The first paragraph of the majority opinion concludes with the following statement:
"The conditional sales contracts involved herein are those which have been purchased by plaintiff from automobile dealers residing in and having their places of business in Canadian county and (quoting from the brief of plaintiff in error) 'which would have been taxable in said Canadian county had said automobile dealers retained title thereto.' "
This statement in the opinion would leave the impression that plaintiff concedes that subsection (e) fixes the taxable situs of the conditional sales contracts in the county where the particular dealer resided at the time of the execution of the contracts, But this is precisely what the plaintiff denies, and it so appears from plaintiff's pleadings and its arguments contained in its briefs and made orally. Such an admission on its part could materially weaken if not wholly destroy its principal argument in this case.
Plaintiff contends that the subsection fixes the situs, not in the county where the dealer resided at the time the contract was executed, but in the county where such dealer may happen to reside or conduct a place of business on the next tax assessment day. Note the statement in the statute: "conditional sales contracts or other choses in action shall . . . be listed and assessed in the county where they would have been taxable if such merchant, dealer or agent had retained title thereto, even though the purchaser thereof may be a nonresident of such county and not have a place of business therein."
Plaintiff was a purchaser of such contracts from dealers in Canadian county. And plaintiff neither resided nor maintained a place of business there.
The taxpayers do not deny the state's power to tax the property in question. They assert, however, that subdivision (e), above, purports to delegate that power to counties where the owner of the property neither resides nor maintains a place of business, and in which the property is neither located nor has acquired a business situs, and can furnish to the owner no particular benefit in return for the taxes to be paid, all of which leaves the favored counties without those jurisdictional elements necessary to the power of taxation, and which would establish a taxable situs wholly fictitious and arbitrary and not within the scope of constitutional authority.
In my opinion the general application of subsection (e) in the manner therein provided would transgress the 14th Amendment of the Federal Constitution, as contended by plaintiff, in that it would deprive the taxpayer of his property without due process of law.
The first and fundamental element necessary to legal taxation is that of *Page 577 jurisdiction in the taxing authority. Without such jurisdiction, the levying of a tax would deprive the owner of the subject of such taxation of his property without due process of law. 61 C. J. 157, § 97. And due process requires regularity in the processes for the assessment and collection of taxes. United States v. Billings, 190 F. 359. In Liverpool, etc., Ins. Co. v. Board of Assessors, etc.,221 U.S. 346, 354, 31 S.Ct. 550, where the question of fixing the taxable situs of intangibles was considered with relation to due process, the court, speaking of such property, said:
"Being incorporeal, they can have no actual situs. But they constitute property; as such they must be regarded as taxable, and the question is one of jurisdiction."
In Great Southern Life Ins. Co. v. City of Austin, 112 Tex. 1,243 S.W. 778, the Supreme Court held as follows:
"The primary and fundamental rule is that no sovereignty or taxing district can exercise the power of taxation, except as to property actually or constructively within its jurisdiction, and this rule applies to counties and municipalities, as well as states."
Among the authorities cited as supporting that holding was 27 American English Encyclopedia of Law, p. 648, wherein it is said:
"The taxing power of the state is limited to property within the state, and all such property may generally be taxed. The same is generally true of subdivisions of the state, such as municipalities, counties, school districts, etc."
In 61 C. J. 157, section 96, it is said:
"There is no doubt, however, that the constitutional requirement of due process of law applies to tax proceedings, and that the taxing power, although not limited, must be exercised so as not to deprive any person of property without due process of law. The guaranty is only that the essentials of taxation shall be observed in the taking of property, all other matters depending on the law-making power of the state, and being subject to be varied or changed as the legislative will of the state shall see fit to ordain."
And in the same text, section 97, supra, appears the statement as follows:
"The exaction of a tax which the state is without power to impose is a taking of property without due process of law."
Among the cases cited in support of the statement is Frick v. Commonwealth of Pennsylvania, 268 U.S. 473, 45 S.Ct. 603, 69 L.Ed. 1058. The statement last quoted would include taxes exacted by a county pursuant to a statute which disregards the jurisdictional elements necessary to the power to tax.
In the Frick Case, supra, the court held as follows:
"A state must have jurisdiction over thing that is taxed, regardless of whether it is the transfer of the property on owner's death or the property itself, and to impose tax without jurisdiction is mere extortion and in contravention of due process of law."
And so must every taxing subdivision of government have such jurisdiction. The county derives its power to tax from general laws enacted by the Legislature pursuant to section 20, art. 10, of the Constitution, which provides that the Legislature shall not impose taxes for the purpose of any county, but may by general laws confer on the proper authorities thereof the power to assess and collect such taxes.
Though the state may have inherent power to tax the property here involved, if it is to legally delegate that power to a county, it must confine the county to property over which the latter has jurisdiction. A statute which wholly disregards the jurisdictional requirement and would authorize a tax regardless thereof is repugnant to due process. Subdivision (e), supra, is a statute of that character.
But the majority opinion merely brushes aside the plaintiff's contentions in this regard. It is there said that the state and not the county is the taxing district; that the state levies the tax and merely utilizes the officers of the *Page 578 county, not to levy the tax, but to determine the particular property and the value thereof to which the tax shall apply, and to collect the same, and make distribution as directed by the statute.
It is true that section 2 of the act says "there is hereby levied a tax, in lieu of the regular ad valorem taxes, on such intangible personal property at the following rates:" The rates are then designated.
Though the statute purports to levy the tax, it does not purport to impose taxes. If it did, it would be violative of section 20, art. 10, of the Constitution, above, for the tax is to be used for the purposes of the county. A portion thereof is to be applied to the county general fund. The plain purpose was to fix the rate of taxation and authorize the county to impose or assess and collect the taxes for its own purposes and make distribution thereof. Note again subsection (e) where it says that this particular kind of property shall be "listed and assessed" in the county. This is not an excise tax levied by the state, but a property tax to be listed and assessed in the county "in lieu of the regular ad valorem taxes." There is not the slightest intimation that the state intended to remove this class of property from the tax rolls of the county and place taxation powers in the state alone. Prior to this act counties of the proper situs already had power to tax these intangibles. The state has merely fixed a rate to apply in lieu of the county's regular ad valorem rate. This is not a state levy for state purposes. My opinion is that the majority opinion in this respect ignores said section 20, art. 10.
I am unable to agree with the majority statement that the plaintiff, in its argument that subsection (e) denies due process, relies entirely on the ground that the Legislature may not fix the taxable situs of this property other than at the domicile of the owner or at the place where the property may have acquired a business situs. Plaintiff's argument in this respect is based upon the fact that the statute would permit a county to tax the property without regard to any benefit to be received by the taxpayer in return for the tax, which is the first and fundamental element necessary to the jurisdiction to tax.
The power to tax is founded upon the principle that the sovereign is entitled to compensation for the protection it affords the subject of the tax. 61 C. J. 67, § 2. This theory falls when the subject of taxation can receive no benefit from the government exacting the tax.
In the text last cited it is said:
"The theory of taxation is that taxes are imposed for the support of the government in return for the general advantages and protection which the government affords the taxpayer and his property, and that where there is no such benefit, there is no power to tax."
In support of this statement are cited decisions by the courts of various states and of the Supreme Court of the United States.
The latter statement finds support in every decision known to us which involves the particular question. In Ewert v. Taylor,38 S.D. 124, 160 N.W. 797, the court quoted Cooley on Taxation, as follows:
"The burden of a tax must be made to rest upon the state at large or upon any particular district of the state according to whether the purpose for which it is levied is of general concern to the whole state, or, on the other hand, pertains only to the particular district."
Then the court said:
"To be the beneficiary of the purpose of the taxation, the property, either through itself or its owner, must have a situs within the district wherein the purpose is to be effectuated."
As said above, the situs may be actual or constructive. It must be one or the other if the property is to be benefited by the tax. If it can receive no benefit from the tax, it has no legal situs in the taxing district, and an exaction of a tax under such circumstances would deprive the owner of his property without due process of law. The question is *Page 579 one largely of territorial jurisdiction. If the property is neither actually nor constructively within the territorial limits of the taxing power, there is no jurisdiction to tax; and the Legislature cannot create a wholly fictitious and arbitrary situs. Ewert v. Taylor, supra.
In Great Southern Life Ins. Co. v. City of Austin, supra, the court said:
"We have heretofore adverted to the fundamental principle that the power of taxation could only be exercised where the property was actually or constructively situated — that is, within the jurisdiction of the taxing power. The authorities cited are all based upon this conception of the primary basis of the taxing power."
This statement appears to be correct.
And in Atlantic Coast Line R. Co. v. Amos, 94 Fla. 588,115 So. 315, it was said:
"It is essential to the power of taxation that either the owner of personal property be a resident or the property be situated within the district attempting to exercise the power to tax."
All of which means that where there is no benefit accruing to the taxpayer, there is no power to tax. The law here under consideration wholly disregards this fundamental and very essential element of jurisdiction.
The situs of intangible property is usually at the domicile of the owner, but it might become so situated as to receive protection from a government other than that of the owner's domicile and thus become taxable thereby. Grieves v. State ex rel. County Attorney, 168 Okla. 642, 35 P.2d 454. In that case the court held as follows:
"In the absence of controlling circumstances to the contrary, the general rule is that the situs of intangible property for the purposes of taxation is at the owner's domicile. . . .
"In order to constitute a business situs where intangible property is taxable other than the owner's domicile, it must be shown that possession and control of the property has been localized in some independent business or investment away from the owner's domicile so that its substantial use and value primarily attach to and become an asset of the outside business."
It is generally held, as the above case recognizes, that intangible property may acquire a business situs and become subject to taxation in a jurisdiction other than the domicile of the owner. But the court also said in that case that the mere presence of intangible property such as stocks, bonds, bills receivable, etc., for safekeeping in a county other than the owner's domicile was not sufficient to fix a taxable situs therefor away from such domicile.
I do not say that the Legislature by law may not fix the taxable situs of such property, without regard to domicile, in the county where the contracts or debentures evidencing the obligations have become permanently located. But such was not the situation in this case.
But subdivision (e), supra, would confer the power on counties to tax this character of property without regard to any of the recognized jurisdictional requirements as above set out. Jurisdiction is made wholly and exclusively dependent on the whereabouts on the next assessment day of the merchant, dealer, or agent who assigned the contract. This is made clear by the express language of the act wherein it is provided that the intangibles shall be "listed and assessed in the county where they would have been taxable if such merchant, dealer or agent had retained title thereto, even though the purchaser thereof may be a nonresident of such county and not have a place of business therein."
Thus it is seen that the place of assessment is made dependent on the residence of the assignor of the contract. It is not dependent on the residence of the purchaser, the location of the property, or the business situs thereof. A county is allowed to profit from the assessment without regard to whether it may render protection to the property or to its owner, in disregard of the very fundamental principle upon which is based the power or jurisdiction to tax. *Page 580
It is of no consequence that the assessment in some instances may fall within the county which would ordinarily have proper jurisdiction to levy the tax. The constitutionality of an act must be tested, not by what has been done under it, but by what it authorizes to be done under its provisions. 12 C. J. 786, § 219.
Here, the statute authorizes the levy and collection of a tax by counties without regard to jurisdictional requirements. Its enforcement would result in taking the property of the taxpayer without due process of law.
In all the cases examined by me I have found none that would approve a statute authorizing the levy and collection of a property tax in a jurisdiction that can furnish no protection or benefit to the taxpayer in return for the tax so collected.
The majority opinion cites and quotes many decisions and texts, but those authorities merely recognize the principle that the Legislature may exert broad powers in fixing the situs in such cases. But those powers have never been considered as unlimited. As Cooley says in the text cited:
"The Legislature may change the rule that the place of taxation is the domicile of the owner, as between different places of taxation within the state."
But the author does not say that a situs may be fixed without regard to the location of the rem, the owner, or the place of business, or the debtor.
The majority opinion quotes certain authority to the effect that the Legislature has plenary power to provide for the assessment and taxation of the intangibles of a nonresident corporation at any place it may designate, regardless of the true domicile. But this has no bearing on this case. Domicile is not controlling, and the statute does not purport to apply to none but nonresident corporations. That question is not involved.
The opinion also contains a number of quotations from 61 Corpus Juris. Those statements merely recognize the power of a Legislature to fix a situs other than the domicile of the taxpayer, such as business situs of the intangibles or the fixed situs of the tangible property given as security for the payment of the intangibles such as real estate mortgages.
And there is the case of DeGanay v. Lederer, 239 F. 568. There it was said that intangibles may be given a special or peculiar situs for taxation. But note the proviso: "if the taxing power has jurisdiction over the rem as a practical fact." I fail to see why this does not fully support plaintiff's present contention. Here the county is the taxing power by virtue of the power delegated by the Legislature. In the face of section 20, art. 10, supra, it must be so.
In my opinion, not one of the authorities cited in the majority opinion supports the conclusion there reached on this particular question, due process. Those authorities merely recognize the power of the Legislature to fix a situs other than the domicile of the owner. But none seems to lose sight of the requirement that the taxing power must have jurisdiction of the rem as a practical fact. Not one says that such jurisdiction may exist without regard to the domicile of the owner and the business situs of the property and the location of the property itself and the domicile of the obligor.
Since the majority opinion sustains subsection (e) as being in conformity with due process, and as a proper classification of property for the purposes of taxation, and as uniform taxation on the same subjects, and as not being arbitrary and unjust, and as not constituing a delegation of power by the Legislature to the county to impose taxes for use of the county, we had as well say that from now on the Legislature shall be the sole judge of whether its enactments relating to the assessment and collection of taxes are in conformity with the various constitutional provisions that heretofore have seemed to limit its powers in this respect. For, in view of the opinion, there would *Page 581 seem to remain no tangible theory or feasible argument upon which to lay hold in an effort to forestall the enforcement of that character of legislation.
For the foregoing reasons, I respectfully dissent.