Opinion No. 69-148 (1969) Ag

Cities and Towns — Tax Levies 68 O.S. 2701 [68-2701] (1968), which authorizes incorporated cities and towns to assess, levy, and collect taxes for purposes of municipal government, excepting ad valorem property taxes, did not repeal by implication 68 O.S. 503 [68-503] (1968), which specifically prohibits political subdivisions of the State from levying any excise tax on motor fuels, and 68 O.S. 503 [68-503] (1968), is another exception to the authority given incorporated cities and towns to assess, levy, and collect taxes for purposes of municipal government. The Attorney General has had under consideration your request for an opinion wherein you, in effect, ask: Did O.S.L. 1965, ch. 430, Section 1 (68 O.S. 2701 [68-2701] (1968)), which authorizes incorporated cities and towns to assess, levy, and collect taxes for purposes of municipal government, excepting ad valorem property taxes, repeal by implication O.S.L. 1963, ch. 362, Section 2 (68 O.S. 503 [68-503] (1968)), which specifically prohibits political subdivisions of the State from levying any excise tax on motor fuel? O.S.L. 1963, ch. 362, Section 2 (68 O.S.Supp. 1968 Section 503[68-503] [68-503]), provides: "No city, town, county, or other political subdivision of the State shall levy any excise tax on the sale, manufacture, distribution, consumption or use of motor fuel as hereinbefore defined.'' This statute was originally passed in 1939 in substantially the same form. O.S.L. 1939, ch. 66, Section 2. Article X, Section 20 Oklahoma Constitution provides: "The Legislature shall not impose taxes for the purpose of any county, city, town, or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes." O.S.L. 1965, ch. 430, Section 1 (68 O.S. 2701 [68-2701] (1968)), provides in pertinent part: "Any incorporated city or town in this State is hereby authorized to assess, levy, and collect taxes for general and special purposes of municipal government as the Legislature may levy and collect for purposes of State government except ad valorem property taxes. . . ." This statute was originally passed in 1963 in substantially the same form, except that "any sales tax" as well as ad valorem property taxes were excluded. O.S.L. 1963, ch. 211, Section 1. The language of sections 503 and 2701, supra, is unambiguous, and effect must be given according to the plain and obvious meaning without extrinsic construction. 82 C.JS., Statutes Section 322(2). Isaacs v. Oklahoma City, Okl., 437 P.2d 229 (1967), certiorari denied, 389 U.S. 825, 88 S.Ct. 63,19 L.Ed.2d 79 (1967). However, some construction or conciliation is necessary, in that section 2701 would permit a tax which section 503 specifically prohibits. 82 CJ.S., Statutes Section 366(a) states: "Statutes which relate to the same . . . thing, . . . or which have a common purpose are in pari materia, and it is a general rule that in the construction of a particular statute, . . . all other statutes in pari materia should be read in connection with it, as together constituting one law, and they should be harmonized, if possible." Only if the specific prohibition against cities, towns, and counties levying any excise tax on motor fuel in section 68 O.S. 503 [68-503] is construed as another exception to the authority given to incorporated cities and towns to assess, levy, and collect taxes for purposes of municipal government as set out in section 68 O.S. 2701 [68-2701] can effect be given to both statutes. In the first paragraph of the syllabus of Smith v. Southwestern Ben Telephone Co., Okl., 349 P.2d 646 (1960), the Court said. "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." (Emphasis added) It is therefore the opinion of the Attorney General that the question propounded be answered in the negative, in that O.S.L. 1965, ch. 430, Section 1 (68 O.S. 2701 [68-2701] (1968)), which authorizes incorporated cities and towns to assess, levy, and collect taxes for purposes of municipal government, excepting ad valorem property taxes, did not repeal by implication O.S.L. 1963, ch. 362, Section 2 (68 O.S. 503 [68-503] (1968)), which specifically prohibits political subdivisions of the State from levying any excise tax on motor fuels; and 68 O.S.Supp. 1968 Section 503[68-503] [68-503] is another exception, in addition to ad valorem property taxes, to the authority given incorporated cities and towns to assess, levy, and collect taxes for purposes of municipal government. (Robert D. McDonald)