Bedford v. Sinclair, 15358

• Decision Date: 20 March 1944
• Docket Number: 15359.,15358
• Citation: 112 Colo. 176,147 P.2d 486
• Parties: BEDFORD, State Treasurer, et al. v. SINCLAIR, County Treasurer. SAME v. LOGAN et al.
• Court: Colorado Supreme Court

147 P.2d 486

112 Colo. 176

BEDFORD, State Treasurer, et al. v. SINCLAIR, County Treasurer.

SAME v. LOGAN et al.

Nos. 15358, 15359.

Supreme Court of Colorado

March 20, 1944

Error to District Court, City and County of Denver; Stanley H Johnson, Judge.

Error to District Court, Arapahoe County; Samuel W. Johnson, Judge.

Action for declaratory judgment by Charles B. Sinclair, as Treasurer of the County of Arapahoe, against Homer F. Bedford Treasurer of the State of Colorado, who was substituted for Charles M. Armstrong, Treasurer. A mandamus proceeding by Homer F. Bedford, Treasurer of the State of Colorado, and another against P. W. Logan, Charles B. Sinclair, as Treasurer of the County of Arapahoe, and others, to compel the County Treasurer to segregate percentage of the revenue arising from levies on liquors and deposit them in the state treasury to credit of old age pension fund. From the judgments, the State Treasurer and another bring error. The two cases were consolidated for disposition on review.

Judgments in so far as to effect that funds involved should be credited to old age pension fund, reversed, and causes remanded, with instructions.

Gail L. Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and George K. Thomas, Asst. Atty. Gen., for plaintiffs in error.

Malcolm Lindsey and Thomas H. Gibson, both of Denver, amici curiae.

C. L. Harrison, of Aurora, for defendants in error Sinclair and others.

O. Otto Moore, of Denver, for defendants in error Logan and Blagg.

HILLIARD Justice.

The over-all question presented by these two cases for review, and consolidated for disposition, has to do with the allocation of revenues arising from ad valorem levies on malt, vinous and spirituous liquors. In case No. 15358, a county treasurer, preplexed as to his duty in relation to the allocation of such revenues, sought a declaratory judgment in the premises. The trial court there adjudged that section 2(b) of the old age constitutional amendment (Article XXIV) operates upon all taxes on liquor, including ad valorem taxes, but that such provision 'is not self-executing.' In case No. 15359, proceeding as in mandamus, it was sought to compel the identical county treasurer to segregate eighty-five per cent. of the revenue arising from general ad valorem levies on liquor, and deposit the same in the state treasury to the credit of the old age pension fund. On the question of the applicability of the amendment, the latter court adjudged, as had the other; but, contrary thereto, ordered and adjudged that the amendment was self-executing, and required the county treasurer to 'pay to the treasurer of the state of Colorado for deposit in the old age pension fund * * *, eighty-five per cent (85%) of the ad valorem taxes collected upon intoxicating liquor * * * and being held by him,' etc.

Although only section 2(b) of the pension amendment is directly involved, we think study of the entire article will contribute to an understanding of the issues presented. It reads as follows:

'§ 1. A fund to be known as the old age pension fund is hereby created and established in the treasury of the state of Colorado.

'§ 2. There is hereby set aside, allocated and allotted to the old age pension fund sums and money as follows:

'(a) Beginning January 1, 1937, eighty-five per cent. of all net revenue accrued or accruing, received or receivable from any and all excise taxes now or hereafter levied upon sales at retail, or any other purchase transaction; together with eighty-five per cent. of the net revenue derived from any excise taxes now or hereafter levied upon the storage, use, or consumption of any commodity or product; together with eighty-five per cent. of all license fees imposed by the provisions of [chapter 189 Session Laws of Colorado, 1935] sections 1 to 36, both inclusive, of chapter 144 of volume 4 of the 1935 Colorado Statutes Annotated, and amendments thereto; provided, however, that no part of the revenue derived from excise taxes now or hereafter levied, for highway purposes, upon gasoline or other motor fuel, shall be made a part of said old age pension fund.

'(b) Beginning January 1, 1937, eighty-five per cent of all net revenue accrued or accruing, received or receivable from taxes of whatever kind upon all malt, vinous, or spirituous liquor, both intoxicating and non-intoxicating, and license fees connected therewith.

'(c) All unexpended money in any fund of the state of Colorado, or political subdivision thereof, as of January 1, 1937, which prior to said date has been allocated to the payment of an old age pension.

'(d) All grants in aid from the federal government for old age assistance.

'(e) All inheritance taxes and incorporation fees appropriated under [chapter 145, Session Laws of Colorado, 1933] sections 29, 30 and 31 of chapter 119 of volume 4 of the 1935 Colorado Statutes Annotated, for old age pensions.

'(f) Such other money as may be allocated to said fund by the general assembly.'

It is clear, that, while the pension amendment to the Constitution directly allocates certain excise tax levies and license fees, and, contingently, other revenues, to the old age pension fund, still, in and of its terms, such amendment does not operate to levy a tax of any kind upon any thing. Likewise, as we have held, it is not self-executing except as to the establishment of the pension fund, which 'becomes the fund out of which payments will be made under the laws heretofore in force until said Amendment * * * is otherwise effectuated by legislation.' In re Interrogatories, 99 Colo. 591, 65 P.2d 7, 11; Fairall v. Frisbee, 104 Colo. 553, 92 P.2d 748.

In clarification of the problem it should be borne in mind that liquor is property, and while it is subject to excises and other...