718 WISEMAN, COMMISSIONER OF REVENUES v. [192 TOWN OF OMAHA. WISEMAN, COMMISSIONER OE REVENUES V. TOWN OF OMAHA. -4-4339; . • Opinion delivered , i\lay 11, 1936. TAXATION.—Act 147 of 1935, P. 419, providing that the tax on „motor vehicle fuel sold by . any dealer in any city or incorporated town boraering on the State line shall be at the rate provided 'by laW in the adjoining State, but providing also that no existing city. or incorpóräted toWn shall take 'advintage of this act' whose ' corporate limits did not on January 1, 1935, extend to Within two Miles of said State dine applies to cities, and incorporated towns ; only that, were, in existence January 1, 1935, and not to them if their corporate limits were not within two miles of the State line on that date.. 2. TA . XA1 ; 4 ION. -L In' c _ ase o . f doubt as to the inclUsien of particular . pfoperty within ; the ' terms of 'a taxing statute,: the presUmption is in favor -of the, taxing power, and the : burden :is on •the claimant to establish his right to :exemption,. Appeal 'frem PUlaski Chaneery Court; Frank H. Dodbe; Chancellbr; reversed. Carl E.' Baileb, Atto'rneY General, : Old Thomas Fitz-hubh, AsSistant, for appellant. Ellis;for appellee. MOHAxE y , J. The village of Omaha is sitliated IJ: S. Highviiay No. 65'in the northern part of Boone county, Arkansas', abont 3 1/ 4 miles south of the Missouri-Arkhnsas 'State' line.- SubseqUent 'to JanuarY 1, 1935, it has been incorporated, the exhét'date riot being §hdywin, under the corporate name of Omaha, and its corporate
ARK.] WISEMAN, COMMISSIONER OF REVENVES v . : 719 TOWN • OF OMAHA. limits so fixed as to include the . former . ,unincorporated village and all, the land on...either side of said : highway to the Missouri-Arkansas. State line. The .principal, if .not the sole, object of :so incorporating, it as. a town .was enable filling • station:.operators in :said town:to .compete with, Missouri. operators. in.the sale, of gasoline ,under. the. provisions .of . §. 1. of act d\To. 147 of • the Acts of 1935. Appellant refused to recognize the right.. of .. gasoline dealers, in said town:to. Settle with the 'State on ,the basis. of the Missouri rate. of. tax, 2 1/ 2 cents . per 'gallon, but col-, lecthd from them the full . Arkansas rate of tax, ,6. 1/2 cents per gallon._ -The appellee, Incorporated _Town. oLOinaha,_ brought this action to enjorn . appellant from so. doing.. A demurrer was interposed. to :the; complaint . which lwas overruled,• and, upon' appellant's declining to plead. fur ther,.the. court permanently enjoined : him from collecting the . Arkansas. rate ,of tax, and, held that gasoline: should be sold in said town at the Missouri•rate. Section 1 of said act 147 of 1935, p. 419, reads as follows : "Where : any city or incorporated toWn border on a State line; the tax on . motor Yehicle fuel 'sold by anY. dealer in such City or incorpOtated 'town on the Arkansas side . of the 'State line' to the' oWnet 'or' oWners of a Motor vehicle and delivered directly into the regtlar fuel' tank ori the motor 'vehicle for • immediate 'use there-, in, shall . be the . rate proVided by law in sitch'adjoining State, 'sueh rate not to' exceed the rate in this* , State ; pro-Yided, however, that where the-State line is the' center or . the Main channel of 'the Mississippi River this ,section shall • not apply; and 'provided, • that such . fnel 'shall be - SO14' to 'radii-fuel-or 'gasoline -dealerS located-within-the corporate limits 'of :sneh cities 'and'tdWn:S : arikdelivered directly intO the underground sterage tanks Of stich' deah erg ; arid PrOVided further that , no • ' , existing : city 'or'' in-: corPOrated town shall take advantage `of this 'act :Whose corporate lithitS did not . , 'on 'January 1;• 1935' extend to within, two . miles of said State; line." It Will ,be seen that the exemption from- the 'Arkan, sas- rate. of tax applies' only : to' ;cities and incorporated toWns that border on a. State line ; "and prOvided further that : no existing .city • or incorporated tOwn shall ;take
720 WISEMAN, COMMISSIONER OF REVENUES V. [192
TOWN OF OMAHA. advantage of . this . act whose . corporate limits did not on J . anuary 1, 19:35, extend to within two miles of said State line." The exemption does not'apply to unincorporated villages and towns 'bordering on a State line or• withih two miles thereof, and we think it applies to ' existing" cities and incorporated towns only, that is such aS ANere in existence on 'January 1, 1935, and then not to them, if their corporate' limits were not within two miles-of a State line on said 'date. In• other Words, cities and incorporated towns more than two miles distant from a State line on January 1, 1935, could not extend their corporate limits and come under the exemption' of the act. There is no provision to be found , in the act that authorizes an unincorporated community to organize itself ihto a municipal corporation after *January 1, 1935, bordering a State line, and thereafter come under the exemption provisions of said act. TO so hold, we would have to read something , into the act which is not there. In the recent case of Wiseman, Commissioner .of Revenues v. Arkansas Wholesale Grocers' Ass'n, ante p. 313, 90 S. W. (2d) 987, WQ said: .."In construing statutes it is the duty of the courts to give them a reasonable, sensible interpretation, and where the language is clear and unambiguous, it is only for the courts . to obey and enforce the statutes. • Boyer-Campbell v. Fry, 2.71 Mich. 282, 260 N. W. 1,65, 98 A. L. R..827." We .there also quoted with approval from Wiseman, Commr. of Revenues. v. Madison Cadillac Co., , 191 Ark. 1021, 88 S. W. (2d) 1007, the following: "In all cases of donbt as :to the legislative intention; or as to the inclusion of particular property -within the terms of the statute, the presumption is in favor of the taxing power, and the burden is on the claimant to establish clearly his right to exemption, bringing himself clearly within the terms of . such conditions as the statute may impose." These decisions had reference to exeMption from the sales tax, but the ' same rule applies. • Appellee Seeks to exempt its gasoline dealers front the Arkansas rate of tax which is 4 cents per gallon higher than the Mis-souri rate, under the provisions of said act 147. Since,
ARK.] 721 as we 'have shown, said act does not authorize the exemption, the courts cannot do so by construction. The decree will be reversed, and the eau :se dismiSsed.
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.