O'Connell v. State Board of Equalization , 95 Mont. 91 ( 1933 )

If this case were not of so much importance to the people of this state, and if the result reached by the majority, in case the electorate shall not see fit to favor the proposed constitutional amendment, is not likely to lead to increased taxation and consequent disaster, I should be content to dissent without giving my reasons for so doing.

Whatever else may be said respecting the reasons for, and the groundwork of, the bill which became Chapter 181 of the Laws of 1933, it is apparent that its sponsors were doubtful of its validity. Admittedly the Act is based in the main upon the income tax law of the state of Idaho, which met the approval of the supreme court of that state in Diefendorf v. Gallet,51 Idaho, 619, 10 P.2d 307, 309. Upon the argument, the First Assistant Attorney General, speaking for the defendants, admitted that, if an income is property, the Act cannot be sustained. To obviate that difficulty, he contended, upon the authority of Diefendorf v. Gallet, supra, a learned and exhaustive opinion, and the authorities collated therein, that income is not property.

As we shall see presently, our Constitution defines the word "property" and does it comprehensively, while the Idaho Constitution does not; section 3 of Article VII of the Idaho Constitution provides: "The word ``property' as herein used shall be defined and classified by law." In the Idaho Act (Laws 1931 [Ex. Sess.], Chap. 2, sec. 78) it is provided that net income "shall not be classified or held or construed to be property," and this, the Idaho court says, was done in response to the constitutional provision above quoted. "The legislature, by section 78, did define and classify net income to the extent indicated. At the outset, therefore, we are met with this legislative declaration enacted under a constitutional delegation of power to define and classify." On this subject, says the court, the Idaho constitutional provision is unique.

In considering the case before us, the first question we encounter is, Can Chapter 181 be sustained under our Constitution as was its prototype in Idaho? At the very threshold we must bear in mind that the provisions of our Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise (Art. III, sec. 29), and we must not forget that "it is a constitution we are expounding." (McCulloch v. Maryland, 4 Wheat. (U.S.) 316, 407, 4 L. Ed. 579.) We should observe at the outset, too, that the settled determination of the people in framing and adopting the Constitution to restrict the legislature in matters of taxation is an outstanding feature of that fundamental law. The historic tendency of governments constantly to exact more money from the taxpayer pursuant to popular desire in furthering public activities was in the mind of the framers; they knew that the history of the human race tells with startling repetition the story of ships of state going to destruction upon the rocks of high taxation. The people in adopting the Constitution "intended to and did carefully limit the legislative power as to taxation." (State v. Camp Sing, 18 Mont. 128, 44 P. 516,519, 56 Am. St. Rep. 551, 32 L.R.A. 635.)

While the inquiry necessarily will comprehend Article XII of our Constitution relating to revenue and taxation, it will be convenient first to dispose of the argument that income is not property. Section 17 of Article XII declares that "the word property as used in this article is hereby declared to include moneys, credits, bonds, stocks, franchises and all matters and things (real, personal and mixed) capable of private ownership." No more comprehensive definition of property can be devised. This section, said this court in Northwestern Mutual Life Ins. Co. v. Lewis Clark County, 28 Mont. 484, 72 P. 982, 983, 98 Am. St. Rep. 572, in its definition of that which is made subject to taxation is sufficiently comprehensive to "include all matters and things, visible and invisible, tangible and intangible, corporeal and incorporeal, capable of private ownership."

The idea that income is not property within the contemplation of our own and similar constitutional provisions seems to have had its origin in the concept of Mr. Justice Jackson, in Waring v. Mayor etc. of Savannah, 60 Ga. 93, wherein it is said,arguendo, that "net income, after expenses are paid, becomes property when invested, or if it be money lying in the bank, or locked up at home. * * * The fact is, property is a tree; income is the fruit; labor is a tree; income, the fruit; capital, the tree; income, the fruit. The fruit, if not consumed as fast as it ripens, will germinate from the seed which it encloses, and will produce other trees, and grow into more property; but so long as it is fruit merely, and plucked to eat, and consumed in the eating, it is no tree, and will produce itself no fruit."

Upon this and similar fallacious reasoning a number of respectable courts have declared that income is not property. It would be useless to discuss these authorities; they are collected in the Diefendorf Case. Their sophistry is adequately exposed by the eminent Justice Somerville speaking for the supreme court of Alabama, in Eliasberg Bros. Merc. Co. v.Grimes, 204 Ala. 492, 86 So. 56, 58, 11 A.L.R. 300: "Money or any other thing of value, acquired as gain or profit from capital or labor, is property; in the aggregate these acquisitions constitute income; and, in accordance with the axiom that the whole includes all of its parts, income includes property and nothing but property, and therefore is itself property. This conclusion is so clear that we cannot regard it as debatable, and we have discussed the question at such length chiefly out of deference to the learned counsel for the state, who have undertaken to refute it upon reason and upon cited authority. If there is anywhere a lingering doubt about this question it will be instantly dispelled by reading the opinions in Ludlow etc.Co. v. Wollbrinck, 275 Mo. 339, 205 S.W. 196, 202, and inState v. Pinder, 30 Del. (7 Boyce) 416, 108 A. 43, where it is fully discussed, both upon principle and authority." Speaking of the opinion in Waring v. Mayor etc. of Savannah, supra, Judge Somerville continues: "With all due respect to the court which approved such reasoning — and we note that Judge Bleckley concurred dubitante — we are unable to appreciate its relevancy or its value. Investing, or depositing, or locking up what is received as income, changes not its character, but merely its use; and the notion that a tree is property, while its fruit is not, cannot be sustained upon any principle of logic or common sense." (And see Redfield v. Fisher, 135 Or. 180,292 P. 813, 295 P. 461, 73 A.L.R. 721; Bachrach v. Nelson,349 Ill. 579, 182 N.E. 909, 915; In re Opinion of the Justices,220 Mass. 613, 108 N.E. 570, 575.)

Our legislative assembly, following the example of Idaho, attempted to declare in section 31 of the Act that income is not property, but this declaration, in view of the constitutional provision, is a waste of words. Furthermore, legislative declarations of the nature of the tax imposed are not controlling on the courts in the matter of determining the true end of a tax. (Redfield v. Fisher, supra.)

But it is said that this court held in Hilger v. Moore,56 Mont. 146, 182 P. 477, 482, that section 17 relates to section 2 of Article XII only. What was said in that opinion on the point was unnecessary and is pure obiter dictum. Moreover, it is not the law. Section 2 relates wholly to exemptions, and specifies the property which shall, or may be, exempt. The word "property" as employed in section 17 is clearly applicable to sections 1, 5, 6, 7 and 9 (if not others) of Article XII, as well as to section 2. Section 17 begins: "The word property as used in this article. * * *"

The majority, not content with the Attorney General's concession, takes the ground that an income tax may be imposed upon the theory that such a tax is not within the comprehension of Article XII, and is thus, it would seem, akin to an inheritance tax; this theory apparently blends into the argument of the Attorney General, who says an income tax, like an inheritance tax, is not a tax on property.

Income taxes were well known when the Constitutional Convention was in session, and to say that its members were unaware of them is to impeach the knowledge of the many erudite men who composed the convention. Now let us see what they did. Section 1 of Article XII of the Constitution provides: "The necessary revenue for the support and maintenance of the state shall be provided by the legislative assembly, which shall levy a uniform rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, except that specially provided for in this article. The legislative assembly may also impose a license tax, both upon persons and upon corporations doing business in the state."

As early as 1896 this court in a learned and carefully worded opinion considered the purpose and intention of this article, which, said the court, provides two systems of raising money: (1) The taxation system; and (2) the license system. (State v.Camp Sing, supra.) That this was not an idle but a studied and well-founded assertion is borne out by the debates in the convention which the three justices participating in the decision consulted. They were contemporaries of the men who wrote the Constitution, and Chief Justice Pemberton and Justice Hunt were members of the Constitutional Convention of 1884. As Mr. Justice Holloway said in Hilger v. Moore, supra: "When the Constitution of 1889 was written, many of the provisions of the proposed 1884 Constitution were copied verbatim, but in preparing section 1, Article XII, the old draft was abandoned and for it was substituted the section in the language quoted above. Many [five] of the members of the first convention were also members of the second. The same member who presided over the committee which framed Article XII of the first proposed Constitution was likewise chairman of the committee which drafted Article XII of our present Constitution."

Section 1 of Article XII of the 1884 Constitution read:

"The legislative assembly shall provide such revenue as may be needful by levying a tax by valuation, so that every person or corporation shall pay a tax in proportion to the value of his, her, or its property, except as in this article hereinafter otherwise provided. The legislative assembly may also impose a license tax, both upon natural persons and upon corporations, other than municipal, doing business in this state." The next section provided: "The specification of the object and subject of taxation shall not deprive the legislative assembly of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed by this Constitution." But the 1889 convention cast out section 2, excluding its provisions altogether. Can one ask for stronger proof of the intention of the framers to confine the power of the legislature within the two systems described in the Camp SingCase? To refute this, a sentence from Hilger v. Moore, supra, is seized upon, wherein Mr. Justice Holloway said that Article XII "does not assume to create or define any system of assessment or taxation," but this had reference to an argument that section 1 was intended to deal with state taxes exclusively, and section 11 with local taxes exclusively. Following the excerpt quoted above, the opinion says: "Elminate it [Article XII] altogether from the Constitution, and the legislature could do everything it can now do, and other things besides [italics mine], and it was for the express purpose of limiting the lawmakers in legislating upon either of these subjects, that Article XII was inserted. (State v. Camp Sing [supra], 18 Mont. 128, 44 P. 516, 56 Am. St. Rep. 551, 32 L.R.A. 635.) Its limitations are not always expressed in the negative form — thou shalt not — but they are present nevertheless."

As was said in Sun River S. L. Co. v. Montana T. S.Bank, 81 Mont. 222, 262 P. 1039, 1047: "In considering the meaning and intent of the language of an opinion one must have constantly in mind the facts of the case in which the opinion is written. For, as Chief Justice Marshall observed, it is impossible to so use language as that general expressions apply in every instance with the same meaning to every condition of facts." The fidelity with which the court followed the doctrine of the Camp Sing Case in Hilger v. Moore is especially noteworthy, and this court has never departed from it until now. (See Hale v. County Treasurer, 82 Mont. 98, 265 P. 6, 8.)

It is argued that by analogy the income tax law may be sustained upon the doctrine underlying the inheritance tax law, but the distinction here is very wide. An inheritance tax is not a tax imposed upon property, "``but upon the privilege of acquiring property by inheritance.' (Gelsthorpe v. Furnell,20 Mont. 299, 51 P. 267, 39 L.R.A. 170; In re Tuohy's Estate,35 Mont. 431, 90 P. 170.) It is a tax upon the transfer, transaction or right to receive property, as the supreme court of Wisconsin said in State v. Bullen, 143 Wis. 512,128 N.W. 109. (Matter of Penfold's Estate, 216 N.Y. 163, Ann. Cas. 1916A, 783, 110 N.E. 497; State of Colorado v. Harbeck,232 N.Y. 71, 133 N.E. 357; Chaffin v. Johnson, 200 Iowa, 89,204 N.W. 424; Walker v. People, 64 Colo. 143, 171 P. 747, 8 A.L.R. 855.)" (State ex rel. Walker v. Jones, 80 Mont. 574,261 P. 356, 358, 60 A.L.R. 551.) No one has an inalienable right to receive property by inheritance. It is a right granted to an heir by the sovereign people, a right which the people may withhold. "The privilege is itself not a natural right, but a creature of law." (In re Tuohy's Estate, supra.) "To regulate by taxation or otherwise the privilege or right to receive property, is not in conflict with the first section of the bill of rights, which recognizes the inalienable right of acquiring, possessing, and protecting property." (State ex rel.Schwartz v. Ferris, 53 Ohio St. 314, 41 N.E. 579, 580, 30 L.R.A. 218; Gelsthorpe v. Furnell, supra.)

Here let us place our feet upon the solid ground. Section 3 of Article III of our state Constitution declares that "All persons are born equally free, and have certain natural, essential, and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties, of acquiring, possessing, and protecting property, and of seeking and obtaining their safety and happiness in all lawful ways." People may be required to pay taxes for the support of the government which secures to them these inalienable rights. But there can be no tax upon a man's right to live and earn his bread by the sweat of his brow.

Even if it were regarded as an excise tax, the law is that the individual's right to live and own property is a natural right, for the enjoyment of which an excise tax cannot be imposed. "The mere right to hold and own such property cannot be made the subject of an excise." (In re Opinion of the Justices, supra.) The power to levy an excise tax "does not extend to the imposition of a charge upon the exercise of a common right." (Inre Opinion of the Justices, 82 N.H. 561, 138 A. 284, 286.)

But the idea that an income tax is an excise under our Constitution is a fantasy. "Taxes are generally classified as either taxes on property or excise taxes, although sometimes the word ``excise' is not used, but instead ``license,' ``privilege,' ``occupation,' or the like. (Cooley on Taxation, 4th ed., sec. 1670.)" (Hale v. County Treasurer, supra.)

"Excises, in their original sense, were something cut off from the price paid on a sale of goods, as a contribution to the support of the government. The word has, however, come to have a broader meaning and includes every form of taxation which is not a burden laid directly upon persons or property; in other words, excise includes every form of charge imposed by public authority for the purpose of raising revenue upon the performance of an act, the enjoyment of a privilege, or the engaging in an occupation." (26 R.C.L. 34.)

An excise tax is contemplated by Article XII but only "upon persons and upon corporations doing business in the state" (sec. 1). The language is exclusive. It does not include one who merely receives an income from property, or one who receives a "salary" as an employee, or a blacksmith, carpenter, or electric worker who receives "wages," day's pay; such persons are not "doing business."

Section 11 of Article XII provides: "Taxes shall be levied and collected by general laws for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax." Chapter 181 contravenes this provision; it commands the levy of a higher rate of assessment and taxation upon property in the same class; it undertakes to impose a levy of 1 per cent. on the first $2,000, 2 per cent. on the second $2,000, 3 per cent. on the third $2,000, and 4 per cent. on amounts over $6,000. In other words, it is a graduated tax. Thus the burdens are made to bear at unequal and arbitrary rates, a scheme which this court has heretofore denounced in Hauser v. Miller, 37 Mont. 22, 94 P. 197. As was said in Bachrach v. Nelson, supra: "It is a proposed tax on property by graduation rather than by valuation. Whether this law would be desirable from an economic standpoint or as a matter of public policy is something of which this court can take no cognizance, as we are clothed with the power and primarily entrusted with the duty of maintaining the fundamental law of the Constitution, which in its present form confers no legislative authority for the enactment of the proposed graduated Income Tax Act."

Again, if the Income Tax Act is designed as a tax upon property, which it is, whether so designed or not, or, speaking accurately, against the person upon the basis of his ownership of property (Hilger v. Moore, supra; Sanderson v. Bateman,78 Mont. 235, 253 P. 1100), it is void as a levy in excess of the limit provided in section 9 of Article XII which prohibits a levy at a rate of taxation on property for state purposes in excess of two mills on each dollar of valuation without the submission of the proposition to the people at a general election. It does not require any argument to show that, where property is already taxed at the rate of a mill and a half, a taxpayer with sufficient property and income inevitably will be obliged to pay at a greater rate than two mills on each dollar of valuation. In another view, double taxation may result, for, if a person saves a portion of his net income, which portion he possesses at noon on the first Monday of March, he will be obliged to pay the income tax and also an ad valorem tax thereon.

That the operation of Chapter 181 will increase taxes during the present biennium cannot be denied. While it is said in section 28 of Chapter 181 that the revenue produced from income taxes shall be taken account of by the state legislature in making the annual levy for state purposes, such revenue can only affect succeeding biennia. The legislature has levied a tax of one and one-half mills for state purposes, which must be paid throughout the present biennium regardless of whether money is received from income taxes. In the long view, this is not especially important. What is important is the idea of replacingad valorem taxes by income taxes, which found favor with the last legislature, but may not be approved by some future legislature desirous of raising more money. If the legislature has the right under the Constitution as it now exists to levy an income tax, it may employ that tax to raise large sums of money in addition to the ad valorem taxes provided by the Constitution. This will not be possible if the constitutional amendment, which is to be submitted to the people at the next election, is carried, for the amendment provides that the legislative assembly may levy "and collect taxes upon incomes of persons, firms and corporations for the purpose of replacing property taxes." (Laws 1933, Chap. 83, sec. 2.)

Admitting that income taxes are desirable, that, as different writers say, the income tax system is a long step in advance, which in the interest of good government should be taken, and that it is the only practical system to reach intangibles which to a large extent are and have been escaping taxation, and is generally conceded by economists and tax experts to be the most equitable and just of all kinds of taxes, the question to be decided by us is whether that system is permissible under the Constitution, or whether it will be necessary to amend it in order that the system may be employed. My answer is: The Constitution must be amended to warrant a valid income tax law.

If it be conceded that additional revenue is needed, nevertheless I say, as was said in the Camp Sing Case: "In the matter before us it is better that we suffer all the inconveniences of a present loss of revenue than that we let go of the Constitution for the sake of relief from temporary distresses."

Mr. Justice Angstman's opinion holding the law void as discriminatory appears to have merit, but in the light of what precedes I do not feel called upon to pass upon that issue.