People v. Richfield Oil Co.

On the authority of People v. Ventura Refining Co., ante, p. 286 [ 268 Pac. 347 ], the judgment in this case must be affirmed.

The contracts here involved are summarized by appellant as follows: “Class A agreements, where the purchaser agrees to purchase and the Richfield Oil Company agrees to sell the entire requirements of the purchaser in his business for a period of one or more years, and daily thereafter until the agreement is cancelled by either party upon a ninety days’ written notice of cancellation to the other. The price of the motor vehicle fuel sold thereunder was to be cash paid on delivery, 3 cents per U. S. gallon under the retail market price as maintained by the Standard Oil Company of California in the city of Los Angeles at the time of delivery.

“Class B agreements are in general in the same form as those of Class A except that the agreement of this type has no fixed term or period but remains in effect from the date of execution thereof until the same is cancelled by either party upon a ninety days’ written notice of cancellation to the other. Price provisions are the same.

“Class C agreements, where the buyer purchases from the Richfield Oil Company certain property and equipment used in the ordinary gasoline station, such as pumps, tanks, piping, etc. The purchaser under this agreement agrees to pay for such property or equipment in instalments running over a period of ten months or more, the purchaser agreeing, during which period and until the property is paid for, to use said property and equipment exclusively for the purpose of storing, distributing and vending petroleum products which may be sold or furnished to him by the Richfield Oil Company, and also agrees, during all of said time, to regularly handle and sell or offer for sale

These contracts are even more flexible as to price than those considered in the case above noted. In fact one set of the contracts has no price feature of any kind. The market price controls in all of them and this price, of course, reflects the two-cent tax. This is conceded by appellant; hence there is no basis for a different holding.

In answer to the claim of the state that to allow the broad construction contended for by appellant would be to allow an unjust discrimination between persons of the same class, appellant replies that this being an excise and not a property tax, certain constitutional provisions are inapplicable here. But the constitutional provisions invoked (art. I, sec. 11; art. I, see. 21, and art. IV, sec. 25, subd. 19) apply as well to a statute imposing an excise tax as to any other (In re Richardson, 170 Cal. 68 , 73 [ 148 Pac. 213 ]).

Judgment affirmed.

Richards, J., Shenk, J., Curtis, J., and Waste, C. J., concurred.

I dissent. There is no uncertainty or ambiguity in the language of the statute under consideration, and, consequently, no occasion for judicial construction. Such statute provides that it “shall not be held or construed to apply to ... (e) any motor vehicle fuel delivered under contracts entered into prior to the fourteenth day of May, 1923 ...” The legislature may have had in mind, as contended by the attorney-general, only contracts providing a fixed price for fuel, but it has not so restricted the term, and to amend the statute by judicial construction seems to me an usurpation of legislative power which is unjustified even in the interests of public policy.

Rehearing denied June 29, 1928, and the following opinion then rendered thereon:

On petition for rehearing herein it is urged that this court has erroneously “assumed that there