#### Protest of GREEN-PHILLIPS CHEVROLET CO.

No. 35376.

Supreme Court of Oklahoma.

March 17, 1953.

Bill Logan, Lawton, for plaintiff in error.

R. F. Barry, W. F. Speakman and E. J. Armstrong, Oklahoma City, for defendant in error.

CORN, Justice.

The Green-Phillips Chevrolet Company, hereinafter referred to as the Company, on September 17, 1951, made application for a certificate of title and registration of a new 1951 Model Chevrolet Automobile, by filing a verified application, towit:

> “The vehicle for which application for certificate of title is made is a new automobile. It is owned by a dealer in new -automobiles, Green-Phillips Chevrolet Company new vehicle dealer License No. 1471. It is being registered in the name of Green-Phillips Chevrolet Company for the purpose of placing it on the Company Used Car Lot in the City of Lawton, Oklahoma, pursuant to the Company’s used vehicle license No. 21504, for the purpose of offering it for sale as a used automobile.”.

The Tax - Commission refused to register and issue a certificate of title to said automobile'without the payment of the excise tax. The Company paid the excise tax under protest and sought a refund, for the amount of the excise tax paid which was denied by the Tax Commission.

The facts are that the Company is the holder of a new dealers license to sell new *978Chevrolet automobiles and also holder of a used car dealers license to sell used cars. The Company contends that it is entitled to have the car registered and certificate of title issued therefor without the payment of the excise tax, and for its authority refers to 47 O.S.19S1 § 52d, which provides:

> “An original or a transfer certificate of title shall be issued without the payment of the excise tax levied by this Act for:

> ******

> “(e) Any vehicle *legally*owned by a person licensed as a dealer in used cars or parts, under the provisions of the *Vehicle License and Registration Act,*and offered for sale by such person; * * *»

It will be necessary to examine the “provisions of the Vehicle License and Registration Act” in order to ascertain if the company can get the relief sought. See 47 O.S.1951 § 22:

> “Motor Vehicle License and Registration Act. — This Act shall be known and cited as the ‘Motor Vehicle License and Registration Act.’ ”

> Section 22.1

> “ * * * Owner. Any person owning or possessing any vehicle as herein defined.

> * * * * *if**

> “Dealer. Any person, as herein defined, who is engaged in the business of buying, selling or exchanging, new vehicles in this State and who is the holder of a valid selling agreement, franchise, or contract with the manufacturer of the type of new vehicle he offers for sale.

> “Used Car Dealer. Every person whose principal business is that of buying, selling or exchanging used vehicles, or parts thereof, in this State.

> * * * * * *

> “Used Vehicle. A vehicle which has been sold, bargained, exchanged or given away, or used to the extent that it has become what is commonly known, and generally recognized as a ‘second hand’ vehicle. This shall also include any vehicle, regardless of age, owned by any person *mho is not the holder of ■a valid selling agreement, franchise, or contract*with the manufacturer of the type of vehicle so owned or possessed.

> “New Vehicle. A vehicle which is in the possession of the manufacturer, or has been sold only by the manufacturer to the holder of a valid selling agreement, franchise, or contract, granted by the manufacturer to sell said make of new vehicle. This shall not include any vehicle owned or possessed by any person who is not the holder of a valid selling agreement, franchise, or contract with the vehicle manufacturer.”

> Section 22.1

> “Foreign Vehicle. Every vehicle brought into this State and not legally registered in this State.”

> Section 22.5

> “The license fees provided in this Act must be paid each year whether or not the vehicle is operated on the public highway.”

> Section 22.13

> “In the event a new vehicle is not registered on the date purchased, and in case a used vehicle is brought into Oklahoma by a resident of this State and is not *registered immediately,*a penalty of ten cents (103⁄81⁄8) per day will be charged from the date of purchase or the date of entry to the date of registration, such penalty to accrue for thirty (30) days, upon failure to register, at the end of which time, the penalty will be equal to the license fee due. * * * ”

> Section 22.18

> “No person shall own or have in his possession within this State after the 31st day of January each year any vehicle, unless such vehicle shall have the *current distinctive identification and number plates assigned to it by the Commission,*displayed on the front and rear of such vehicle, securely fastened as shall be prescribed by the Commission. It shall be *unlawful*for any person to *buy, sell or dispose of, or have in his possession at any time for sale,*
>       *979
>       *use or storage,*any *second, kamd*or *used vehicle*on which the Oklahoma registration or license fee has not been paid for each year, as required by law and on which vehicle said person neglects, fails or refuses to display, at all times, the current identification and number plates assigned to it. * * * *”*

> Section 22.23 Miscellaneous Offenses Enumerated. “It shall be unlawful for any person to commit any of the following acts:

> * * * * * *

> “(c) For any resident of this State to procure from another state or country, or display upon any vehicle owned or possessed by him within this State, except as otherwise provided in this Act, any license plate issued by any state or country other than the State of Oklahorria, unless there shall be displayed upon such vehicle at all times the current license plate assigned to it by the Commission.

> 3⁄8 * 5⁄8 3⁄8 * *

> “(f) To *buy, sell or dispose of,*or *have in his possession for sale, use or storage,*any *secondhand*or *used vehicle*on which the *registration*or *license fee*has not been paid, as required by law, and on which vehicle said person neglects, fails or refuses to display at all times the current identification and number plates assigned to it.

> * 3⁄8 * * * *

> “(h) To purchase identification or number plates on an assigned Certificate of Title. This particular subsection shall be applicable to all persons except bona fide registered dealers in used cars who are holders of current and valid used car dealers’ licenses.”

Section 23.6 also provides:

> “Sale or transfer of motor vehicle— Assignment of certificate. * * * The dealer shall execute and deliver to the purchaser, bills of sale on forms prescribed by the 'Commission for all new vehicles sold by him. On presentation of a bill of sale executed on forms prescribed by the Commission, by a manufacturer or dealer for a new vehicle sold in this State, accompanied by remittance in the sum of one dollar ($1.00), together with any Motor Vehicle Excise tax or license fee that may be due, a certificate of title shall be issued in accordance with the provisions of this Act.

> “Provided that every person licensed as a dealer in used vehicles or parts may register and obtain number plates for any vehicles *legally*owned and offered for sale by such person upon presentation of a *certificate of title*for such vehicle properly assigned to such dealer.”

It is plain the only way a dealer in used cars can register and obtain a number plate is to comply with the above Act, to-wit: “for any vehicles *legally*owned and offered for sale by such' person upon presentation of a *certificate ‘ of title*for such vehicle properly assigned to such dealer” which means he is required to register and pay the excise tax on any. automobile that he owns that has not been registered in Oklahoma, and if this construction is followed, it means that Oklahoma will receive an excise tax on the first registration of every vehicle in this State which would be in accordance with the language of Sec. 52b to the effect that the excise tax is due “at the time of the *transfer of legal ownership*or *first registration in this State*of such vehicle, and shall be collected by the Tax Commission at the time of the issuance of a *certificate of title*for any such vehicle.”

A person who is a new car dealer seeking to register and obtain a certificate of title to a new car must comply with 47 O.S.1951 § 23.6.

After an examination of the entire Act, we hold it was not the intent of the legislature in. enacting Sec. 52d(e) to permit the holder of a license to sell new cars, who is also the holder of a license to sell used cars, to register and obtain a certificate of title to a new car without payment of the excise tax by filing an affidavit with 'said *980Tax Commission that the new car was .going to be sold on the used car lot, as a ■used car.

Affirmed.

HALLEY, C. J., and ARNOLD, WILLIAMS and BLACKBIRD, JJ., concur.

JOHNSON, V. C. J., and DAVISON, J., dissent.