I cannot agree with the majority. I believe that the income tax law of 1929 (§§ 110-1601 to 110-1638, O.C.L.A.), which the majority properly term the Property Tax Relief Act, means today the same as it has meant throughout the nineteen years it has been a part of our laws. A reading of the majority opinion cannot fail to impress one with the unvarying consistency with which the legislature, in framing its enactments, has held to the views that income tax money (1) is special purpose money; (2) can be used only for the purpose of offsetting property taxes; and (3) is paid by the taxpayer, not as an additional tax, but in lieu of other taxes. *Page 48
The majority declare that the Property Tax Relief Act contains ambiguities. Their exact words are: "We are aware of the ambiguities in the act." But it is never right to say, "I see what you mean, but, since you used ambiguities, I will disregard what you mean." Everyone has understood what the act has meant ever since it was adopted by the people in 1929. I shall presently give examples, but I first direct attention to the fact that the State Tax Commission is charged, not only with the administration of this act, but also with its construction.
I now come to instances which show that the Tax Commission has uniformly construed and administered the income tax as a property tax relief measure. In its 1935 report the Commission said (p. 49):
"Each of the three income tax measures definitely provides that all of the net revenue derived therefrom must be used exclusively to reduce the state tax on property."
The 1937 report of the Commission listed receipts from income taxes, intangible taxes and corporate excise taxes for the years 1933 to 1936, and then said (p. 5):
"As distinctly provided by law, these amounts have been applied for the respective years to offset property taxes which otherwise would have been levied, * * *."
The 1939 report (p. 21) says:
*Page 49"The three laws imposing taxes on incomes produced approximately $25,000,000 in revenue during the years 1929 to 1938, inclusive. Every cent of this sum has been applied, in accordance with the mandatory provisions of the laws, to reduce the tax on property which otherwise would have been levied * * *."
From the 1941 report (p. 12), I quote:
"The revenues produced by the taxes imposed upon or measured by net income are by express provision of law applied in the state tax levies to replace and, if possible, to eliminate the taxes which would otherwise be leviable on property."
The 1943 report (p. 12) said:
"If the distribution from the state income tax account to the school districts are used to reduce property taxes by a corresponding amount, as the title of the bill provides, the diversions would not defeat the original intent of the income tax legislation, namely, that the proceeds shall be wholly used for property tax reduction."
The 1945 report (p. 3) said:
"Income taxes, in keeping with the expressed purpose of their imposition, have been applied to offset and reduce property taxes."
The Attorney General shared the same views. In his Opinions for the period 1944 to 1946 (p. 173), it is said:
"All revenues in the state school support fund are derived from taxes on or measured by net income. The laws imposing the tax from which such revenues are derived distinctly state in each instance that the purpose of the tax is to reduce ad valorem taxes on property. Such revenues can be applied to no other purpose. Section 3, Article IX, Oregon Constitution."
It is easy to show that the legislature entertained the same views as those expressed in the above excerpts taken from the Reports of the Tax Commission and the Opinions of the Attorney General. As I have pointed out, a reading of the majority opinion shows the remarkable fidelity with which the legislature has adhered to the view that income tax money is not available *Page 50 for general purposes, but I now go on to some occurrences which extended over a period of more than ten weeks and which show clearly the legislature's interpretation of the income tax act. His Excellency, the Governor of this State, on January 13, 1947, as shown at page 273 of Senate and House Journal, in an address to the legislature, mentioned a deficit of $6,000,000 in the general fund, and then said:
"This budget deficit can be met by an amendment to the corporate excise tax law which would place those moneys in the general fund. There are funds sufficient at the present time to balance the budget as submitted and leave a slight surplus."
Note should be taken of the fact that the Governor referred to the corporate excise tax law and not to the personal income tax act. The two are companion measures, but the phraseology of the former lacks one of the restrictive clauses present in the income tax act. Notwithstanding the Governor's recommendations, the legislature did not take the course which he suggested. Ten weeks later, as shown by Senate and House Journal (p. 409), the Chief Executive addressed the legislature again. The ten weeks had been spent in large part, as is commonly known, in an effort by the legislature to solve the state's financial difficulties. In those ten weeks consideration had been given to the diversion recommended by the Governor and to the enactment of a sales tax. In his address upon this second occasion the Governor declared:
"It is quite apparent that the members of the legislature do not look with favor upon the suggested transfer of excise tax revenues sufficient to balance the general fund budget. * * * This legislature has studied long and faithfully * * *. Therefore, I feel it my duty to support the legislature in the adoption of a sales tax."*Page 51
Thus, it is seen that the legislature refused to transfer excise tax money to discharge the general fund deficit. Instead of so doing it adopted the sales tax. It is true that the Chief Executive's recommendation pertained to the excise tax surplus, but since that surplus was hemmed in with fewer restrictions than the income tax surplus, the legislative attitude toward it is significant as to the other surplus also. It is manifest from the events I just mentioned that the 1947 legislative assembly had before it the very issue which is now upon our doorstep, and resolutely adhered to its interpretation of its own legislation; that is, that the surplus produced by tax relief acts is a special fund devoted to a special purpose and not available for transfer into the general fund. It refused to take the course which the majority has embraced. Since the legislature itself wrote this legislation, it certainly knew better than we what its own words meant. The legislative interpretation of the income tax law shown by the occurrences to which I have just adverted, is doubly reinforced by an examination of the acts passed by the 1947 legislative assembly. A reading of them, especially the one mentioned in Mr. Justice BELT'S dissenting opinion, will reveal that the legislature throughout its long session uniformly avoided use of the income tax surplus for any purpose except the discharge of indebtedness which would otherwise be taxed against property.
From the foregoing we see that there is before us cogent evidence which shows clearly the legislature's own construction of the terms which compose the income tax act. In an unmistakable manner the legislature construed its own words to mean: (1) The proceeds of the income tax is a special fund; (2) income tax money can be used only to offset property taxes; *Page 52 (3) the income tax is an in-lieu-of tax; (4) income tax money cannot be diverted to defray general expenses. Clearly, respect for a co-ordinate branch of the government cannot permit us to say that we know better than it does what its words mean.
The majority refuse to give heed to the practical construction which, for nineteen years, has been placed upon the income tax statute. They state as their reason that when the construction was placed "there was as yet no serious problem concerning income tax surplus * * *. It is for this reason that the decision in this case should not be controlled by the so-called practical construction which was announced under circumstances materially differing from those which have arisen since the suspension of the income tax discount." I do not agree with that statement. I very respectfully declare that the circumstances today are not substantially different from those which were present when the long-continued practical construction was manifested and followed. For instance, in 1930, there was a deficiency levy of $2,297,866.87. The next year the deficiency was $3,091,175.10. In 1938 the surplus in the income tax account was $1,175,320.78. In the same year the deficiency was $1,126,571.30. In 1941 the income tax surplus was $2,276,964.04. The deficiency was $851,026.38. In 1942 the income tax surplus was $6,994,761.81 and the deficiency was $807,868.18. In 1942-1943 the surplus in the income tax fund was $16,109,850.16 and the deficiency was $485,692.06.
It is unnecessary to go further with figures. In 13 years since 1929 there was a deficit; in 14 years a surplus. It is obvious that the majority cannot rid the record of the long-continued practical construction of the act by saying that they were announced "under *Page 53 circumstances materially differing" from those of today.
According to 42 Am. Jur., Public Administrative Law, p. 392, § 77:
"The practical interpretation of an ambiguous or uncertain statute by the executive department charged with its administration or enforcement is entitled to the highest respect from the courts, especially when long continued and uniform, or contemporaneous with the first workings of the statute, or the enactment of the statute was suggested by such agency; and although not controlling the court's decision as to the proper construction of a statute, will not be disturbed except for very cogent and persuasive reasons."
It is apparent that the long-continued construction of the act before us by those who were charged with its administration should be adopted by us, unless we can assign cogent reasons for disregarding it. I know of no reason for disregarding it, and the majority have mentioned none.
The State Tax Commission is charged with the duty of construing the very act now before us. Section 110-505, O.C.L.A., says:
"It shall be the duty of the said state tax commission:
* * *
(5) To construe the tax and revenue laws of the state whenever requested by any officer acting under such laws, * * *
* * *
(11) To recommend to the legislative assembly, at each regular session thereof, such amendments or modifications of the constitution or laws as may seem proper or necessary to remedy injustice or *Page 54 irregularity in taxation, or to facilitate the assessment and collection of public taxes and revenues.
(12) * * *."
It is not likely that if the tax commission, instead of repeatedly following the practical construction, which it many times reiterated, had held to a different view, the legislature would have removed the so-called ambiguities upon which the majority depend to support their construction. It is no misstatement to say that the administrative interpretations of the act filled out the act itself. Those interpretations must be read concurrently with the act. Everyone knows that important administrative agencies originate legislation and are frequently consulted by the lawmakers. Those are circumstances which lend weight to administrative interpretations. The administrator, having played a part in the framing of the legislation, knows what the legislation means and undertakes to accomplish.
The majority make much of the fact that the income tax collections are deposited in the general fund. They deem that fact "significant." In 1947 Oregon Laws, page 1191, appears a financial statement of all the state's receipts and disbursements. By glancing over it, it will be seen that the state carries many accounts in the general fund; in fact, there are more than ten score of accounts totaling $202,094,941.81, all entered under the heading of General Fund. Each is a separate account, and, hence, the use of the term General Fund is of no consequence.
Article IX, Section 3, Constitution of Oregon, says:
"No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same to which only it shall be applied."*Page 55
The plaintiff depends, in part, upon that constitutional provision to establish the fact that the proceeds of the income tax act are a special fund. The majority say:
"We find it unnecessary to decide whether or not Article IX, section 3 applies to income taxes and the like, or only to property taxes. The question presently before us is not whether the legislature can pass an act diverting funds raised by income taxes from a purpose to which only they are devoted by previous legislation. If that question were here, it would be necessary to determine whether the constitutional provision applies to income taxes. The question here is whether certain income tax surplus funds have been, by statute, devoted to a special purpose only, * * *."
It seems clear that if "certain income tax surplus funds" are not "by statute, devoted to a special purpose only", the act which raised the funds, being the income tax statute, failed to comply with Article IX, Section 3, which I just quoted. The state is not entitled to take from a taxpayer even a single dollar without complying with Article IX, Section 3, which, it will be remembered, says:
"Every law imposing a tax shall state directly the object of the same to which only it shall be applied."
In other words, if the money in controversy was obtained by a statute which failed to meet that requirement, it was unlawfully obtained. When effect is given to the constitutional provision, the plaintiff's case is unanswerable, in my belief.
Let us return to the matter of the act's title. I deem the title significant, and am sure that, up to this time at least, virtually all others have so regarded it. The *Page 56 majority say: "In our opinion, the title should not be construed as if it provided that all proceeds from the income tax should be used exclusively for property tax relief." The title of the act says: "An act providing for property tax relief * * *." It mentions no other purpose. The title governs every dollar raised by the act. It is impossible to find any justification for the majority's assertion; and yet that unsupported assertion is the foot which gets in the door and opens the way for unrestricted spending.
The majority opinion, in brushing aside interpretations suggested by the plaintiff and based upon existing practices, uses phrases such as, "It would have been a simple and common procedure to have provided that", or "If it was the intent of the legislature that * * * it would have provided that." It is safe to say that there is no statute which can withstand such analysis. No statute is so well written but what a court, in the light of the experiences and practices of the ensuing years, cannot phrase it better.
Notwithstanding the majority's use of many bookkeeping figures, this case is really a simple one. It involves nothing more than statutory construction. A decision for the plaintiff would do no more than require the Tax Commission to proceed in the future in the same way it has for nineteen years.
These dissenting views will be closed with the observations that, although the income tax act has not been changed since it was enacted in 1929, except by way of strengthening it, the majority opinion now gives the act a meaning substantially different from the one that has been placed upon it from the beginning. For nineteen years all thought that it was not an additional tax, but an in-lieu-of tax. In all of that period *Page 57 everyone deemed it a tax relief act, but it is easy to see that the majority's opinion will usher in a new era of expenditures. Taxation affects everyone, and it is the uncertainty in the meaning of our tax regulations which plagues businessmen and wage earner alike. Many are driven to the tax expert. The majority opinion sweeps into the wastepaper basket the certainty which was the product of nineteen years' experience.
I dissent.