The able opinion of the CHIEF JUSTICE presents all of the considerations which lead to a conclusion that the decree of the lower court should be reversed. Far greater weight is now given to the practical construction of the statutes by the Tax Commission and other state authorities than was accorded to it in the original opinion by the then majority of the court. In view of the confusion and inconsistencies appearing in the legislative enactments, I concede that it is proper to consider the practical construction which has been adopted by governmental agencies. I differ only as to the weight which should be given to such construction.
The opinion of the present majority fails, I think, to consider and explain the statutory provisions which were declared to be highly persuasive in the original opinion of the then majority. I refer specifically to the provisions relative to the cushion account and to those which place the income tax proceeds in the general fund and then make specific transfer in each instance to a special fund for property tax reduction, leaving a surplus untransferred. Obviously, it is impossible to harmonize all of the statutory provisions. Since the reconstituted majority now deems it necessary to adhere to the construction heretofore pursued by the Commission, I bow to its superior authority.
Two other matters merit brief comment. I agree that in any event the Bingham case should not be overruled and that under the express wording of the six per cent amendment it is the amount of the levy which determines the tax base and not the lesser amount which may be extended on the tax rolls. I am of the opinion that the legislature could provide for the *Page 96 maintenance of an adequate tax base even if income tax surplus should be held to be "not applied by law to some special purpose". If in the next two years the surplus should be absorbed by the elimination of the deficit, by a rebate to income taxpayers, and (or) by a simple provision not now found in the statutes, that the surplus, if any, shall be placed in the cushion account for future property tax reduction, an adequate tax base could be established and assured. The surplus, having been disposed of or applied by statute to a specific purpose, a tax on property within the six per cent limitation could be levied and that levy be offset by income tax revenues if the legislature should so provide.
In conclusion, I fear that a laudable desire to reach a conclusion deemed by the majority to be required has resulted in a strained construction of simple language. Article XI, section 11 of the Constitution provides that unless specifically authorized by the voters, the state shall not so exercise the power of taxation as to raise a greater amount of revenue than the total amount levied (see Bingham case) in any one of the three years immediately preceding. Assuming, for the purpose of this discussion, that all income tax surplus is applied by law to a special purpose, the question remains, how can this court by mandamus require the Tax Commission to certify that "a necessity exists for levying a tax in excess of said constitutional limitation"? The question is, do the people raise revenue when they approve a levy against property, which, under the provisions of section 4, chapter 477, Laws of 1947, is never to be collected but is to be offset by income tax revenues? Such a vote in reality merely authorizes the use for a new purpose of income tax *Page 97 revenues already raised, collected and in the possession of the state. If the meaning of the Constitution Article XI, section 11 had been considered under any circumstances other than those presently confronting us, I am confident that the court would have held that the provision which prohibits the state from so exercising "that power", i.e., the "power to levy a tax" "as to raise a greater amount of revenue", etc., without vote of the people, means raising revenue by means of taxation and has no application to a proposal to allocate funds already raised to a purpose assumed to be new.
It is within the clear power of the legislature to submit a tax levy to the voters whether the election be required by the six per cent amendment or not. But the legislature has not called an election. By chapter 477 it has merely directed administrative officers to call an election under certain conditions. It has directed the Tax Commission to ascertain certain facts, and if those facts are found, to make a certificate, and if the certificate is made, then the Secretary of State is to call an election. The authority of the Commission and of the Secretary of State is limited by the terms of the statute under which alone, action is authorized. If no certificate is made, the Secretary of State has no authority to call an election. The Tax Commission has refused to make the certificate. I submit that this court should not by mandamus require the Commission to certify that a necessity exists for the levying of a tax in excess of the six per cent limitation, when the tax if levied would raise no revenue but would, at most, merely authorize the transfer of funds, and when therefore no necessity exists for a popular election under the six per cent amendment. It must be remembered that the construction of constitutional provisions is a judicial and not a legislative function. *Page 98
I recognize the force of the argument drawn from practical construction, and the scholarly presentation which has now convinced the majority of its validity. My views of the ultimate question are expressed in the original opinion. I regret that, as here indicated, I must dissent.
HAY, J., concurs in this dissent.