Edmond Independent School Dist. No. 12 v. Oklahoma Tax Commission

GIBSON, V. C. J. This action was instituted in district court by Edmond independent school district No. 12 of Oklahoma county against Oklahoma Tax Commission to recover certain excise taxes paid under protest. Judgment was for defendant, and plaintiff appeals. The cause was submitted to the court on a stipulation of facts out of which arose the single issue of law whether the school district, in the purchase of gasoline for its school bus used exclusively in transporting children to and from school, was liable for the excise tax of 1% cents per gallon as levied on all gasoline sold by chapter 18b, Title 68, S. L. 1941 (68 O. S. 1941 §§ 660-660d). That act levied the 1 Vz cents per gallon in addition to the 4 cents per gallon theretofore levied by article 14, chapter 66, S. L. 1939 (68 O. S. 1941 § 659a), and, by paragraph (c), section 1 thereof, provided that the state and all its political subdivisions should be subject to the additional tax. Said paragraph (c) reads as follows: “The gasoline excise tax of one and one-half cents (l%c) per gallon herein levied shall apply to and be payable on gasoline sold and delivered to or used by the state or any political subdivision thereof.” Said act became effective May 20, 1941. However, the Legislature had previously enacted chapter 31a, Title 70, S. L. 1941, wherein gasoline used exclusively for school buses as above mentioned was specifically exempted from all state taxes. The exemption is set out in section 6 of the act, as follows: “Gasoline used solely and exclusively in district-owned school buses for the purpose of transporting school children to and. from school under the provisions of this act shall be exempt from all state taxes; and gasoline purchased by any school district for use exclusively’ in school buses leased or hired for the purpose of transporting school children to and from school under the provisions of this act shall also be exempt from all state taxes.” The latter section became effective on May 15, 1941, or five days prior to the act, supra, providing for the additional levy of lVz cents per gallon and making the state and all political subdivisions subject thereto. At the time the above exemption was enacted the excise tax on gasoline was 4 cents per gallon as provided by 68 O. S. 1941 § 659a, supra. The school district takes the position *242 that the exemption statute, until properly repealed, applied not only to all existing levies, but to future levies as well. It is said that the provision in the latter act which would subject all political subdivisions generally to the payment of the additional 1% cents per gallon would, if applied to school districts, amount to a partial repeal by implication of the statute exempting the district from all gasoline taxes, and that repeal by implication is not favored. The school district looks upon the exemption section of the first act, and the clause in the second, which would apply the levy therein made to political subdivisions generally, as relating to the same subject matter, but insists that to apply the latter clause to school districts would constitute an unwarranted interpretation under the rules governing the construction of statutes in pari materia. Counsel agree with the commission that the two provisions are in pari materia, and that both should be allowed to stand in every respect within the scope of consistency, but say that paragraph (c), supra, being general in its application to political subdivisions, should be held inapplicable to school districts in order to avoid implied partial repeal of a statute of specific application by a statute of general application. It is true that statutory provisions in pari materia, one of which applies specifically to a given subject matter, and the other generally to similar subjects which would include said given subject matter and thereby conflict with the provisions of specific application, are so treated that the latter is usually looked upon as an exception to the general provision, and both allowed to stand as if there were no conflict. This is especially true where, as here, the provisions were enacted at the same session. O’Brien Packing Co. v. Martin, 172 Okla. 157, 44 P. 2d 72. In such case the Legislature is not presumed to have intended a conflict or repeal. Gardner v. School Dist. No. 87, Kay County, 34 Okla. 716, 126 P. 1018; Gordon v. Conner, 183 Okla. 82, 80 P. 2d 322. The rule is stated in the latter case as follows: “Where there are two statutes upon the same subject, the earlier being special and the later general, the presumption is, in the absence of an express repeal, or an absolute incompatibility, that the special is to remain in force as an exception to the general.” The school district says this case falls within the above rule. It is contended that the exemption statute operates prospectively; that it was intended to apply to all present and future levies (Baker & Strawn v. Magnolia Petroleum Co., 124 Okla. 94, 254 P. 26), and that the general provision purporting to include the school district as a political subdivision, if applied, would repeal the exemption by implication to the extent of the subsequent levy of IV2 cents per gallon, and that such repeals are not favored. Garton v. Hudson-Kimberly Pub. Co., 8 Okla. 631, 58 P. 946; State v. White, 170 Okla. 126, 39 P. 2d 69. It may be that the exemption statute was intended to apply to all present and future gasoline tax levies. But, as always, the exemption, in the matter of its restriction, was subject to the will of the Legislature. It could be repealed or it could be restricted in its application at any time the Legislature might see fit. Under the general rules of statutory construction repeal by implication is not favored. But a clear legislative intent to restrict the application of a former statute should be respected by the courts. Here, the question is not one of repeal; it is one of restriction. As we view the second of the two statutes, there is revealed a clearly expressed intent that every political subdivision pay the 1% cents per gallon tax thereby levied, regardless of the present status of the subdivision with respect to exemption. We see no irreconcilable conflict in the two statutory provisions, and are aware of no reason why both should not stand in every respect as the clearly expressed legislative will. Such was the evident intention of the *243 Legislature; and at the basis of all rules of statutory construction lies the ultimate purpose of determining the legislative intent. That is the sole question. And where the intent is clearly expressed, rules of construction are not invoked. The judgment is affirmed. CORN, C. J., and RILEY, BAYLESS, WELCH, and HURST, JJ., concur. OSBORN, J., absent. DAVISON and ARNOLD, JJ., dissent.