SOUTHWESTERN OIL COMPANY v. STATE OF TEXAS

Carlton Proctor, Greers Nall, Greer, Minor Miller, and Henry C. Coke, for plaintiff in error. — A manufacturer is not a dealer, either within the meaning of section 9 of the Act, or according to the ordinary acceptance of the term, as applied to trade and commercial transactions, and business affairs. By both, a dealer is one who buys to sell again at a profit the sale of the article being in the same form in which the dealer purchased; and the dealer is not one who manufactures to sell or buys to manufacture, or buys to keep. Egan v. State, 68 S.W. Rep., 273; Norris v. Commonwealth, 27 Pa. St., 495; Commonwealth v. Campbell, 33 Pa. St., 380; Taylor v. Vincent, 12 Lea, 282 (Tenn.), 48 Amer. Rep., 340; Overall v. Bezean, 37 Mich. 506; Sanders v. Russell, 78 Tenn. (10 Lea), 293, 297; State v. Barnes, 35 S.E. 605, 606, 126 N.C. 1063; Vernon v. Manhattan Co. (N.Y.), 17 Wend., 524, 526; State v. Yearby, 82 N.C. 561, 33 Am. Rep., 694; State v. Chadbourn, 80 N.C. 510, 30 Am. Rep., 94; 8 Am. Eng. Enc. of Law, 876 (2d ed.); 1 Bouvier's Law Dict., 507.

An occupation can not be split up into parts, and each part or segment taxed as a separate occupation. If taxable at all, it must be taxed in its entirety, and if exempt from a tax, it is exempt as a whole, and, therefore, in each and every part. To apply, if a manufacturer, as such, is exempt, the necessary parts of his business, to wit, (1) buying the raw material for manufacture, and (2) selling the manufactured product, must also be exempt. Commonwealth v. Fowler, 28 S.W. Rep., 787; People v. Voorhis, 131 Mich. 398, 91 N.W. Rep., 626.

The provisions of statutes levying taxes will not be extended by implication beyond the clear import of the language used, or enlarged in their operation, so as to embrace matters not specifically pointed out. Such statutes are construed most strongly against the government, and in favor of the citizen, "because burdens are not to he imposed, nor presumed to be imposed beyond what the statutes expressly and clearly import." United States v. Wigglesworth, 2 Story. 273; State v. Pullman (Wis.), 23 N.W. Rep., 872; State v. M'Fetridge (Wis.), 24 N.W. Rep., 144; Mace v. Buchanan (Tenn.), 52 S.W. Rep., 507; State v. Green, N.C., 35 S.E. Rep., 463; Brown v. Commonwealth (Va.), 36 S.E. Rep., 487; Cooley on Taxation, p. 267.

The caption of the Act only purports to tax "wholesale dealers" in refined oils, etc. Any effort to tax manufacturers as such; that is, when not acting as dealers, or to tax the property in their hands which they have manufactured, is beyond the caption, and therefore invalid, and so much of section 9 of the Act as purports to lay a tax on "the cash value of any of said articles that may be received, possessed or handled, or disposed of in any other manner, than by sale," is invalid as being beyond the caption of the Act. Art. 3, sec. 35, Const.; Adams Wicks v. Water Works Co., 86 Tex. 487; Giddings v. San Antonio, 47 Tex. 548; Cooley on Constitutional Limitations, p. 172.

Section 9 unconstitutional as imposing a tax not being uniform and equal. We cite the following authorities as supporting the proposition indicated above: State Constitution, art. 8, sec. 2; Pullman Palace Car Co. v. State, 64 Tex. 274; Hoefling Son v. City of San Antonio, 85 Tex. 228 [ 85 Tex. 228]; Patrol v. State, 53 S.W. Rep., 869; Ex parte Jones, 43 S.W. Rep., 513; Ex parte Overstreet, 46 S.W. Rep., 825; Gulf, C. S.F. Ry. Co. v. Ellis, 165 U.S. 165; Cotting v. Godard, 183 U.S. 102; Commonwealth v. Clark, 195 Pa. St., 634, 57 L.R.A., 348; Standard Oil Co. v. Spaulding (S.C.), 44 S.E. Rep., 377; Avars' Appeal, 122 Pa. St., 277; Lloyd v. Smith, 176 Pa. St., 218; State v. Loomis, 115 Mo., 307; Stratton v. Morris, 89 Tenn. 497; State v. Hann, 61 Kans., 146; North South Ala. R.R. Co. v. Morris, 65 Ala. 193; Railroad Co. v. Moss, 60 Miss. 641; Lafferty v. Railroad Co., 71 Mich. 35.

This Act singles out wholesale dealers in oil and certain products refined from petroleum from among all other wholesale dealers in other articles, as sugar, bacons, coal and iron, and imposes a tax many fold greater than on any other class of wholesale dealers, and also unusual penalties and forfeitures without any reasonable grounds for such distinction. Such classification is capricious and arbitrary, in that it does not apply to persons engaged in like business, as dealers in coal, etc., and therefore denies the wholesale dealers in oil, etc., the equal protection of the law. Pullman Palace Car Co. v. State, 64 Tex. 274; Hoefling Son v. City of San Antonio, 85 Tex. 228 [ 85 Tex. 228]; State v. Compress Co., 95 Tex. 611 [ 95 Tex. 611]; Cotting v. Kansas City Stock Yards Co., 183 U.S. 79; Gulf, C. S.F. Ry. Co. v. Ellis, 165 U.S. 150; Fraser v. McConway Forley Co., 82 F.R., 257.

Statutes must be construed to speak and operate prospectively, unless the contrary construction is evidently required by their plain and unequivocal language. Therefore, this Act in question, which passed the Legislature finally on April 13, 1905, and was approved on April 17, 1905, must be construed to refer to April 1, 1906, where it requires reports to be made and taxes paid "on the first day of April and quarterly thereafter." Galveston, H. S.A. Ry. Co. v. State, 81 Tex. 572; Life Ins. Co. v. Ray, 50 Tex. 511; Dodge v. Nevada Natl. Bank, 109 Fed. Rep., 726; Wild v. Boston, 171 Mass. 254, 50 N.E. Rep., 533; Cooley's Const. Lim., 62; Sedg. St. Const. Law, 172; Black Interp. Law, 20.

Robert Vance Davidson, Attorney-General, and Claude Pollard, Assistant Attorney-General, for appellee.