Astoria v. Kozer , 124 Or. 261 ( 1928 )

The case is presented on general demurrer to the alternative writ.

"Taxes" as used in Section 1 of said chapter is broad enough to include income taxes, motor vehicle taxes, gasoline taxes, inheritance taxes and corporation license taxes. The statutes prescribe that the motor vehicle taxes and the gasoline taxes shall be paid into a special fund to be applied, first, to the payment of interest and retirement of bonds; second, to defray the expenses of preparing the roadbed, bridges, etc., for the construction of state highways, and third, in any other manner for general road improvement: Or. L., §§ 4810, 4819. Our Constitution expressly provides:

"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." Const., Art. IX, § 3.

Plaintiff can claim nothing under said Chapter 280 unless the fund to which it lays claim is a tax. Motor vehicle and gasoline taxes, being levied to raise money for public roads, cannot be diverted from that purpose. Said Chapter 280 would be unconstitutional under said Article IX, Section 3, if we should construe it to include the taxes raised for highway purposes. The rule of construction requires us to construe the statute to be within the Constitution if the language of the act will reasonably admit of such construction: Eastern Western LumberCo. v. Patterson, ante, p. 112 (264 P. 441). The act itself has been construed by this court to be constitutional. Kinney v. Astoria, 108 Or. 514 (217 P. 840). It follows necessarily, therefore, that a restricted meaning must be given the word "taxes" as used in said Chapter 280.

Our statute has prescribed rules for the construction of contracts and statutes by this court: Or. L., §§ 715, 716. Under these statutes we are required to ascertain, from the language of the act to be construed, the intent of the legislature. Under the provisions of said Section 715, we must adopt such construction of said Chapter 280 as to give effect, if possible, to all of the provisions thereof. Critically examining Sections 1 and 2 of said Chapter 280, we find that the only taxes, which seem to have been in the mind of the legislature when considering said Chapter 280, were general property taxes. It is well known that in this state personal property is assessed to the owner and real property against the land. These are the only state taxes which are paid by the county treasurer to the state semi-annually. All other state taxes are paid directly to state officials by the taxpayer. The income tax, enacted at the session of the legislature of 1923, provided for payment of said tax when amounting to more than $10 from the taxpayer to be made in quarter annual installments. All of the provisions of said Chapter 280 cannot be made to apply to any other tax than general property tax without doing violence to the terms of the act or a part of the act. The income tax was not payable through the county treasurer at all but was paid directly to the state treasurer. The statute declaring the rule of construction which must govern this court forbids us doing violence to the language in construing it. The language of the act forbids including any tax except general personal and property taxes within the terms of the appropriation in said Chapter 280. The same principle which excludes motor vehicle and gasoline taxes, except application of the funds, also excludes income, inheritance and corporation license taxes from said appropriation. Other authorities under similar circumstances have adopted the same construction of the word "taxes" that we are adopting.

A well-considered case is Des Moines U.R. Co. v. Chicago,Great Western R. Co., 188 Iowa, 1019 (177 N.W. 90, 9 A.L.R. 1557). The court there had under consideration a case involving the construction of the following language in a contract between the parties:

"One third of all taxes or assessments, special or otherwise, and public charges of every kind and nature that shall or may be taxed or assessed against the Des Moines Company or its property during the aforesaid term of years * *"

shall be paid by defendant. The court held that income taxes and excise taxes were not included within the language quoted. It will be seen that the language referring to taxes quoted in the case just cited is broader than the language regarding the same subject matter in said Chapter 280.

An instructive discussion of the comprehensiveness of the word "tax" will be found in the several opinions written in Pollock v. Farmers' Loan Trust Co., 158 U.S. 601 (39 L. Ed. 1108,15 Sup. Ct. Rep. 912, see, also, Rose's U.S. Notes).

Construing said Chapter 280 in its entirety and giving force to all of the language used therein, we are constrained to hold that the demurrer to the alternative writ must be sustained.

It is so ordered, the peremptory writ denied and the petition dismissed. PETITION DENIED.

BEAN, J., absent.