{ "id": 5360737, "name": "GIBBONS & REED COMPANY and Boyles Bros. Drilling Co., a joint venture, d/b/a Azotea Contractors, Plaintiff-Appellant and Cross-Appellee, v. BUREAU OF REVENUE of the State of New Mexico, F. A. Vigil, Commissioner, and Nestor S. Gallegos, Director of Collection and Enforcement, Defendants-Appellees and Cross-Appellants", "name_abbreviation": "Gibbons & Reed Co. v. Bureau of Revenue", "decision_date": "1969-08-04", "docket_number": "No. 8745", "first_page": "462", "last_page": "465", "citations": [ { "type": "official", "cite": "80 N.M. 462" }, { "type": "parallel", "cite": "457 P.2d 710" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "377 P.2d 953", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5348435 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0280-02" ] }, { "cite": "71 N.M. 280", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348435, 5346789 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0280-02", "/nm/71/0280-01" ] }, { "cite": "72 N.M. 217", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2852886 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/72/0217-01" ] }, { "cite": "74 N.M. 613", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804016 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0613-01" ] }, { "cite": "163 Kan. 458", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 488888 ], "weight": 2, "year": 1947, "opinion_index": 0, "case_paths": [ "/kan/163/0458-01" ] }, { "cite": "96 S.W. 707", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "120 Mo.App. 335", "category": "reporters:state", "reporter": "Mo. App.", "case_ids": [ 1537322 ], "opinion_index": 0, "case_paths": [ "/mo-app/120/0335-01" ] }, { "cite": "113 P. 810", "category": "reporters:state_regional", "reporter": "P.", "year": 1911, "opinion_index": 0 }, { "cite": "16 N.M. 154", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4685207 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/nm/16/0154-01" ] }, { "cite": "63 N.M. 185", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2778174 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/63/0185-01" ] }, { "cite": "120 N.E. 89", "category": "reporters:state_regional", "reporter": "N.E.", "pin_cites": [ { "page": "91" } ], "opinion_index": 0 }, { "cite": "224 N.Y. 60", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 85741 ], "opinion_index": 0, "case_paths": [ "/ny/224/0060-01" ] } ], "analysis": { "cardinality": 534, "char_count": 7627, "ocr_confidence": 0.693, "pagerank": { "raw": 2.594559853584366e-07, "percentile": 0.8189350035465388 }, "sha256": "a710a4d6d76ee449e527058c09077d5557e0a4d13fc7ddbbfd91b99fb15807d7", "simhash": "1:1dd494a7707d9db1", "word_count": 1244 }, "last_updated": "2023-07-14T15:41:23.226975+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "NOBLE, C. J., and MOISE, J., concur." ], "parties": [ "GIBBONS & REED COMPANY and Boyles Bros. Drilling Co., a joint venture, d/b/a Azotea Contractors, Plaintiff-Appellant and Cross-Appellee, v. BUREAU OF REVENUE of the State of New Mexico, F. A. Vigil, Commissioner, and Nestor S. Gallegos, Director of Collection and Enforcement, Defendants-Appellees and Cross-Appellants." ], "opinions": [ { "text": "OPINION\nTACKETT, Justice.\nThis action was brought in the District Court of Santa Fe County, New Mexico, against the Commissioner of Revenue for a refund of compensating or use taxes paid under protest. Upon a trial without a jury, the trial court granted judgment for plaintiff in the sum of $5,629.56, and judgment for defendant in the sum of $290.89 for additional taxes owed by plaintiff.\nPlaintiff attempted to recover the sum of $20,518.90 paid under protest to the Bureau of Revenue under an assessment made January 31, 1965. Plaintiff alleged three general grounds for recovery of the amounts paid under protest, only one of which is pertinent in this appeal, being:\n\u201cThat $6,466.84 of the assessment was on railroad equipment of a type exempt from taxation under Section 72-17-4(1), N.M.S.A., 1953 Comp.\u201d\nSection 72-17-4(I), N.M.S.A., 1953 Comp., exempts from taxation:\n\u201cAll railroad locomotives, tenders and cars, railroad bridge materials and rails, including all repairs and replacements thereto, procured or purchased for use or consumption in railroad transportation; and\u201d (Emphasis added).\nPlaintiff is engaged in the construction of Azotea Tunnel in New Mexico and Colorado. In the excavation, there is used a piece of equipment known as a \u201cmole,\u201d which weighs approximately 100 tons, in order to move ' employees and supplies in and out of the tunnel and to remove excavated material from the tunnel. Plaintiff, at the time of filing of the complaint, had constructed approximately 5.6 miles of two-parallel lines of 70-pound-railroad rail mounted on cross ties. Upon these rails are driven 15-ton locomotives, operated either by electric batteries or diesel fuel, which pull various types of cars in and out of the'tunnel, such as muck, gunnite, concrete, and man-trip cars to haul personnel.\nDefendant assessed against plaintiff a tax of 3%, or $6,466.84, on the above-described-railroad equipment.\nDefendant contends that plaintiff was not engaged in railroad transportation and, therefore, was not exempt under the provisions of \u00a7 72-17-4(I), supra. With this we agree as, in our view, \u00a7 72-17-4(I), supra, applies only to railroads en.gaged in the transportation of persons or property for hire on established lines.\nBlack\u2019s Law Dictionary at 1424 (Rev\u2019d 4th Ed. 1968), defines \u201crailroad\u201d as:\n\u201c* * * An enterprise created and operated to carry on a fixed track passengers and freight, or passengers or freight, for rates or tolls, without discrimination as to those who demand transportation. Bradley v. Degnon Contracting Co., 224 N.Y. 60, 120 N.E. 89, 91. * * *\u201d\nTo hold that the equipment referred to in the instant case is a \u201crailroad\u201d within the purview of \u00a7 72-17-4(1), supra, would be stretching the statute to the breaking point, which we do not choose to do.\nThis court has heretofore interpreted tax laws and exemptions. In McKee, General Contractor, Inc. v. Bureau of Revenue, 63 N.M. 185, 315 P.2d 832 (1957), we said:\n\u201cIt is settled in this State that a statute of exemption from taxation must receive a strict construction, and no claim of exemption should be sustained unless within the express letter or the necessary scope of the exempting clause. * * *\u201d\nThis court interpreted the meaning of the word \u201crailroad\u201d in legislative enactments in Atchison, Topeka and Santa Fe Railway Company v. Citizens Traction and Power Company, 16 N.M. 154, 113 P. 810 (1911), where Riggs v. Railroad, 120 Mo.App. 335, 96 S.W. 707, was quoted with approval as follows:\n\u201c* * * \u2018Indeed, it is a rule universally approved, that the meaning of the word \u201crailroad,\u201d when employed in a legislative enactment can only be determined by reference to the context of the act and the manifest intention of the legislature * * *.\u2019 \u201d\nSee also, Natural Gas Pipeline Co. of America v. State Commission of Revenue and Taxation, 163 Kan. 458, 183 P.2d 234 (1947).\nIn our view, the legislature did not intend the tax exemption allowed in \u00a7 72-17-4(I), supra, to apply to industrial rail equipment of the type used in the Azotea Tunnel.\nThe failure to make specific findings of fact is regarded as a finding against the party having the burden of establishing that fact. Brundage v. K. L. House Construction Company, 74 N.M. 613, 396 P.2d 731 (1964); Hoskins v. Albuquerque Bus Company, 72 N.M. 217, 382 P.2d 700 (1963); and Griego v. Hogan, 71 N.M. 280, 377 P.2d 953 (1963).\nWe cannot agree with plaintiff\u2019s contention, that it was fatal error when the trial court failed to conclude as a matter of law, one way or the other, on the tax liability. The trial court reached a correct result in refusing plaintiff\u2019s requested findings and conclusions on the exemption point under \u00a7 72-17-4(I), supra.\nWe now turn to the cross-appeal, in which the only issue is whether the \u201cmole\u201d is a vehicle of a type not required to be registered under \u00a7 64-3-2. N.M.S.A., 1953 Comp. This is material because \u00a7 72-17-3, N.M.S.A., 1953 Comp. (repealed by Ch. 47, \u00a7 22, N.M.S.L.1966, effective July 1, 1967) provided for a reduced rate of compensating or use tax than would otherwise be applicable on vehicles of a type not required to be registered under \u00a7 64-3-2, supra.\nCross-appellant is designated as \u201cdefendant\u201d and cross-appellee as \u201cplaintiff.\u201d\nDefendant contends that the \u201cmole\u201d is not a vehicle and does not meet the statutory requirements of \u201cspecial vehicle equipment\u201d under the Motor Vehicle Code. The trial court found that the \u201cmole\u201d falls within the qualifications of \u201cspecial vehicle equipment\u201d under \u00a7 64-3-2, supra. With this we cannot agree, as \u00a7 64-1-12, N.M.S.A., 1953 Comp., defines \u201cspecial mobile equipment\u201d as follows:\n\u201cEvery vehicle not designed or used primarily for the transportation of persons or property and incidentally operated or moved over the highways, including farm tractors, road construction or maintenance machinery, ditch-digging apparatus, well-boring apparatus, and concrete mixers. The foregoing enumeration shall be deemed partial and shall not operate to exclude other such vehicles which are within the general terms of this section.\u201d\n\u201cVehicle\u201d is defined in \u00a7 64-1-6(a), N.M.S.A., 1953 Comp., 1967 Pocket Supp., as follows:\n\u201c \u2018Vehicle\u2019 means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks;\u201d\nThe \u201cmole\u201d cannot be classified as a vehicle under our Motor Vehicle Code because it is not a device upon, or by which, persons or property may be transported upon a highway.\nNeither is it \u201cspecial equipment\u201d as defined in \u00a7 64-1-12, supra, because aside from its not being a vehicle as defined in \u00a7 64\u20141-6(a), supra, it is not one of the vehicles specified in the section, nor does it come within the general descriptive terms as set forth in \u00a7 64\u20141-12, supra.\nThe decision of the trial court on the main appeal is affirmed and it is reversed on the cross-appeal, with instructions to proceed in a manner consistent with this opinion.\nIt is so ordered.\nNOBLE, C. J., and MOISE, J., concur.", "type": "majority", "author": "TACKETT, Justice." } ], "attorneys": [ "Standley, Kegel & Campos, Santa Fe, for appellant.", "James A. Maloney, Atty. Gen., Gary O. O\u2019Dowd, Deputy Atty. Gen., Justin Reid, Asst. Atty. Gen., Santa Fe,- for appellees." ], "corrections": "", "head_matter": "457 P.2d 710\nGIBBONS & REED COMPANY and Boyles Bros. Drilling Co., a joint venture, d/b/a Azotea Contractors, Plaintiff-Appellant and Cross-Appellee, v. BUREAU OF REVENUE of the State of New Mexico, F. A. Vigil, Commissioner, and Nestor S. Gallegos, Director of Collection and Enforcement, Defendants-Appellees and Cross-Appellants.\nNo. 8745.\nSupreme Court of New Mexico.\nAug. 4, 1969.\nStandley, Kegel & Campos, Santa Fe, for appellant.\nJames A. Maloney, Atty. Gen., Gary O. O\u2019Dowd, Deputy Atty. Gen., Justin Reid, Asst. Atty. Gen., Santa Fe,- for appellees." }, "file_name": "0462-01", "first_page_order": 518, "last_page_order": 521 }