State v. Inland Empire Refineries, Inc.

I dissent. As I view it, there is only one ground of the attack on the constitutionality of chapter 186, Laws of 1939, that has a semblance of validity. That is the exemption allowed under § 15, subd. (e), upon the "withdrawal, sale or distribution by a distributor of all petroleum products derived from the refiningwithin this state of crude petroleum or crude oil." (Italics mine.) Obviously, this is an unconstitutional discrimination in favor of persons and corporations engaged in refining petroleum and crude oil in this state. But it does not follow that the entire act must fall. For, by § 21, it is provided:

"If any section, sub-section, clause, sentence or phrase of this act, including those setting forth any penalty, exemption or definition, is for any reason held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of this act, and the Legislature hereby declares it would have enacted this act if such section, sub-section, clause sentence or phrase were omitted."

By this section, the legislature declared in language as plain as English can express that it was its purpose to lay the tax upon all distributors if the exemption defined in § 15, subd. (e), were unconstitutional. In other words, the exemption falls and the act stands as though the exemption had been omitted by the legislature itself. Utah Power Light Co. v. Pfost,286 U.S. 165, 76 L. Ed. 1038, 52 S. Ct. 548; Bacon Service Corp. v.Huss, 199 Cal. 21, 248 P. 235; Ex parte Schmolke, 199 Cal. 42, 248 P. 244; Di Lustro v. Penton,106 Fla. 160, 142 So. 898; Gulfport Building Loan Ass'n v.Gulfport, 155 Miss. 498, 124 So. 658; Boyd v. State,217 Wis. 149, 258 N.W. 330; State ex rel. Attorney General v. Tittmann,42 N.M. 76, 75 P.2d 701; Reynolds Metal Co. v. Martin,269 Ky. 378, 107 S.W.2d 251; Ingels v. Riley, 5 Cal. 2d 154,53 P.2d 939, 103 A.L.R. 1; Johnson v. Long Furniture Co.,113 Miss. 373, 74 So. 283; Smith v. Wilkins, 164 N.C. 135,80 S.E. 168; Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692;People v. Stokes, 281 Ill. 159, 118 N.E. 87; Fairley v.Duluth, 150 Minn. 374, 185 N.W. 390, 32 A.L.R. 1258; State exrel. Dillon v. Braxton County Court, 60 W. Va. 339, 55 S.E. 382;Fox's Appeal, 112 Pa. 337, 4 A. 149.

In the first case above cited, an act was under consideration which provided for an excise tax on the production of electric energy for sale. Power furnished for pumping water for irrigation purposes was exempted from the operation of the act. The act contained a saving clause similar to § 21 of chapter 186, Laws of 1939. Addressing itself to the exemption and the effect of its invalidity upon the act as a whole, the court said:

"A further contention is that § 5 is an inseparable part of the act, and being unconstitutional, the entire act must fall with it. . . .

"The act itself (§ 11) provides that an adjudication that any provision of the act is unconstitutional shall not affect the validity of the act as a whole, or of any other provision or section thereof. While this declaration is but an aid to interpretation and not an inexorable command . . . it has the effect of reversing the common law presumption, that the legislature intends an act to be effective as an entirety, by putting in its place the opposite presumption of divisibility; and this presumption must be overcome by considerations that make evident the inseparability of the provisions or the clear probability that the legislature would not have been satisfied with the statute unless it had included the invalid part. . . .

"It fairly may be assumed that the Idaho Legislature, in making this declaration, had in mind every provision of the act, including § 5. The primary object of the statute, under review, plainly, is to raise revenue. The exemption made by § 5 and the provisions for carrying that exemption into effect are secondary. We find no warrant for concluding that the legislature would have been content to sacrifice an important revenue statute in the event that relief from its burdens in respect of particular individuals should become ineffective. On the contrary, it seems entirely reasonable to suppose that if the legislature had expressed itself specifically in respect of the matter, it would have declared that the tax, being the vital aim of the act, was to be preserved even though the specified exemptions should fall for lack of validity."

Of a taxing act exempting "notes or bills for work or labor done," it was said in Fox's Appeal, supra:

"The exception . . . is void, under this provision, and drops out of the Act of 1885. The exception falls, but the Act stands. It will be the duty of the assessors to assess and return such bills or notes the same as other moneyed securities in the hands of individuals."

MAIN, J., concurs with BLAKE, C.J.