Aubol v. Engeseth

• Decision Date: 02 September 1935
• Docket Number: No. 6359.,6359.
• Citation: 66 N.D. 63,262 N.W. 338
• Parties: AUBOL et al. v. ENGESETH, Assessor, et al.
• Court: North Dakota Supreme Court

66 N.D. 63

262 N.W. 338

AUBOL et al.

v.ENGESETH, Assessor, et al.

No. 6359.

Supreme Court of North Dakota.

Sept. 2, 1935.

Syllabus by the Court.

1. The power of taxation is an essential attribute of sovereignty residing in the government as a part of itself, and no constitutional limitation or restriction upon the exercise of this power will be raised by implication. The intention to limit or abridge must be declared by a positive declaration, expressed in clear, unambiguous language.

2. The provisions of the State Constitution relating to taxation are limitations and restrictions and not grants of power.

3. The taxing power of the state is vested in the Legislature and is without limit, except such as may be prescribed by the Constitution itself.

4. Section 180 of the Constitution, providing that “the legislative assembly may provide for the levy, collection and disposition of an annual poll tax of not more than one dollar and fifty cents on every male inhabitant in this state over twenty-one and under fifty years of age,” does not, by implication, prohibit the Legislature from imposing a poll tax on women and on males over 50 years of age.

Appeal from District Court, Ward County; John C. Lowe, Judge.

Action by J. A. Aubol and another against Martin J. Engeseth, as Assessor of the City of Minot, and others. From a judgment for plaintiffs, defendants appeal.

Reversed.

CHRISTIANSON and NUESSLE, JJ., dissenting.

Robt. W. Palda, State's Atty., and C. E. Brace, Asst. State's Atty., both of Minot, and W. J. Austin, Asst. Atty. Gen., for appellants.

John J. Coyle, of Minot, for respondents.

BURKE, Chief Justice.

This action was brought under chapter 11A of the Code of Civil Procedure (1925 Supplement to the Compiled Laws of 1913, § 7712a1 et seq.) for a declaratory judgment construing chapter 247 of the Session Laws of 1931 and a declaration of the rights, status, or legal relations of the plaintiffs. It is alleged, in the complaint, that J. A. Aubol is a citizen of the United States, a resident of Ward county, and a male person of the age of sixty-four years; that the plaintiff Alice Audette is a female person of twenty-five years of age, a citizen of the United States, and a resident of Ward county; that the defendants have, heretofore, and are now threatening again to assess, levy, and collect from each of the plaintiffs herein a school poll tax in the sum of $1 per year, in violation of section 180 of the Constitution of the State of North Dakota, which reads as follows: “The legislative assembly may provide for the levy, collection and disposition of an annual poll tax of not more than one dollar and fifty cents on every male inhabitant of this state over twenty-one and under fifty years of age, except paupers, idiots, insane persons and Indians not taxed.”

In 1931 the Legislature enacted chapter 247 of the Session Laws of said year, which provides: “§ 1. Per Capita School Tax.) The County Auditor shall each year levy a tax of one dollar ($1.00) on each person twenty-one (21) years of age or over who on the first day of April in each year has resided in the State ninety (90) days or more. * * *”

On the stipulated facts the trial judge held the law unconstitutional and enjoined the defendants from assessing and collecting said tax, and the state appeals.

[1][2][3][4] The only question involved is: Does section 180 of the Constitution, which provides that “the legislative assembly may provide for the levy, collection and disposition of an annual poll tax of not more than one dollar and fifty cents on every male inhabitant of this state over twenty-one and under fifty years of age,” limit the power of the Legislature to the assessment of such persons and does it exclude all others? It does not expressly exclude all others, and if others are excluded it must be by implication.

A similar question was before the Michigan court in the case of Walcott v. People, 17 Mich. 68. In that case the law in question required express companies, associations, or individuals conducting the business specified to pay into the state treasury a specific state tax of one per cent. on the gross amount of current business. The Michigan Constitution in question reads: “The State may continue to collect all specific taxes accruing to the treasury under existing laws. The legislature may provide for the collection of specific taxes from banking, railroad, plank-road, and other corporations hereafter created.” This last provision which we have italicized, is very much like section 180 of our Constitution.

In the Michigan case it was contended that the Constitution intended to limit the action of the Legislature in the imposition of specific taxes to corporations created by the laws of the state and that a tax on business is prohibited by implication. That the enumeration in article 14, § 10, of certain corporations, as subject to the imposition of specific taxes, is a negative upon the right thus to tax any other organizations, and it was insisted that the Constitution inhibits the imposition of specific taxes on corporations created subsequent to the Constitution. The court said: “The proposition that the tax imposed by the act is prohibited by constitutional implication can not be supported. * * * In the absence of any provision clearly evincing an intention to abandon the power in question, the purpose to relinquish it ought not to be presumed. It is not to be supposed that a matter of such vital consequence would have been left to turn on vague conjecture or shadowy implications. Providence Bank v. Billings, 4 Pet. [514], 561 .” This decision was concurred in by Judge Cooley.

A case very much in point is the Tennessee case of Vertrees v. State Board of Elections, 141 Tenn. 645, 214 S. W. 737, 740. The Tennessee Constitution provides (article 2, § 28): “All male citizens of this State over the age of twenty-one years, except such persons as may be exempted by law on account of age or other infirmity, shall be liable to a poll tax of not less than fifty cents nor more than one dollar per annum.” The court said:

“It is contended that this constitutional expression of the class and gender on whom the poll tax shall be imposed is a restraint of the power of the Legislature to impose the tax on the opposite gender. That is to say, by implication the Contitution prohibits the Legislature from imposing a poll tax upon women.

This argument ignores the well-settled principle that a constitutional limitation upon the power of taxation will never be inferred or implied. The right to tax is essential to the existence of government, and is peculiarly a matter for the Legislature, and the legislative power in this respect can only be restrained by a distinct and positive expression in the fundamental law.

‘The power of taxation being essential to government, and being usually confided in the largest measure to legislative discretion, constitutional limitations upon its exercise will not be inferred or implied, but must be distinctly and positively expressed.’ 37 Cyc. 727; 1 Cooley on Taxation (3d Ed.) p. 177. * * *

This rule was clearly recognized by this court in the case of Kuntz v. Davidson County, 6 Lea (74 Tenn.) 65. In this case the defendant was a subject of the King of Prussia, although he resided in Davidson county. It was insisted that the constitutional provision rendering male citizens liable for poll tax impliedly excluded males who were not citizens. Such an idea, however, was rejected by the court, and it was held that inasmuch as there was no constitutional restriction upon the power of the Legislature in this respect, it might levy a poll tax upon male inhabitants as well as upon male citizens.”

To the same effect is the case of Hill et al. v. Roberts, Governor, 142 Tenn. 215, 217 S. W. 826.

In the case of State v. Cheyenne County, 127 Neb. 619, 256 N. W. 67, 68, 69, the Nebraska court said: “And the proper construction of these constitutional limitations necessarily requires the due application of the principle that limitations or restrictionsupon the exercise of this essential power of sovereignty [the power to tax] can never be raised by implication, but the intention to impose them must be expressed in clear, unambiguous language. Lane County v. Oregon, 7 Wall. (U. S.) 71, 19 L. Ed. 101; State v. Parker, 32 N. J. Law, 426; Hill v. Roberts, 142 Tenn. 215, 217 S. W. 826;Vertrees v. State Board of Elections, 141 Tenn. 645, 214 S. W. 737;Eyre v. Jacob, 14 Grat. (Va.) 422, 73 Am. Dec. 367.”

In the case of Reed v. Bjornson et al., 191 Minn. 254, 253 N. W. 102, 109, the Minnesota court had before it an act imposing income tax and franchise or privilege taxes measured by income for the benefit of school districts of the state. The court said:

“Respondent contends that the exemptions are forbidden by the construction we have placed on our Constitution, and that the enumeration of compulsory exemptions excludes the power to make others. * * * It must be borne in mind that a grant of power to exempt was not being made by the Constitution, but a restriction upon the power to tax was being laid down by the enumeration of compulsory exemptions, except in the instance of personal property exemptions to the head of a family. There is a serious question whether the rule of ‘expressio unius' applies with the same force to a Constitution as to a statute. State ex rel. Putnam v. Holm, 172 Minn. 162, 166, 215 N. W. 200, 54 A. L. R. 333. We think it does not do so here. In Stanley v. Gates, 179 Ark. 886, 892, 19 S.W.(2d) 1000, 1002, speaking of this maxim of construction the court said:

‘That the maxim “is not to be applied with the same rigor in construing a state Constitution as a statute; and that only those things expressed in such positive affirmative terms as plainly imply the negative of what is not mentioned will be considered as inhibiting the powers of the Legislature.” The reason is that the Constitution of a state is...