Walker v. Bedford

Mr. Justice, Butler,

dissenting.

I am of the opinion that the act of 1933 can be, and therefore should be, sustained as a valid exercise of the police power.

1. If the tax were a property tax, the act would violate section 3 of article-10 of the Constitution, which requires uniformity, and would be void. But it is an excise tax, not a property tax. While the act does not contain regulatory provisions, it repeatedly refers to and ties up with the Uniform Motor Vehicle Act of 1931, which imposes a fee- for the use of the highways and concededly is a valid imposition of an -excise tax. The purpose of the *409act of 1933, clearly expressed, is to increase the fees required by the act of 1931; in other words, to increase an excise tax for the use of the highways, not to levy a property tax. The act expressly confines the tax to motor vehicles intended to be operated upon the highways of the state. Other motor vehicles are not affected. The acts, being in pari materia, should be construed together. The act of 1931 contains elaborate regulatory provisions, and as the act of 1933 was intended merely to supplement that act by increasing the excise tax, it was. unnecessary to repeat such regulatory provisions. Construing the two acts together, they impose taxes, not upon automobiles, but upon the privilege of using the highways of the state. Such taxes unquestionably are excise taxes. In the act of 1931 the amount of the fee charged is to be determined by the weight of the vehicle and other considerations. The act of 1933 requires an added fee, the amount thereof depending upon the value of the vehicle. The fact that the amount of the charge depends upon such value does not make the act a property tax as distinguished from an excise tax. Opinions of the Justices, 250 Mass. 591, 148 N. E. 889; Storaasli v. Minnesota, 283 U. S. 57, 51 Sup. Ct. 354. In Cooley on Taxation (4th Ed.) p. 3382, it is said: “If a tax is in its nature an excise, it does not become a property tax merely because proportioned in amount to the value of the property used in connection with the occupation or act taxed. ’ ’ One-half of the fees paid under the act of 1931 goes to the state highway fund, to be expended under the direction of the state highway department for the construction, maintenance and improvement of the state highways, and the other half goes to the treasurers of the several counties, to be expended under the direction of the board of county commissioners for the construction, maintenance and improvement of the county roads and bridges. The additional fees paid under the act of 1933 go to the treasurers of the several counties, to be expended under the direction of the boards of county commissioners “for work relief and direct re*410lief of the unemployed, and for the purpose of removing destitute citizens from direct relief to work relief.”

It is contended that'the provision just quoted indicates that the tax is a revenue tax, and that the governor ’s proclamation and the title to the act support the contention. Among’ the purposes for which the special session was called is this: “ * * * to provide funds' by loan or otherwise for the financing- of direct relief, or work relief, or both, during- the period of the emergency.” The title of the act is “An act to provide additional emergency relief funds by the imposition of additional fees upon the registration of motor vehicles * * * during- the remainder of the year 1933 and during the year 1.934 * * ” Under the police power, excise taxes may be levied for the purpose of constructing, maintaining and improving the public highways. During the present unprecedented financial depression the federal and state governments have adopted vast public-works programs to relieve the distress of the unemployed. In Colorado the work relief has taken the form of the construction, maintenance and improvement of the public highways; so much so, that here “work relief” and “road work” are practically synonymous. It is altogether probable that, in providing for the use of the funds raised by the additional tax, the legislature used the words “work relief” as synonymous with “road work.” If the expenditure of the proceeds in road work is necessary to save the act from being a revenue act and therefore unconstitutional, we should assume that the legislature intended the proceeds to be so used. If words are capable of two constructions, both reasonable, one bringing a statute into harmony with the Constitution, and the other bringing the statute into conflict with the Constitution, or raising a doubt concerning its constitutionality, the courts should adopt the former construction. The construction suggested above is not strained or unreasonable and should be adopted by the court. On former occasions the court has resorted to broad, liberal construction. Take the case of Board of-*411County Commissioners v. San Luis Valley Masonic Association, 80 Colo. 183, 250 Pac. 147, as an example. Section 5, article 10, of the Constitution and section 7198, Compiled Laws, provide: “Lots, with the buildings thereon, if said buildings are it,sed * * * for strictly charitable purposes * * * shall be exempt from taxation.” After providing for this and other exemptions, the Constitution (section 6, article 10), to emphasize such limitation upon exemptions, declares that “all laws exempting from taxation, property other than that hereinbefore mentioned shall be void.” The association owned a tract of land, containing 160 acres and known as Masonic Park, in Rio Grande county. On it are located three buildings; the association building, the caretaker’s building and the Order of the Eastern Star building. The association leased certain lots to individual Masons for the erection of summer lodges or cottages, the association retaining “for such leasehold interest” $25 per lot. The three building’s described above, and the grounds, are used “as a fraternal, pleasure, recreation and health resort; for individual Masons and their families from any part of the world, and for their recreation and health, comfort and happiness, and used exclusively for the purposes mentioned.” Out of the dues, fees and donations of the members of several Masonic lodges are paid the expenses of operating’ and maintaining’ those lodges, and the remainder is used in charitable work. That work is described in the stipulation of facts, but it does not appear that such work is carried on in the association’s building’s, or elsewhere, in the park. In the articles of incorporation it is said “that the business and object for which the association was formed was to promote social intercourse among themselves and associates, and to acquire, hold and convey real estate and personal property, to borrow money for the purposes of improving their property and to have and maintain in the county of Rio Grande, for the use of themselves and other associates for the purposes mentioned, an association or *412club house with all the appurtenances and belongings, and matters and things of a club or association, as usual thereto.” Giving a, liberal construction to the foregoing-provisions of the Constitution and the statute, the court held that the property is used “strictly for charitable purposes ’ ’ within the spirit and meaning- of the Constitution and the statute. If the court can apply such a broad and liberal, not to say generous, construction in such a case, what justification is there for resorting to a narrow, illiberal construction where, by reason of unparalleled economic conditions, the public peace, order and safety are endangered and the processes of orderly government are imperiled? Why “swallow a camel” in that case and “strain at a gnat” in this?

Regulatory excise taxes are levied, not under the taxing power, but under the police power, which, according to the highest court in the land, “is inherent in every sovereignty” (Lake Shore & M. S. Ry. Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565), and “is the least limitable of the exercises of g-overnment” (Hall v. Geiger-Jones Co., 242 U. S. 539, 37 Sup. Ct. 217; Sligh v. Kirkwood, 237 U. S. 52, 35 Sup. Ct. 501). Indeed, that great court has said that “it is elementary that the due process clause of the Fourteenth Amendment does not restrain the states in the exercise of their legitimate police power.” Pacific Gas & E. Co. v. Police Court, 251 U. S. 22, 40 Sup. Ct. 79. And see Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, and Jones v. City of Portland, 245 U. S. 217, 38 Sup. Ct. 112.

While emergencies never justify the suspension of any of the provisions of the Constitution (Ex parte Milligan, 4 Wall. 2), they may and sometimes do justify regula,tions under the police power that would not be permissible in the absence of an emergency. Wilson v. New, 243 U. S. 332, 37 Sup. Ct. 298; Block v. Hirsh, 256 U. S. 135, 41 Sup. Ct. 458; Marcus Brown Co. v. Feldman, 256 U. S. 170, 41 Sup. Ct. 465; Levy Leasing Co. v. Siegel, 258 U. S. 242, 42 Sup. Ct. 289; Chastleton Corporation *413v. Sinclair, 264 U. S. 543, 44 Sup. Ct. 405. The Wilson case, supra, involved the Adamson law, fixing wages to avert a, strike that menaced the public health and safety. In the Block ease, supra, a lease provided that at the expiration of the term the lessee would surrender possession to the lessor. After the lease in question was executed a temporary act was passed by Congress' in 1919 to curb- profiteering’ by landlords, such profiteering* having grown to menacing’ proportions. It provided, among other thing’s, that a tenant’s right of occupancy should, at his option, continue notwithstanding the expiration of his term, subject to regulations by a commission, so long as the tenant paid the rent and performed the conditions fixed by his lease or as modified by the commission; with certain reservations not involved in the case. It was held that that provision was constitutional; that the exigency clothed the letting of the building with, a public interest so great as to justify the regulation under the police power while such exigency lasted. The court remarked that, “A limit in time', to- tide over a passing trouble, well may justify a lacw that could not be upheld as a permanent change.” In the Marcus Brown case, supra, the court held that a similar statute passed in 1920 by the New York Legislature did not deprive the landlord of rights under the Fourteenth Amendment or the Contract Clause of the Constitution, although “the lease was executed before and expired soon after the date of the legislation and the landlord before the enactment had entered into a new lease with a third party to go into effect shortly after the expiration of the old one.” The congressional act of 1919, involved in the Block case, supra, was continued in force by subsequent legislation until May 22,1922, when another act attempted to- continue the regulations until May 22, 1924. In the Chastleton case, supra, the court took judicial notice of the fact that the emergency no longer existed, and held, therefore, that the act was unenforceable, remarking that, “A law depending upon the existence of an emergency or other certain *414state of facts to uphold it may cease to operate if the .emergency ceases or the facts' change even though valid when passed.”

The governor, in his proclamation, stated that “the present nation-wide economic depression has created a serious emergency in this state due to widespread unemployment and consequent indigence and dependence of a larg-e portion of the people of this state”; that “the increasing inadequacy of federal, state and local relief funds to relieve the situation has resulted in existing and ever threatening deprivation of thousands of families and individuals in this state of the necessities of life”; that “because of the conditions aforesaid, distress and hunger exist among our people in such a degree that the public peace, order, tranquillity and safety are seriously affected and endangered and the processes of orderly government itself imperiled; that * * * it is imperative that legislation be enacted immediately to allay the present widespread public discontent and social unrest; to defend the state; to relieve the needy and destitute citizens of this state from want and deprivation by the provision of direct relief or work relief, or both; to cooperate with the federal government in its program of national recovery; to prevent disaster in this critical emergency.” Statements showing a critical emergency were made by the legislature in the act under consideration. In the Block case, supra, the court said: “No doubt it is true that a legislative declaration of facts that are material only as the ground for enacting a rule of law, for instance, that a certain use is a public one, may not be held conclusive by the courts. * * * But a declaration by a legislature concerning* public conditions that by necessity and duty it must know, is entitled at least to great respect. In this instance Congress stated a publicly notorious and almost world-wide fact. That the emergency declared by the statute did exist must be assumed, and the question is whether Congress was incompetent to meet it in the way in which it has been met by most of *415the civilized countries of the world.” Those words are applicable here.

In view of the fact that, in order to relieve the financial distress of thousands of unemployed in this state, extensive projects for the construction, maintenance and improvement of highways are contemplated; that such work will necessitate the expenditure of large amounts of money; and that motor vehicles are practically the only vehicles used upon the public highways — I do not believe that, in the absence of evidence from which unreasonableness may be inferred — and there is no such evidence — we can say that the total amount of excise taxes imposed by the two acts is an unreasonable charge for the use of the highways.

The right to impose the excise tax to raise funds for direct relief, if that means a dole, probably could not be sustained if that were the principal purpose of the act; but it is clear that the principal purpose of the act is to impose an excise tax for the use of the highways, the proceeds to be expended upon the highways, and that the provision for direct relief is merely incidental. An excise tax is not to be held void merely because it incidentally raises revenue. Ard v. People, 66 Colo. 480, 182 Pac. 892.

2. The act does not offend against the uniformity provision (§3, art. 10) of the Constitution. That provision does not apply to excise taxes. Ard v. People, supra; Denver City Ry. Co. v. City of Denver, 21 Colo. 350, 41 Pac. 826.

3. Nor does the act impose double taxation. State v. Zimmerman, 181 Wis. 552, 196 N. W. 848; Alaska Consolidated Canneries v. Alaska (C. C. A.), 16 Fed. (2d) 256.

4. The majority opinion holds that the act of 1933 imposes a direct property tax for the sole purpose of raising revenue for the support of the needy and destitute, that the duty of supporting such persons rests upon the counties, and therefore that the act violates section 7 of article 10 of the Constitution, which forbids the legisla*416ture to impose taxes “for the purposes of any county”; but, as I have shown, the act does not impose a property tax to raise revenue for that purpose-, but an excise tax.

(a) In my opinion, section 7 of article 10, supra, has no application to excise taxes. For twenty years that has been the legislative construction. In the motor vehicle acts of 1913, 1919 and 1931 one-half of the net proceeds derived from the excise tax was. allotted to the counties for highway purposes. During* all that time the executive officers' charg*ed with the duty of enforcing* those- statutes g*ave them that construction. That is not conclusive, of course, but “the practical construction given to a statute by the public officers of the state, charged with the performance of public duties in connection therewith, is always entitled to- consideration, in cases of doubt. ’ ’ In re Leasing of State Lands, 18 Colo. 359, 32 Pac. 986. This court has given an intimation with reference to the question, if it has not actually decided it. In Altitude Oil Co. v. People, 70 Colo. 452, 202 Pac. 180, the motor vehicle act of 1919 was challenged. One ground of objection was that the provision that 50 per cent of the net proceeds should go to- the several counties, to- be credited to the road fund of the counties, violated section 7, article 10, supra. The objection was presented by the assignments of error and was vigorously argued in the briefs. After holding* that the tax was not a property tax, but an excise tax, we said: “Having determined that this is an -excise tax, we- need not consider the other constitutional questions raised, which are based upon the assumption that it is a property tax.” In City of Denver v. Knowles, 17 Colo. 204, 30 Pac. 1041, the defendant, to defeat a statute, invoked section 7, article 10, supra, and also section 3, article 10, requiring “all taxes” to be uniform. Referring particularly to section 3, we said: “Local assessments' are- upheld upon the theory that the property against which the assessment is made- is specially benefited by the improvement, while taxes refer more particularly to those burdens imposed for revenue. There *417is certainly reason for saying- that the word ‘tax,’ when used in the Constitution, refers to the ordinary public taxes, and not to the assessments for benefits in the nature of local improvements.” In Milheim v. Moffat Tunnel District, 72 Colo. 268, 211 Pac. 649, Mr. Justice Allen, in his concurring- opinion, g-ave the above quotation from the Knowles case, and added (p. 293): “The court there applied its reasoning to section 3, of article X, which relates to uniformity of taxation, but the reasons apply as well to section 7.” I concur in that statement. In Denver City Ry. Co. v. City of Denver, supra, referring to section 3, article 10, supra, we said (p. 353): “It seems to be almost universally accepted that this, and like constitutional provisions, refer to the levy of ad valorem taxes upon property, and do not apply to taxation imposed on privileges and occupations. * * * Burroughs on Taxation (sec. 54), referring" to the same subject, says: ‘These provisions, as a general rule, are held to apply to property alone, and not to include taxation on privileges or occupations.’ ”

(b) If we assume, for the purpose of the argument, that section 7, article 10, does apply to excise taxes, it does not invalidate the act of 1933, for the legislature did not levy the excise tax for county purposes. It is a matter of general notoriety that the financial distress now existing is so great and widespread that counties are wholly unable to cope with the situation, and that the relief of the poor has ceased to be a mere county matter and has become a matter of state, and even national, concern, calling for and justifying" relief action by both state and nation. As we have seen, the form that work relief has taken in Colorado is principally road work, which was contemplated by the legislature in passing' the act in question. That the cost of such work may be paid out of the excise taxes levied by that act has been shown in another part of this opinion.

5. When the Constitution of the United States was adopted there were those, both here and abroad — especial*418ly abroad — who prophesied an early end to the government because’, it was said, written constitutions are rigid and cannot be adapted to changing conditions. But in a series of great opinions, Chief Justice Marshall, by a broad, liberal construction, demonstrated the adaptability of the Constitution to changing conditions, and thereby made it possible for the government to function and to accomplish, even in times of great emergency, the purposes for which governments are created and that alone justify their existence. History teaches us that when any government has proven unwilling’ or unable to accomplish those purposes, it has ceased to exist. The adaptability of the Constitution to changed conditions is what insures its continued existence. The Preamble to the federal Constitution declares that the Constitution is •established to “establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity.” The Preamble to the state Constitution has a similar provision. Courts have not permitted those purposes to^ be defeated by narrow, illiberal constriiction. In Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, the court said: “* * * it is clear that the Constitution is not to be construed technically and narrowly as an indictment or even as a grant presumably against the interest of the grantor, and passing only that which is clearly included within its language, but as creating’ a system of government whose provisions are designed to malee effective and operative all the governmental powers granted.” In Paddell v. New York, 211 U. S. 446, 29 Sup. Ct. 139, the court said: “You cannot carry a Constitution out with mathematical nicety to logical extremes.” And in Re Strauss, 197 U. S. 324, 25 Sup. Ct. 535, we find these words, referring to the Constitution: “Ordinarily words in such an instrument do not receive a narrow, contracted meaning, but are presumed to have been used in a broad sense, with a view •of covering all contingencies.” Such are the principles *419applied in construing the Constitution of the United States, whose government possesses no powers except those granted expressly or by implication. For illustrations of the application of those principles, see Wilson v. New and the rent cases, supra. State governments, on the other hand, possess all the powers of sovereignty save only those that Constitutions have withheld. We should not, except in the very clearest of cases, so construe constitutional limitations as to defeat the purposes for which state governments are created, or so as unduly to cripple state governments in the performance of their functions. The Masonic Park case, supra, shows the broad, liberal construction applied by this court on one occasion. It is not necessary to resort to such extreme liberality of construction in order to uphold the act of 1933. Be that as it may, I see no reas'on why a narrow, illiberal construction should be resorted to where, as in this case, it results' in striking down a beneficent statute enacted to meet the present emergency by relieving, to some extent, the distress that is acute', widespread, and menacing'.

I believe that the judgment should be affirmed, and for the reasons stated in this opinion and in the opinions of my brothers Bouck and Holland, I respectfully dissent from the decision and opinion of the court.