Opinion No. 59-107
August 17, 1959
TO: W. K. Aldridge, Chief Division of Liquor Control Bureau of Revenue P. O. Box 1540 Santa Fe, New Mexico
{*169} This is written in reply to your recent request for an opinion on the following questions:
1. Would the rate of $ .11 per case or carton of 24-12 ozs. be applicable to cases containing 24-11 ozs. (under § 46-7-2)?
2. If the answer to the first question is in the negative, what rate of excise tax should be applied to cases of 24-11 oz. bottles or cans?
In answer to these questions, it is my opinion that:
1. No, the $ .11 rate is not proper.
2. The rate should be $ .05 per gallon.
The statute to which you refer is § 46-7-2, N.M.S.A., 1953 Compilation, (p.s.), which reads in part as follows:
"B. On bottled or canned beer: $ 0.11 per case or carton of 24-12 ounce, 12-24 ounce bottles or cans. Other sizes, cases or cartons, at rate of 5 [cents] per gallon."
It seems clear that the $ .11 rate does not apply since from the clear words of the statute that rate applies only to 12-24 oz. and 24-12 oz. cases. These words are clear and are not susceptible to interpretation since they are not ambiguous. See Dr Graftenreid v. Strong, 28 N.M. 91, 206 P. 694.
Since the 24-11 oz. cases do not fall within the $ .11 rate, the only other rate set out in the statute is the general provision applying a $ .05 per gallon rate to all other sizes. This, then, is the rate which should be applied to cases which contain 24-11 oz. bottles or cans.