830 -Pax SMITii V. Wk irso*: 1187 . _ FORT Sly'Ili' v. WATSON., 4-3164 Opinion delivered JU137 -10, 1933'. 1. T — . ICENSFSGASOLIND TAX:—T 4 IABILITY OF city is liable for the tax on gasoline used in pi . Opelling its nlOtor vehicles on State highways, wider Acts 1929, No. 65. 2: LICENSESGA goith TARLIABILItY OF city using gasb-line in proPelling its inotor vehicles witliont payment of the tax thereon by any one 'must be regarded as a !`*holesaler,". within „Acts 1929, No. 65, par. 2.. Appeal from Sebastian Circilit CoUrt, Fört 'Staith District ; . J. Sain . WbOct, Judge; dffiinie-d. Facljo Crave0, for appellarit; Hal L::Norwood,-. Atforn6y, General, Pat -Meleaffy, Assistant,. and Earl R. Wisemany .for_appellee:, - HUMPHPE YS, ' APpellee broright this 'Suit against appellant to; iecoVer the gaSoline tax imposed 13y act 65 of the ActS 'of the General 'ASsenibly `• of , 1929 'for ''the ainount'of • gasoline used by . the eitY Of FOrt Smith (ap' pellanf) in 'Propelling motor' vehicle's' OWned oPerated by said city On the public *roads' and highwaySlof the 'State for its; the city's, goVernmental.' purpose§ 'in the' year 1933, WhiCh tax aniOunted to' $776.98. The coin.= Plaint alleged and' the demurer admitted that said city in the year 1933 ie6eived in this State 'and uSed gasOline in propelling itS mOtOf ' r ehibleS for' it§ goirernrhental purpdse g , dn which no tax had' been paid': The circuit Court overruled the -demniter to; the dömplaint; ajid ap-ij ellant refused to 'Plead further-brit stood. iin! rer; whereupon judgment was- rendered again§t'ai p pel-lant -for the aindunt sued for,' . froin whiCh is 'thi§ 'appeal. Two questions were presented by thiS appeal,: . First,, is gasoline purchased by ; the appellant, for governmental purposes subject Jo the talc imposed by the act aforesaid'? • . , Second, if the gasoline so purchased is subject to tax, is the appellant city the one required by the statute to pay the same?
A.RK.] FORT- SMITH V. WATSON. 831 . (1) ills argued that, by act 65 of. the Acts of the General Assembly . of 1929, the Legislature did not, intend to impose the:tax upon gasoline used in propelling the motor yehicles over the roads and highways because the act does not :specifically . and . expressly require ithe cities , to pay, the tax. •The , act in. question ;is , ,a general act covering the whole subject invOlyed, and contains but one exemption, which is as follows „ "Motor I r ehi.CleS belonging iolhe, ilnited. States:G-6v-, etnthent, anclused in its' business exclusie1Y, shall not be required to pay : any mOtor vehicle- fuel tax of exhibit a State: 1i:cense : plate; but in lien of .a 'State license Plate shall; have exhibited thereon a 'license plate in a form provided by the State Highway Commission showing. that they are . United States . Governinent motor vehicles: '! Had the Legislature intended to exeMpt its political subdivisions from the payment of the tax, it would have Pin-eluded same in this exemption: It follows that the Legis-- lature intended' . for its politiCal , ,subdivig ons to 'pay, the t gx: This identical question:was decided . by this court in the . case of Blackwood-v: . Sibeck;180 Ark.' 815, 23.S. W. (20 259: This court ruled in thatease . that, ,by exempting motor vehicles belonging to the United States Govern: ment from the payment of.a„license fee, no , other vehicles were intended to le 'exempt. 'The exemption from the license fee and gasoline taxes appear in the same section (§ 35) of the act. The interpretation placed on this act heretofore and ,now finds support in , the cases of Crockett v. Salt"Laké ; COUnik,'72'titth 337, 270' PaC. 144';' City of Portland v. Kozer, 108 Ort.:375, 217 Pac. 833'; City of Louisville v. Cro . m well, 2 ! 3 • 3 ; Ky. 828, 27 S. W. 377. • (2) „ It is argued that, even if gasoline used by the 6ty . in propelling :its'incitel : . iehiCleS. OVerthe th'ids•and highways is subjeCt to the tai,: the City Cannot be-Made to pay same directly . to the ;State, but must pay it to the manufacturer or : wholesaler, who, in -turn, must _pay it to the State.. The record...is 'silent as tO. where -the. city Of Fort Smith got the gasoline,'but 'it adinitted that it was . used by said city Without , the paYinent of the tax to the State by any one.:::Under. these eircuMstanceS, the
city must be regarded as a wholesaler under paragraph 20 a § 30 of said act. That section defines the term wholesaler as • used in the act to include any person, firm, partnership, corporation, or association of persons "who receive for consumption in propelling motor vehicles on the public highways motor vehicle fuel on which the tax has not been paid." A similar question as to what constituted a retailer under the Utah statute defining retailers was §ettled adversely to the contention of appellant in the case of Crockett v. Salt Lake County, supra. The Utah court said " Some question is made in the argument of appellants that the court ruled that Salt Lake County is neither a retail dealer nor a distributor as defined by the Gasoline Tax Law, but also ruled that the county is liable for the tax with interest and penalty. It is true that the court did not find specifically that the county is a distributor or retail dealer, but the court did find that the defendant county purchased the gasoline in the State of California and caused same to be -shipped into this State and used it within this State. That finding fixed the status of the county as a retail dealer as that term is defined in subdivision D above quoted." The judgment is therefore affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.