended for use in propelling motor vehicles on the public roads and highways, and further provides for a refund to the consumer of all taxes actually paid, less one cent per gallon, on motor fuel not used in propelling motor vehicles on the public highways and roads.

We are of the opinion that the allegation of the bill quite clearly charges that the fuel oil was furnished by the dealer with full knowledge that it was to be used on the streets and highways of the state then existing, and that this brought the case within the terms of the act.

The real and only serious question presented by the demurrer in this case is whether or not a tractor is a motor vehicle within the purview of the statute. Webster's New International Dictionary (2 Ed.) defines tractor as: "1. That which draws, or is used for drawing. Specif.: a. A traction engine. b. An automotive vehicle used for drawing or hauling something as a vehicle, plow, harrow, or reaper." There seems to be no difficulty in reaching the conclusion that a tractor, according to the dictionary, is an automotive vehicle, or motor vehicle, when it is charged that the motor fuel was placed in the tank thereof for the purpose of being used on the existing streets and highways of the state. As a court, we know that tractors are made up of metal parts, and by the combustion of motor fuel oil travel the highways just as automobiles or other motor vehicles travel; they have steering wheels and gears and proceed upon an endless chain or belt, which is sometimes called a track, and are often attached to various instruments or machines, such as road scrapers, drags, slips, or dump wagons.

In this case we are applying the fundamental rule of statutory construction — that tax laws are to be construed in favor of the taxpayer — and we are not authorized or inclined to extend or expand the statute beyond its terms. Laws imposing excise or privilege taxes are construed favorably to the citizen and are not imposed unless clearly within the provisions of such law, nor are they imposed upon a doubtful interpretation or by implication. See Pan-American Petroleum Corporation v. Miller, State Tax Collector, 154 Miss. 565, 122 So. 393, and authorities there cited.

We have reached the conclusion that a tractor which generates its motive power from motor fuel oil is a motor vehicle within the language of the statute relied on for recovery of taxes in this case, and that the allegations of the bill are clearly within the terms of that statute. It would seem that we might rest the decision here, but counsel for appellee contends that the statute is not clear, and that notwithstanding the plain allegations of the bill we should hold that a tractor so operated should not be held to be a motor vehicle, and earnestly invites our attention to section 5565, Code 1930, which reads as follows:

"Motor vehicle defined. — The term `motor vehicle' shall include all vehicles propelled by any power other than muscular, whether the same be used for pleasure or business or commercial purposes, except road rollers, street sprinklers, fire engines and fire department apparatus, police patrol wagons, and such vehicles as run only on rails or tracks." (Italics ours.) This definition was adopted by the Legislature for the purpose of regulating motor vehicles used on the streets and highways and for the purpose of enforcing general laws as to speed, etc., and further to require that such operators should have a permit so to do, and to impose a privilege tax upon each motor vehicle as defined in the act. Therefore, the purpose of the Legislature being clear, we do not think this definition could be read into, or be persuasive in interpreting, the meaning of the term "motor vehicle" as used in chapter 93, Laws 1932.

Counsel for appellee insists, however, that because a tractor operates on its own track, carried with it and as a part of it as it is propelled, removes such vehicle from the tax imposed by chapter 93 on gasoline and motor fuel oil. We are not called on to say whether or not the so-called track attached to the tractor is within the meaning of the definition as set out in section 5565, Code 1930, but we content ourselves with saying that we are dealing with a tax not upon the vehicle but upon the motor fuel oil used in operating the vehicle; that is, the tax is directed to the distributor, wholesale dealer, or retail dealer, in certain cases, who distributes or sells the particular article here involved.

Our view is strengthened when we consider section 22 of chapter 93, Laws 1932. In that section we find this language: "The term `for agricultural purposes' as used in this act shall be construed to mean motor fuel used in operating tractors or other farm equipment, used exclusively in plowing, planting or harvesting farm products and no part which is used in any vehicle or equipment driven or operated upon the public roads, streets or highways of this state." It is clear that the Legislature treated a tractor as a motor vehicle and exempted its motor fuel from the higher tax when such tractor was used for the specific purposes above set forth.

We are of opinion that the allegation is sufficient to present an issue for trial on the merits and to withstand a demurrer insofar as the definition of motor vehicle is concerned under said chapter 93, Laws 1932.

It is next urged that there has been a departmental construction of this statute whereby a tax of only one cent per gallon has been levied by the state auditor upon motor fuel used in tractors operated on the highways. This allegation is stoutly denied by the Attorney-General, and upon a demurrer we do not think it could be invoked to uphold the judgment of the lower court for two reasons: First, we do not know of such a departmental construction, and, second, we do not know how such a construction has been applied to other parties in the state.

It is next insisted that tractors used in the repair of existing roads are not being operated upon the existing highways and streets within the contemplation of the statute; in other words, that there is an exemption of this fuel oil from the tax of six cents per gallon because it is used to propel a tractor which is engaged in the repair of an existing highway, under contract with the county, which is a subdivision of the state. Counsel cites Oswald v. Johnson, 210 Cal. 321, 291 P. 579; Allen v. Jones, 47 S.D. 603, 201 N.W. 353, and Des Moines Asphalt Paving Co. v. Johnson, 213 Iowa, 594, 239 N.W. 575, 577. An examination of these cases discloses that all of them are authority for the position that the fact that the tractor is used in repairing existing roads does not create an exemption from the high tax. In each of those cases the court was careful to note that the exemption from taxation sought was upon motor vehicles working on highways which had not yet been tendered to the public for its use. In other words, the tractors and other road machinery there discussed were used in the building of new roads.

We cannot yield to the persuasive argument that the state ought not to impose a tax upon motor fuel oil when by so doing an additional burden is thrown upon a subdivision of the state government, to-wit, a county. No reason is assigned, however, why that may not be done. In City of Jackson v. State, 156 Miss. 306, 126 So. 2, the distributor was held liable for the gasoline tax, although such gasoline was used by the city in its fire trucks and police cars, and for other municipal purposes. As a matter of fact, the fund derived from the tax on motor fuel oil, other than gasoline, as imposed by chapter 93, Laws 1932, is turned into the general state fund to the credit of the general fund, and if there is a benefit to the county it is remote and not immediate.

There does not seem to be any element of estoppel in this case, either by laches or otherwise. There is some argument that because of departmental construction and the delay of the Attorney-General in bringing the suit, the contract clause of the Federal Constitution would be violated, presumably upon the theory that a contract was made with the county upon the idea that motor fuel oil would be subject only to one cent per gallon tax, whereas we are holding that it is subject to six cents per gallon. We are unable to see any force or virtue in this argument. No departmental ruling or practice appears to us to be involved at this time in this case. As to the impairment of the obligation of a contract, the parties who made the contracts with Copiah county to repair the roads presumably made them dealing at arm's length with the county and with knowledge of the law as to the amount of tax which would be required upon the particular motor fuel oil here involved. Copiah county is not before this court.

It is not now made to appear that the tax imposed is so arbitrary and excessive as to amount to a denial of equal protection, guaranteed by the Fourteenth Amendment to the Federal Constitution.

The demurrer in this case should have been overruled. The case is reversed and remanded with leave to the appellee to file answer within thirty days after the mandate of this court is filed in the court below.

Reversed and remanded.

STATE ex rel. RICE, ATTY. GEN., v. LOUISIANA OIL CORPORATION.

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