City of Cincinnati v. DeGolyer, 69-253

• Decision Date: 17 February 1971
• Docket Number: No. 69-253,69-253
• Citation: 267 N.E.2d 282,25 Ohio St.2d 101
• Parties: , 48 A.L.R.3d 1318, 54 O.O.2d 232 CITY OF CINCINNATI, Appellee, v. DeGOLYER, Appellant.
• Court: Ohio Supreme Court

Page 101

25 Ohio St.2d 101

267 N.E.2d 282, 48 A.L.R.3d 1318, 54 O.O.2d 232

CITY OF CINCINNATI, Appellee, v. DeGOLYER, Appellant.

No. 69-253.

Supreme Court of Ohio.

Feb. 17, 1971.

Syllabus by the Court

1. A municipal income tax, due and unpaid, is a debt within the meaning of Section 15 of Article I of the Ohio Constitution, and, in the absence of wilful failure or refusal to pay, or fraud, one may not be imprisoned for failure to pay such a tax. (Voelkel v. Cincinnati, 112 Ohio St. 374, 147 N.E. 754, modified.)

2. A sovereign may make the wilful failure or refusal to pay or the fraudulent evasion of a tax an offense and provide for imprisonment therefor, and such imprisonment does not violate the provision of Section 15 of Article I of the Ohio Constitution prohibiting imprisonment for debt.

The defendant was charged by affidavit in the Hamilton County Municipal Court, Criminal Division, for failure to pay the city of Circinnati income tax for the year 1966. The appellant moved for an order quashing the affidavit on the ground that the tax ordinance, by its terms, makes the tax a debt and that the provision for criminal liability, including a fine and imprisonment, violates Section 15 of Article I of the Constitution of Ohio.

The trial court sustained the motion, quashed the affidavit and discharged the appellant.

Upon appeal, the Court of Appeals for Hamilton County reversed the trial court.

The cause is before this court upon an appeal as of right and pursuant to the allowance of a motion to certify the record.

William A. McClain, City Solicitor, Ralph E. Cors and William B. Singer, Cincinnati, for appellee.

Howard D. Fields and James R. Rimedio, Cincinnati, for appellant.

C. WILLIAM O'NEILL, Chief Justice.

Section 12 or the Cincinnati income tax ordinance provides that one who fails, neglects or refuses to pay the tax is guilty of a misdemeanor and may be fined or imprisoned therefor.

The sole question presented by this appeal is whether a provision in an income tax ordinance providing for imprisonment for failure to pay the tax violates Section 15 of Article I of the Constitution of Ohio prohibiting imprisonment for debt.

Section 15 of Article I of the Constitution of Ohio provides as follows:

'No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.'

That provision of our fundamental law, like many others, stems from the experiences of persons who emigrated from England to the colonies because of the rigors of English laws. One of the harshest of those laws was that of imprisonment for debt. Regardless of the ability or inability of a debtor to comply with the demands of his creditors, if he failed to pay that debt he was subject to imprisonment for an indefinite period, during which he had to maintain himself-at his own expense, on the charity of others, or starve. It was therefore natural that in this new country imprisonment for debt should be prohibited.

However, it has long been held that the constitutional prohibition against imprisonment for debt does not apply to taxes. Cooley on Taxation (4 Ed.), 91 and 2665, Sections 22 and 1349. The basis of the distinction is ordinarily that a debt, within the meaning of the constitutional provision is one which arises out of a contractual or consensual obligation; that a tax is not such an obligation but is one imposed by the sovereign by virtue of its sovereign powers. In other words, this is another example of the ancient and outmoded theory that 'the King can do no wrong.'

No such distinction is made in the Ohio constitutional provision. No debts are excepted therefrom, except those arising out of fraud.

The court, in People v. Neal C. Oester, Inc. (1957), 154 Cal.App.2d Supp. 888, 316 P.2d 784, in considering the general rule, pointed out that the cases upon which such rule rule is founded are primarily license cases, with an excise tax involved; that imprisonment was not for failure to pay the tax as such, but was for engaging in business without paying the tax which gave one the right to engage in business. Such was the case of Voelkel v. Cincinnati (1925), 112 Ohio St. 374, 147 N.E. 754, which imposed an excise tax on the practice of dentistry.

In the instant case, the court is considering an income tax, not an excise tax. The tax is not for the right to engage in business but is levied generally upon the income of all, regardless of occupation.

The general rule that a tax is not a debt within the meaning of the constitutional prohibition is unrealistic.

Generally speaking, a debt is an obligation to pay money. Whether this obligation arises by contract, by judicial determination of tort liability, or by imposition of a tax by the sovereign, it is still an obligation to pay money. Thus, a tax imposed by the sovereign is a debt.

It is a fundamental principle of statutory construction that words in a statute or constitution will be given their natural and ordinary meaning, unless the context of the law being considered indicates a more restricted or different meaning.

There is certainly nothing in the constitutional provision here being considered which in any way indicates, or would require, that the word 'debt' as used therein should be given anything other than its ordinary meaning. To the average person, an unpaid tax is a debt.

This court has determined that a tax is a debt. In State ex rel. Hostetter v. Hunt (1937), 132 Ohio St. 568, at page 572, 9 N.E.2d 676, at page 679, the court said:

'The word 'debt' is defined in Bouvier's Law Dictionary as being 'A sum of money due by certain and express agreement.' * * * Debt is also therein defined as 'All that is due a man under any form of obligation or promise,' * * *.

'While a tax may not be a debt due the county by certain and express agreement between the parties, it is money due under a much stronger obligation. A tax is a liability created by statute. * * *'

The Probate Code also makes a tax a debt of the decedent. R.C. 2117.18.

To hold that a tax is a debt for one purpose, as where it benefits the state, yet hold that it is not a debt within the constitutional 'debt' provision, would be inconsistent.

This court has gone even farther in determining that one cannot be imprisoned for failure to pay...