Pure Oil Co. v. Cornish

The issue involved in this original action is whether the Oklahoma Tax Commission will be restrained from the collection of a tax. That issue is dependent upon the controversy as to whether the Pure Oil Company is a class "C" motor carrier. That controversy is determined by the breadth or scope of the legislative enactment, chapter 156, S. L. 1933, p. 354.

Primarily, this court is presented with the question of jurisdiction. Although that question is not briefed, it always arises, for it is elementary that jurisdiction cannot be conferred by consent. More than a quarter of a century ago this court, speaking through Mr. Justice Kane, a former member of the Constitutional Convention, said:

"The Supreme Court is essentially a court of appeals, and is without original jurisdiction to issue writs of injunction in cases where the relief prayed for is purely injunctional." State ex rel. Brett, Co. Atty., v. Kenner et al., 21 Okla. 817,97 P. 258.

In the original case on the subject a levy of taxes was sought to be enjoined. The same relief is sought in the cause at bar. In the cited case it was said:

"From the foregoing it is obvious that the relief prayed for is purely injunctional."

It is equally as obvious in the instant case. It so being, this court ought not issue a writ of injunction under the cloak or designation of a writ of prohibition.

The writ of injunction was well known to the framers of the organic law, and there was sound reason for exclusion of this writ from those enumerated and made available, in the Constitution, section 2, art. 7, for the needs of the Supreme Court. It is worthy of note that the Supreme Court of the United States is not a court of original jurisdiction except in special cases. Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. It functions well despite the limits. The political issue has ever been to further limit rather than to extend its powers. The reason underlying this judicial structure and distribution of jurisdiction, original and appellate, is an appreciation of the limitations upon man's knowledge of the law. No man or body of men is the repository of all wisdom, either legal or political. A jurist cannot speak as the Oracle. A judge can will nothing. Numbers but lead to mass or mob psychology with a resultant standardization or averaging of intelligence. The superiority of a Supreme Court is therefore maintained only by a superior position of authority which allows time for deliberation, preparation and study (The Work of the Supreme Court — Frankfurter-Landis, Introduction), not only on the part of those who occupy the bench, but also on the part of litigants and attorneys, who present errors. The text, meaning, and intention of our laws are not so plain as those brought down from Mt. Sinai, although there is no ambiguity in the one now under consideration — and ambiguity alone justifies resort to historical setting in order to ascertain the true meaning. It has been observed by a cynic that an appellate court is one that exists to correct errors of others, and to perpetuate its own. Be the criticism just or unwarranted, there is no occasion in the cause at bar to depart from ancient landmarks in the commission of new errors, of law.

Aside from the question of jurisdiction, as I view it, the majority has fallen into grave error. The tax imposed by this act is laid upon the "person, firm, business, trust or corporation," and not upon the particular vehicle that happens to use the "King's Highway" in furtherance of a "private commercial enterprise." This is so, notwithstanding that the amount of the tax is calculated upon a motor carrier weight and mileage basis.

Under the agreed facts, the petitioner's business is so extensive that use is made of the highways intersecting two or more cities. It is "not operating exclusively within the limits of an incorporated city or town within this state." It is therefore doing an "inter-city business" within the meaning of the act.

" 'Interstate commerce' includes transportation upon a railroad passing through more states than one, or from a point in one state to a point in another." Mobile O. R. Co. v. Sessions (C. C.) 28 F. 592 (4 Words Phrases, First Series, p. 3725).

Doubtless the word "inter-city" was used by the Legislature in relation to its broad, analogous judicial construction so that traffic intersecting two or more cities constitutes inter-city traffic.

Is the petitioner operating "any motor vehicle upon any public highway * * * for commercial purposes, or infurtherance of a private commercial enterprise?" If so, it is a "motor carrier" and must pay the tax. That the business need not be impressed with a public character to be subject to the tax is evident from the description of class "C" motor carriers (par. 3), which includes all "engaged in the transportation of property in furtherance of any private commercial enterprise and not operating as a private carrier for hire or as a common carrier for hire," with certain exception as to farm products, etc., not here applicable, except to show by the exclusions, inclusion of such a motor carrier as petitioner's engaged in using the highway in furtherance of a commercial enterprise.

The majority restrict the word "commercial" so as to limit it to "buying, selling, and exchange in goods, wares, and merchandise in the general sales or traffic of our own markets", but Webster's New Int. Dictionary defines "commercial" as "having financial profit as the primary aim", and "commerce" is defined as "business intercourse," and "traffic" is given by the same authority as a synonym prior to the word "trade."

"Commerce" is defined in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23, to mean, not only traffic, but also intercourse. Commerce is traffic, but it is something more, it is intercourse, McNaughton Co. v. McGirl, 20 Mont. 124, 49 P. 651, 38 L. R. A. 367, 63 Am. St. Rep. 610. It embraces also transportation and all means and appliances necessarily employed in carrying it on. Chicago N.W. R. Co. v. Fuller, 84 U.S. (17 Wall.) 560, 21 L. Ed. 710; Wender v. Caldwell, 55 U.S. (14 How.) 434, 14 L. Ed. 487.

Undoubtedly the carrying from one state to another by independent carrier of goods and commodities that are ordinary subjects of traffic constitutes interstate commerce. Champion v. Ames, 188 U.S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492.

"Commerce" includes transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities. U.S. v. E. C. Knight Co., 60 F. 934.

As applied to state statutes, classifying as "commercial," for the purpose of taxation, motor vehicles, as in the case at bar, the Supreme Court of Alabama held the fact that trucks were used for carrying logs and provisions of the owner did not exempt such trucks from a privilege tax levied on commercial vehicles, since by "commerce" is meant, not traffic only, but every species of commercial intercourse as well, and transportation is as much a part of commerce as are the goods transported. Conecuh County v. Simmons, 19 Ala. App. 65,95 So. 488; Ruck v. Chi., M. St. P. Ry. Co., 153 Wis. 158, 140 N.W. 1074.

Undoubtedly such meaning was intended by the Legislature, for while the prior act, chapter 253, S. L. 1929, sec. 1(b), par. 3, may have limited the definition of class "C" motor carriers to those engaged in trade or merchandising, by the use of the words "consignee, purchaser, or recipient of such property, goods or merchandise," as stated by the majority opinion, now, for the first time, subsequent to repeal, yet the prior judicial construction was upon the provision for the charge or collection on account of the transportation or delivery of goods or merchandise, and not upon a restricted meaning of the word "commercial." Collins-Dietz-Morris Co. v. State Corp. Comm., 154 Okla. 121, 7 P.2d 123, 80 A. L. R. 561. The court is now presented with a new act, wherein the words "goods," "merchandise," "consignee," "purchaser," etc., are omitted. Some significance must be attributed to the amendment which omitted these words, and it is impossible to properly construe the present act so as to conclude that the Legislature did not intend to embrace within the definition a designation of such users of the state highways for commercial purposes as is the petitioner.

In the final analysis, payment of the tax imposed upon petitioner by law is dependent upon whether the word "commercial" as used in the act is broad enough in its meaning to include either traffic, transportation, intercourse, or transit of property.

That it is so I rest assured upon the eminent authorities cited and quoted. But be that as it may, there can be no doubt but that petitioner is engaged, considering the broader aspect of the purposes of its business, in a commercial enterprise. The goal of its endeavor, be it production of natural resources or industrial pursuits, is profit. Its use of the highway is "in furtherance" of this. Consequently, by the act, the Legislature sought justly to tax it for the use and upkeep of the public highway appropriated to its private commercial use.