State Ex Rel. State Aeronautics Commission v. Board of Examiners of State , 121 Mont. 402 ( 1948 )

This is an original proceeding in this court in mandamus.

The petition alleges that claims for expenses of relators in administering the provisions of Chapter 152, Laws 1945, have been approved and paid by defendants to and including the month of November 1947, but that they refuse to approve and pay claims for expenses incurred since that time. The refusal is based upon the fact that the Thirtieth Legislative Assembly failed to make any appropriation for that purpose for the fiscal years 1947-1948 and 1948-1949.

Relators contend that the expenses in question are payable from a special fund provided for that purpose and that the constitutional provisions relating to appropriations and particularly that part of section 12, Article XII prohibiting appropriations of public moneys for a longer term than two years have no application.

Section 20 of Chapter 152 provides that all costs and expenses of administering the act shall be paid out of the state aviation fund. It provides that the aviation fund shall be made up of the following revenues:

"All gifts and all legislative appropriations for said fund; all moneys received from any branch or department of the federal government, or from other sources, for the purposes mentioned in this act or for the furtherance of aeronautics generally in this state.

"There shall also be paid into said fund the proceeds of one cent per gallon out of each five cents per gallon of gasoline license tax now imposed by the laws of Montana upon purchases of gasoline used for the operation of aircraft.

"The revenue from said one cent per gallon of said tax shall no longer be placed in either the state highway fund or the gasoline license drawback fund as now required by Sec. 2381.22, R.C.M. 1935, as amended, but the same shall, when received by the state treasurer, be placed in the state aviation fund.

"No part of said one cent per gallon of gasoline license tax imposed by the laws of Montana on gasoline purchased and used for the operation of aeroplanes or aircraft, shall be subject to refund under the provisions of Sec. 2396.4, R.C.M. 1935 as amended, it being the intent of this section to reduce from five cents to four cents per gallon the amount of gasoline license tax which may be refunded on purchases of gasoline used in the operation of aircraft, and to leave otherwise unchanged the provisions of said section 2396.4."

By section 8 of the act the aeronautics commission is authorized to accept federal and other moneys either public or private.

By subdivision (d) of section 8, it is provided:

"(d) Disposition of federal funds — All monies accepted for disbursement by the commission pursuant to subdivision of this section shall be deposited in the state treasury, and, unless otherwise prescribed by the authority from which the money is received, kept in separate funds, designated according to the purposes for which the monies were made available, and held by the state in trust for such purposes. All such monies are hereby appropriated for the purposes for which the same were made available, to be expended in accordance with federal laws and regulations and with this act. The commission is authorized, whether acting for this state or as the agent of any of its municipalities, or when requested by the United States government or any agency or department thereof, to disburse such monies for the designated purposes, but this shall not preclude any other authorized method of disbursement."

The constitutional provisions relied upon by respondents are section 34 of Article V, reading: "No money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof, except interest on the public debt," section 10 of Article XII reading: "All taxes levied for state purposes shall be paid into the state treasury, and no money shall be drawn from the treasury but in pursuance of specific appropriations made by law," and the following part of section 12, Article XII: "No appropriation of public moneys shall be made for a longer term than two years."

We are not advised as to whether the aviation fund on hand contains any federal moneys or any other moneys save that derived from the one cent per gallon tax on gasoline. The parties have argued the questions presented as if the only moneys in the aviation fund were those derived from the gasoline tax and we shall consider the questions from that standpoint. We may say in passing however that federal funds and other moneys derived otherwise than by taxation never reach the general fund of the state treasury and hence require no legislative appropriation other than that already made by subdivision (d) of section 8 above quoted.

As to the gasoline license tax of one cent per gallon, it is contended by respondents that it is a tax for a state purpose and hence section 10 of Article XII requires that it be paid into the state treasury and that it can be taken out only by an appropriation every two years.

Section 10 of Article XII and other constitutional provisions[1, 2] relating to taxation have no application to license fees or taxes imposed for regulatory purposes as distinguished from property taxes. In State ex rel. Attorney General v. Wisconsin Constructors, 222 Wis. 279, 268 N.W. 238, 243, the court made this point clear by saying:

"Taxes are imposed for the purpose of general revenue. Licenses and other fees are ordinarily imposed to cover the cost and expense of supervision or regulation. City of Milwaukee v. Milwaukee Electric R. Light Co., 147 Wis. 458, 133 N.W. 593,595. See, also, Head Money Cases, 112 U.S. 580, 5 S. Ct. 247,28 L. Ed. 798; United States v. Butler (AAA decision), 297 U.S. 1,56 S. Ct. 312, 80 L. Ed. 477, 102 A.L.R. 914. The distinction between a tax and an imposition under the police powers is well stated in Cooley on Taxation (4th Ed.) pp. 3511, 3513, 3528:

"``The distinction between a demand of money under the police power and one made under the power to tax is not so much one of form as of substance. The proceedings may be the same in the two cases, though the purpose is essentially different. The one is made for regulation and the other for revenue. If the purpose is regulation the imposition ordinarily is an exercise of the police power, while if the purpose is revenue the imposition is an exercise of the taxing power and is a tax. If, therefore, the purpose is evident in any particular instance, there can be no difficulty in classifying the case and referring it to the proper power. * * *

"``Only those cases where regulation is the primary power can be specially referred to the police power. If revenue is the primary purpose and regulation is merely incidental the imposition is a tax; while if regulation is the primary purpose the mere fact that incidentally a revenue is also obtained does not make the imposition a tax, although if the imposition clearly and materially exceeds the cost of regulation, inspection or police control, it is generally held to be a tax or an illegal exercise of the police power. * * *

"``The power of a state to require a license fee in the exercise of the police power is inherent, subject to the limitations upon the police power in general and to any constitutional limitations which may exist; but constitutional limitations on the power to tax have no application' — citing State v. Anderson, 144 Tenn. 564, 234 S.W. 768, 19 A.L.R. 180."

The same question was considered in Stewart v. Verde River Irr. Power Dist., 49 Ariz. 531, 68 P.2d 329, and the same conclusion reached. And to the same effect see Parsons v. People,32 Colo. 221, 76 P. 666.

This court reached the same conclusion in State v. Police[3, 4] Court, 68 Mont. 435, 219 P. 810. And this court held in State ex rel. Sam Toi v. French, 17 Mont. 54, 41 P. 1078, 30 L.R.A. 415, that a license fee is not a tax subject to the uniformity clause of the Constitution. To the same effect is State ex rel. Griffin v. Greene, 104 Mont. 460, 67 P.2d 995, 111 A.L.R. 770. It is sometimes difficult to ascertain whether a given exaction is a revenue or a regulatory measure. But in this case there can be no doubt on the subject. Chapter 152 is a regulatory measure. It provides for the licensing of all persons operating in aviation. Sec. 9, Title III. The commission is empowered to assist in the development of aeronautics in this state and to encourage the establishment of airports. It may make rules and regulations, establish minimum standards for the purpose of protecting and insuring public safety.

In 33 Am. Jur., page 338, it is said, "nor are statutory or[5, 6] constitutional restrictions upon the power to tax applicable to license fees required for the purpose of regulation." And again on page 340 it is said: "The fact that a pecuniary amount is charged and that revenue may result from the enforcement of license requirements does not necessarily mean that the license enactment is a revenue measure. Revenue may result from an undisputed exercise of the police power, which revenue is designed to defray the cost of regulation of the business or occupation for which it is exacted, but that fact does not divest the regulation of its police character and render it an exercise of the taxing power, nor in any proper sense may such an imposition be considered a tax." But respondents rely upon the case of State ex rel. Diederichs v. State Highway Comm.,89 Mont. 205, 296 P. 1033, as sustaining the contention that the motor fuel excise tax is a revenue measure. That case so holds. Likewise the Supreme Court of Utah has held that a four cent per gallon tax on the use of diesel motor fuel is a revenue measure. Garrett Freight Lines v. State Tax Comm., 103 Utah 390,135 P.2d 523, 146 A.L.R. 1003. The tax is generally referred to as an excise tax. See cases cited in note in 84 A.L.R. 866.

Our law imposing the five cent per gallon gasoline tax makes[7] no pretense at regulation. It specifically provides that the proceeds are to be used for the construction and maintenance of highways. But the Act in question here takes one cent per gallon of the gasoline license tax, which were it not for this Act, would be refunded to the aviation operator using the gasoline otherwise than on the highways of the state.

The practical operation of Chapter 152 places the burden of[8] paying the one cent per gallon tax on the user of the gasoline for aviation purposes (compare Gregg Dyeing Co. v. Query, 286 U.S. 472, 52 S. Ct. 631, 76 L. Ed. 1232, 84 A.L.R. 831, 837) and it is used to regulate the aviation operators and hence is clearly a regulatory and not a revenue measure, and as such it is not subject to the constitutional provisions relating to taxation.

Section 10 of Article XII has no application to the license[9] tax in question here, and in consequence it is not necessary that the proceeds of the one cent per gallon gasoline tax be paid into the state treasury as a part of the general fund of the state and it was competent for the legislature to provide as it did in Chapter 152 that the moneys be kept in a separate fund, known as the state aviation fund.

It is not a new thing in Montana for the legislature to place license fees in a special fund for a special purpose. Prior to the passage of Chapter 14, Laws of 1941, many license fees were paid into special funds for special purposes. By Chapter 14 most of them are now required to be paid into the general fund of the state.

Is this fund subject to the provisions of section 12, Article[10] XII of the Constitution to the effect that "no appropriation of public moneys shall be made for a longer term than two years" and to the provisions of section 10, Article XII that "no money shall be drawn from the treasury but in pursuance of specific appropriations made by law" and to the similar provision in section 34 of Article V. This court has repeatedly held that these sections of the Constitution have no application to special or trust funds which have never been placed in the general funds of the state. State ex rel. Veeder v. State Board of Education, 97 Mont. 121, 33 P.2d 516; State ex rel. Blume v. State Board of Education, 97 Mont. 371, 34 P.2d 515; State ex rel. Hawkins v. State Board of Examiners, 97 Mont. 441,35 P.2d 116; Barbour v. State Board of Education, 92 Mont. 321,13 P.2d 225; State ex rel. City of Missoula v. Holmes, 100 Mont. 256, 47 P.2d 624, 100 A.L.R. 581; Martin v. State Highway Comm., 107 Mont. 603, 88 P.2d 41.

In the Holmes case, supra, 100 Mont. at page 290, 47 P.2d[11] at page 636, 100 A.L.R. 581, we said: "It is urged that the provisions of section 34 of article V of the Constitution are violated, in that money is directed to be expended from the treasury without any appropriation made therefor by law. The insurance fund is a special fund created by authority of law for a specific purpose. In the case of State ex rel. Veeder v. State Board of Education, 97 Mont. 121, 33 P.2d 516, 521, it was said: ``As the Act has to do only with special funds to arise from the operations authorized and in connection therewith and devoted to a special purpose, it does not violate the provisions of sections 34 and 39 of article V, or section 10 of article XII, of the Constitution, respecting state moneys and the appropriation thereof.'" And in State ex rel. Boorman v. State Board of Land Commissioners, 109 Mont. 127, 94 P.2d 201, 204, this court quoted with approval from the case of State ex rel. Bonner v. Dixon, 59 Mont. 58, 76, 195 P. 841, 844, the following: "Generally, the word ``appropriation' as used throughout our Constitution, has reference exclusively to the general fund."

Other courts with similar constitutional provisions have reached the same conclusion. Thus in the case of State ex rel. Boynton v. Kansas State Highway Comm., 139 Kan. 391,32 P.2d 493, 495, the court had before it the question whether section 24 of Article 2 of the Kansas Constitution, which provided that "no money shall be drawn from the treasury, except in pursuance of a specific appropriation made by law, and no appropriation shall be for a longer term than two years," was violated by a certain legislative act of the state of Kansas. The court in holding that the act was not in contravention of section 24, Article 2, said: "Article 2, section 24, of our Constitution applies only to moneys that find their way into the state treasury. When our people, by amending article 11, section 8, of our Constitution, making two sections of it — 8 and 9 (as renumbered 9 and 10) — so that the state could construct and maintain a state system of highways and levy special taxes on motor vehicles and motor fuels for that purpose, they made no specific provision that the moneys so raised and used should necessarily find their way into the state treasury, but left the Legislature free to provide for the collection and disbursement of such funds in the way it deemed best. What the Legislature did was to provide that these moneys, as collected, should be transmitted to the state treasurer and by him placed in the highway fund and disbursed on proper orders by the highway commission. Sections 17, 18, c. 225, Laws 1929, as amended by Laws 1933, c. 241, now R.S. Supp. 1933, 68-416, 68-417. Since these funds are not required by the Constitution to find their way into the state treasury, and by statute do not do so, article 2, section 24, requiring appropriation of moneys from the state treasury, has no application. These funds are collected for a specific purpose. The Legislature would have no authority to appropriate them for other purposes. They are collected, segregated, set aside, and can be used for one purpose only, namely, the construction and maintenance of state highways. This is not the only fund the state has, which, although deposited with the state treasurer and disbursed by him under proper directions of other officials, does not find its way into the state treasury, and therefore does not require specific appropriation every two years by the Legislature."

This court cited and quoted from the Boynton case with approval in the Boorman case, supra. To the same effect as the Boynton case is the case of Kittredge v. Boyd, 136 Kan. 691,18 P.2d 563, 568, 93 A.L.R. 574.

In Louisiana State Dept. of Agriculture v. Sibille,207 La. 877, 22 So. 2d 202, 205, the court had before it a license tax on the shipment of sweet potatoes of one cent per bushel for a certain period and two cents a bushel thereafter. It was attacked on several constitutional grounds. Among other contentions it was argued that the act violated the constitutional command that "all taxes shall be uniform upon the same class of subjects." Of this contention the court said: "under our well-established jurisprudence those constitutional provisions apply only to property taxes; they do not control the imposing of license or excise taxes." It was also attacked upon the grounds that it violated constitutional provisions prohibiting money to be drawn from the treasury except in pursuance of specific appropriation made by law and prohibiting appropriations of money for a longer term than two years. Of these contentions the court said: "Appellees' fourth complaint, listed in Paragraph (d) of their plea, is that the statute violates Article 4, Section 1 of the Louisiana Constitution, by providing for the disbursement of public money from the State Treasury without any specific appropriation and by undertaking to distribute the proceeds of the tax for a longer period than two years. The referred to constitutional provision reads in part: ``No money shall be drawn from the treasury except in pursuance of specific appropriation made by law; nor shall any appropriation of money be made for a longer term than two years.' According to Section 6 of the statute, the proceeds of the tax must be deposited in a special fund and all used by the Louisiana Sweet Potato Advertising Agency in conducting its publicizing and promotion campaign. By this method there is created a dedication, not an appropriation, and the mentioned constitutional provision is not violated. Board of Administrators of Charity Hospital v. Richhart, 139 La. 446,71 So. 735; State ex rel. Porterie v. Charity Hospital of Louisiana, 182 La. 268, 161 So. 606."

The case of Commonwealth v. Powell, 249 Pa. 144, 94 A. 746,749, treated of this question but under somewhat different constitutional provisions. In that state there is no prohibition against appropriations for more than two years, but what the court had to say on the question of appropriations has application here. It said: "* * * this provision of the Constitution was only intended to apply to biennial appropriations made by the Legislature out of the general revenues of the commonwealth. It has no application to a fund created for a special purpose and dedicated by the act under which such fund is to be created to a particular use. The appropriation of the fund so created continues as long as the act which dedicates it to a particular use remains in force. * * * The statute does not provide that the money derived from the registration and license fees shall be paid into the state treasury generally, so as to become part of the general resources of the commonwealth. The state treasury is merely made a depository for such fees. * * * When a fund is thus created and dedicated to a particular use by an act of assembly, which provides for its safe-keeping and prescribes how it shall be made available, no further legislation is needed to make the act effective." Other analogous cases are: State v. Brian, 84 Neb. 30, 120 N.W. 916; State v. Hall,99 Neb. 89, 155 N.W. 228, 156 N.W. 16; Edwards v. Childers, 102 Okla. 158,228 P. 472; and State ex rel. Nelson v. Ivorson, 125 Minn. 67,145 N.W. 607.

Respondents rely upon the following Arkansas cases as sustaining the opposite view: Moore v. Alexander, 85 Ark. 171,107 S.W. 395; Dickinson v. Clibourn, 125 Ark. 101, 187 S.W. 909; Lund v. Dickinson, 126 Ark. 243, 190 S.W. 428. The Moore case involved revenues produced by an ad valorem tax on property and hence is distinguishable from the instant case. The Clibourn case supports respondents' contention under facts analogous to those here, but the opinion was by a divided court (two of the justices dissenting) and the conclusion is contrary to the trend of the Montana decisions above cited. The Lund case simply followed the Clibourn case.

But if an appropriation be necessary, it is apparent to us that the legislature actually did make an appropriation. It made the following appropriation for the first year of the biennium in question: "From the Gasoline Drawback Fund. For gasoline drawbacks, including refunds to the federal government, as much as may be necessary to comply with the provisions of the law." Session Laws 1947, p. 761.

A like appropriation was made for the second year of the biennium. Id., p. 776.

The gasoline drawback fund is made up of 25 per cent of all moneys received by the state treasurer for gasoline license taxes. Sec. 2381.22. While under section 20 of Chapter 152, Laws of 1945, the 1 cent per gallon tax on gasoline used in aviation is no longer permanently placed in the drawback fund, yet of necessity and in the administration of the act it is temporarily placed therein until such time as it is ascertained how much gasoline on which the five cent per gallon tax was paid was used in aviation. As a practical matter the 25 per cent of all gasoline license taxes is first placed in the drawback fund under section 2381.22 and when applications for refunds are made and it is shown that a certain number of gallons of gasoline were used in aviation then a refund of four cents per gallon is made to the user and a transfer of one cent per gallon is made to the aviation fund from the drawback fund.

The legislature evidently had this operation in mind when it[12] appropriated as much from the gasoline drawback fund "as may be necessary to comply with the provisions of the law." By provisions of the law was certainly meant all provisions of the law, one of which is that one cent per gallon of gasoline tax on gasoline used in aviation shall be transferred to the aviation fund and used in administering Chapter 152, Laws of 1945.

One other point, though not deemed of sufficient importance to be raised by counsel for either party, but relied upon in one of the dissenting opinions, should be considered. Does the amendment to section 2396.4 as amended by Chapter 67, Laws 1939 (the refund statute) made by Chapter 130, Laws 1947, affect the question before us?

Section 20 of Chapter 152, Laws of 1945, had the effect of taking 1 cent per gallon of the five cent per gallon license tax on gasoline used in aviation which otherwise would be refunded and applied it to the aviation fund. It is a special statute withdrawing one cent per gallon from the gasoline license tax of five cents per gallon which, were it not for Chapter 152, would be refunded to the user of the gasoline.

Chapter 130, Laws of 1947, is simply a re-enactment of section 2396.4 as amended with the added paragraph reading: "All of the subdivisions of the state mentioned herein shall be subject to all of the conditions, rules and regulations applicable to individuals and as such subdivisions can act only by their officers and agents in presenting claims for refund they shall be responsible for and bound by the acts and declarations of such officers and agents."

That amendment was made to change the rule announced in Roosevelt County v. State Board of Equalization, Mont., 162 P.2d 887.

It is plain that the legislature had no intention of making any other change in section 2396.4, as amended by Chapter 67, Laws of 1939, or of making any change in Chapter 152, Laws 1945.

The portions of section 2396.4 as amended by Chapter 67, Laws of 1939, which were unchanged by Chapter 130, Laws 1947, must be considered as having been the law from the time they were first enacted. This is by virtue of section 93, Revised Codes of 1935, reading: "Where a section or a part of a statute is amended, it is not to be considered as having been repealed and re-enacted in the amended form, but the portions which are not altered are to be considered as having been the law from the time when they were enacted, and the new provisions are to be considered as having been enacted at the time of the amendment."

And see Snidow v. Montana Home for the Aged, 88 Mont. 337,292 P. 722, and State v. Yale Oil Corp. of South Dakota, 88 Mont. 506,295 P. 255.

Hence Chapter 130, Laws of 1947, did not have the effect of[13] changing the law as stated in Chapter 67, Laws of 1939, and as stated in Chapter 152, Laws of 1945, which simply took 1 cent per gallon of the gasoline license tax on gasoline used in aviation, which otherwise would be refunded and applied it to the aviation fund.

Chapter 152 applies also to Chapter 130, Laws of 1947, because[14] it is no different from Chapter 67, Laws 1939, except as to the added paragraph above quoted which has nothing to do with questions presented in this case.

"* * * it is a canon of statutory construction that a later statute general in its terms and not expressly repealing a prior special or specific statute, will be considered as not intended to affect the special or specific provisions of the earlier statute, unless the intention to effect the repeal is clearly manifested or unavoidably implied by the irreconcilability of the continued operation of both, or unless there is something in the general law or in the course of legislation upon its subject matter that makes it manifest that the legislature contemplated and intended a repeal." 50 Am. Jur. p. 566, 567.

Here the legislative intent to do nothing more than change the rule in the Roosevelt County case is so apparent that plausible argument on the point to the contrary is foreclosed. Had it thought for a moment that it was raising the refund from four cents per gallon to five cents the words "five cents" would have been italicized in Chapter 130, Laws of 1947, as was the quoted paragraph above. It is noteworthy that Chapter 130, Laws of 1947, was approved on February 28, 1947, and by its own terms became effective on that day and it was administered in accordance with the views herein stated until in November 1947 and we think correctly so.

It is our conclusion that the writ applied for by relators should be granted. It is so ordered.

Associate Justices Choate and Gibson, concur.