"None of the taxes levied by this act shall be construed toapply to sales made to the government of the United States or anyagency or instrumentality thereof, except a corporate agency or corporate instrumentality, nor to sales to the state of New Mexico or any of its political subdivisions; provided thatdepsoits of gold and silver with the United States' mint shallnot be considered as sales to the government of the United Statesand shall not be exempt hereunder; nor shall such taxes apply to any businesses or transactions exempted from taxation under the Constitution of the United States or the state of New Mexico." 1941 Comp., § 76-1405. (Italics added.)
The language underscored first above, denying application of the taxes levied to sales made to the government of the United States, or any agency or instrumentality thereof, is not ambiguous. It requires no construction and means what it plainly states. The prevailing opinion cannot and, indeed, does not dispute that the transaction in question is a sale. So viewed, this should end the matter and eliminate the proceeds of same from use in calculating the tax. Especially is this true since no reliance can be based on the proviso declaring "that deposits of gold and silver with the United States' mint shall not be considered as sales to the government of the United States and shall not be exempt" under the act. The prevailing opinion makes no effort to support a distinction between deposits of gold with the mint and sales to the mint, *Page 90 specifically exempted by the act itself. Indeed, it states whether the transaction is a mere deposit or a sale, "is beside the question."
The majority, willingly or not, must accept the transaction for what it is — a "sale." They even cite authority holding it is in effect a sale. Walling v. Haile Gold Mines, 4 Cir., 136 F.2d 102. They argue, however, that in as much as this is not strictly a sales tax but rather a privilege tax, it can be sustained even though the amount of the tax is augmented by sales to an agency or instrumentality of the United States. Since the function of the sale as one merely to augment the amount of the tax and the character of the tax as one for the privilege of carrying on the business of mining, both were well known to the legislature, why then was the language first underscored above placed in the act? It was an idle gesture to do so if its plain mandate may be avoided in the manner employed by the majority.
Of course, this language of immunity was incorporated to avoid the patent constitutional objection that one sovereignty may not tax another, its agencies or instrumentalities, without the other's consent. If the act does the very thing the questioned language was designed to prevent, then does not the statute again become subject to the constitutional barrier it was employed to surmount? Obviously so.
The language of the proviso was added by amendment in 1941, L. 1941, c. 133, § 1, in an apparent effort to take away the immunity given in so far as the same might arise from a sale of gold or silver. The identical language of this immunity as found in L. 1934 (Sp.Sess.) c. 7, § 202, was construed in Gallup American Coal Co. v. Beall, 39 N.M. 188, 43 P.2d 927. The act was a predecessor of L. 1935, c. 73, and imposed a privilege tax on mining companies as well as other persons and corporations for the privilege of doing business. The same contention was made there as here, namely that since the tax is upon the privilege of carrying on business and not upon the sale, the immunity claimed is untenable. The court ruled against this contention and, among other things, said:
"Here is a plain provision that none of the taxes levied by the act (including certainly the tax of one-fourth of one per cent. on the gross receipts of coal mining) shall apply to sales made to the government of the United States, or any of its departments or agencies. Yet it is claimed by the state that in order to interpret this provision we must first determine the exact character of this excise; that we will find it not to have been laid upon any sale, nor upon gross receipts, but upon the privilege or business of coal mining; and that consequently the exempting language is inappropriate and inapplicable. * * * *Page 91
"This comprehensive revenue measure may in some of its incidents be a variance from the simple sales tax. When strict classification shall be called for, we may put it or parts of it in other category or categories. Its dominant feature, however, as to those who sell, is that for each sale there is an accession of revenue. Whether we consider the particular language used orthe intent to be gathered from the nature of the tax, we concludethat sales to agencies of the United States are not to beincluded in the aggregate gross receipts upon which the tax is tobe computed.
"We therefore find appellant's first claim of error to be well taken." (Italics added.)
The majority notice this case and obviously overrule it in the opinion filed. They attempt to justify the contrary holding by asserting that the statute there construed has since been materially amended. They are challenged to point out a single respect in which it has been amended, material to the present controversy. The legislative fiat carried in L. 1941, c. 133, § 1, 1941 Comp. § 76-1405, declaring a sale to the government shall not be deemed a sale — certainly, this cannot be intended as the "material" amendment spoken of. If so, it is wholly inocuous.
Transparency of the majority's effort to impute a state of indecision to the legislature as to whether the transaction involved constitutes a sale; and to explain the statutory declaration it was not to be deemed a "sale" as a mere legislative resolving of a doubtful question, readily appears when we read the cases cited to support the speculation indulged, namely, Holland v. Haile Gold Mines, D.C., 44 F. Supp. 641, and Fox v. Summit King Mines, D.C., 48 F. Supp. 952. An examination of these cases discloses a holding that the acquisition of the gold by the government, if deemed a commercial transaction at all, would appear to be an "administrative act" of the government rather than a "shipment in commerce" by the defendant mining company. In other words, the court was concerned in determining whether the Company, engaged in gold mining in South Carolina, in sending its gold where the government might direct, as required by the Gold Reserve Act, was "engaged in interstate commerce" — not, as the majority would seek to persuade, whether the transaction, when completed, constituted a "sale."
The prevailing opinion cites and places some reliance upon the case of Arizona State Tax Commission v. Frank Harmonson Co. Metal Products, 63 Ariz. 452, 163 P.2d 667, 669. That the Supreme Court of Arizona in its opinion in this case, considered our holding in Gallup American Coal Co. v. Beall, supra, definitely opposed to theirs in the case mentioned, is demonstrated *Page 92 by the following language in its opinion, to-wit:
"Under provisions similar to our statute, the supreme court of New Mexico came to the conclusion that the proceeds of sales to the United States, as reflected in the gross income of the taxpayer, should be eliminated for tax purposes. Gallup American Coal Co. v. Beall, 39 N.M. 188, 43 P.2d 927. We are not impressed with the reasons stated in that case in support of the conclusion."
Plainly, the Arizona court does not approve of our reasoning in the Beall case. It is needless to add that in reaching the conclusion we did in that case we rejected the reasoning relied upon by it in the case just quoted from. Seemingly, the majority in the case at bar have been persuaded to give the reasoning of the Arizona case a belated acceptance. It is worth mentioning that the opinion of a California Court of Appeals in M.G. West Co. v. Johnson, 20 Cal. App. 2d 95, 66 P.2d 1211, accords with the opinion of this court in Gallup American Coal Co. v. Beall, supra. Cf. Albuquerque Broadcasting Co. v. Bureau of Revenue,51 N.M. 332, 184 P.2d 416; Landis v. Ormsbee, 51 N.M. 358,184 P.2d 433.
If the mere circumstance that the tax involved is a privilege tax imposed for engaging in business in New Mexico could make any difference, as already indicated, it was known to the legislature to be such when it incorporated the language exempting application of the tax to sales "made to the government of the United States or any agency or instrumentality thereof," etc. Accordingly, it was a futile and meaningless thing to employ such language if its effect was to be nullified by some magic inhering in its designation as a "privilege" tax.
"To use the number of gallons (of gasoline) sold the United States as a measure of the privilege tax is in substance and legal effect to tax the sale." (Emphasis mine). Panhandle Oil Company v. Mississippi, infra.
Nor is the immunity thus granted in any way qualified in scope by the absence of injury in the application of the tax to sales to the government of the United States or its agencies. If the legislature had intended thus to restrict the exemption extended, it would have employed language appropriate to that end. The only exception is sales to "a corporate agency or corporate instrumentality" of the United States — not sales to the United States, "if injured" thereby. It is worthy of note, too, that decisions of the United States Supreme Court place no such limitation on the immunity of the United States, its agencies and instrumentalities, from state taxation by confining it to cases where injury to the sovereign taxed can be shown. The decisions simply hold the sovereign, its agencies and instrumentalities, shall not *Page 93 be taxed. Panhandle Oil Company v. State of Mississippi, 277 U.S. 218, 48 S. Ct. 451, 453, 72 L. Ed. 857. See, also, annotations of questions involved in 56 A.L.R. 587, supplemented in 140 A.L.R. 621.
In my opinion the judgment should be reversed and the cause remanded with a direction to the trial court to award recovery of the amount of the tax paid under protest and for further proceedings not inconsistent with the views herein expressed. Convinced, as I am, that the amount of appellant's tax may not be augmented by including in the calculation of same the proceeds of sales of gold to the United States' mint, I withold opinion on several other questions resolved in the majority opinion and interposed by appellee as obstacles to recovery by appellant of the tax paid.
I dissent.
McGHEE, J., concurs.