FLASKA v. State

• Decision Date: 19 February 1947
• Docket Number: No. 4959,4959
• Citation: 177 P.2d 174,51 N.M. 13
• Parties: FLASKA, County Assessor, v. STATE et al.
• Court: New Mexico Supreme Court

51 N.M. 13

177 P.2d 174

FLASKA, County Assessor,

v.STATE et al.

No. 4959.

Supreme Court of New Mexico.

Dec. 5, 1946.

Rehearing Denied Dec. 31, 1946.

Second Rehearing Denied Feb. 19, 1947.

[177 P.2d 175, 51 N.M. 15]

C. C. McCulloh, Atty. Gen., Robert W. Ward, and William R. Federici, Asst. Attys.Gen., and E. P. Ripley, Special Tax Attorney for State Tax Commission, of Santa Fe, for appellants.

M. A. Threet, of Albuquerque, for appellee.

CHARLES H. FOWLER, District Judge.

Flaska, the Bernalillo County Assessor, sued for a declaratory judgment to advise whether the New Mexico statute commonly called the 'Soldier's Tax Exemption Law' (Chapter 130, Laws of 1923, as amended, now Sections 76-111 to 76-117, NMSA 1941) authorizes allowance of the tax exemption to soldiers whose period of service was during World War II. (For brevity the term 'soldier' is used to designate any person who is or may be eligible to have the exemption under the statute.)

The issues were made up by the pleadings to call for determination of the question.

The trial court held that the Soldier's Tax Exemption Law as written is not applicable to soldiers of World War II. This holding followed upon the court's conclusion that the New Mexico Constitution does not authorize the legislature to grant the tax exemption to a soldier whose period of military service was during any war occurring subsequent to the adoption of the Amendment which is now Article 8, Section 5, of the Constitution. Since that section contains the only grant of power to the legislature to provide for the exemption, it follows that if its provisions relate only to soldiers whose pertinent period of service was in some war prior to the adoption of the Amendment, all statutes passed in the exercise of such power must also be limited to relate to such soldiers of prior wars.

Judgment was rendered in accordance with the court's decision and this appeal was taken by the defendants.

The primary question for decision is: Does the New Mexico Constitution, Article 8, Section 5, authorize the legislature to grant the tax exemption to soldiers of World War II?

If that question be answered here in the negative, the matter is concluded. If that question be answered here in the affirmative, then answer will be required to the further question: Does the Soldier's Tax Exemption Law as written grant the exemption to soldiers of World War II?

Article 8, Section 5, of the Constitution reads:

'The legislature may exempt from taxation property of each head of a family to the amount of two hundred dollars, and the property of every honorably discharged soldier, sailor, marine and army nurse, and the widow of every such soldier, sailor, or marine, who served in the armed forcesof the United States at any time during the period in which the United States was regularly and officially engaged in any war, in the sum of two thousand dollars. Provided, that in every case where exemption is claimed on the ground of the claimants having served with the military or naval forces of the United States as aforesaid, the burden of proving actual and bona fide ownership of such property, upon which exemption is claimed, shall be upon the claimant.'

The section was proposed as a constitutional amendment by joint resolution of the legislature, approved March 11, 1921, and was adopted by the people at a special election held September 20, 1921. World War I was ended officially by Congressional resolution and Presidential proclamation on July 2, 1921. World War II is the only war in which the United States has been regularly and officially engaged since the Amendment was adopted and became part of the Constitution.

The trial court noted that the Amendment, as it relates to soldiers, uses only the past tense. The court held that the provision authorizes the legislature to grant the tax exemption to soldiers of World War I and prior wars, but does not authorize such a grant to soldiers of any war subsequent to the time of the adoption of the Amendment. In other words, the holding was that Section 5 related and relates only to those soldiers whose eligibility for the exemption was established, or made possible, already through having served in the armed forces of the United States during a period in which the nation had been regularly and officially engaged in some war which was fought before the adoption of the Constitutional Amendment. It may be noted that in the statute, as in the constitutional provision, only the past tense and the same verb forms are used.

The appellee presses the argument here. In addition to his claim that the language used is plain and shows the certain intent, he declares that the history of the Amendment shows that in adopting it the people had in mind the first World War, then just concluded, and that they limited the authority conferred upon the legislature to permission to grant the exemption to soldiers of that and prior wars. Of this he says:

'The first World War was over. People all over the world, the United States, and New Mexico were rejoicing that the War to end wars was ended. The people of New Mexico, out of a grateful heart, in order to show their appreciation for the sacrifices made by their sons and daughters, expressed their wants, intention and designs in adopting the Amendment to the Constitution granting tax exemptions to those who had participated in that greatconflict, and to the dependents of those who did not return. The intention, want and design of the people of the State of New Mexico, in adopting the Amendment to the Constitution, was to reward, in a measure, those who had fought the last of all wars. This was what they had in mind. They could not foresee that another great conflict was imminent. They were thinking of the present and the past, with no thought of the future. * * * They, the people, desired to reward the soldiers who had rendered services in the defense of their country in past wars, as all pertinent language of the amendment restricted its application to wars fought prior to its adoption. The intent of the people was to leave to the future the adjustment of other situations when they should arise. No one contemplated another war, and no provision was made for the soldiers of that war.'

Thus is the contention of the appellee, Flaska, plainly set out. Is his conclusion correct concerning the will of the people in adopting the Amendment? If indeed the will of the people was as stated by the appellee, then the constitutional provision does restrict the legislature and the judgment of the trial court was correct.

It is the duty of this court to search out and declare the true meaning and intent of the Amendment as adopted by the people.

'Terms used in a Constitution must be taken to mean what they meant to the minds of the voters of the state when the provision was adopted.' Tintic Standard Mining Co. v. Utah County, 80 Utah 491, 15 P.2d 633, 637.

'Constitutions do not change with the varying tides of public opinion and desire. The will of the people therein recorded is the same inflexible law until changed by their own deliberative action, and therefore the courts should never allow a change in public sentiment to influence them in giving a construction to a written Constitution not warranted by the intention of its founders.' 11 Am.Jur. 659, Sec. 50, Constitutional Law.

If the language used in the provision in question is plain and definite and free from ambiguity, when taken in its plain and ordinary sense, there is no occasion for construction of it. If the meaning of the language is not clear and precise, that is if more than one fair and reasonable interpretation can be put upon the language employed, then the history of the Amendment and the conditions which prompted its framing and adoption may be considered to shed light on the terms used and to ascertain truly 'the will of the people therein recorded.'

By the Amendment the legislature ever since 1921 has been, and today is, authorized to exempt from taxation, to theamount of $2000, the property of ' every honorably discharged soldier * * * who served * * * at any time during the period in which the United States was regularly and officially engaged in any war.'

By a statute passed in 1923 the legislature undertook to allow such tax exemption to ' every honorably discharged soldier * * * resident of New Mexico and who served * * * for thirty [30] days or more at any time in which the United States was officially engaged in any war.' § 76-111. By amendment in 1933 it was provided that the claimant's residence must be acquired prior to January 1, 1934.

Prompting the bringing of this suit, this situation faces the County Assessor: Two men stand before him, each demanding allowance of the tax exemption. Each of them is an honorably discharged soldier, a resident of New Mexico since a time prior to January 1, 1934, who served in the armed forces of the United States for more than thirty days at a time in which the United States was regularly and officially engaged in war. One of these claimants is a 'soldier' who served with the UnitedStates Army in France during World War I; the other of them is a 'soldier' who served with the United States Army in France during World War II. Does the language of the Amendment, now Article 8, Section 5, of the Constitution, permit the allowance of the tax exemption to the first of these men, and require it to be withheld from the second of them? The service of both men is in the past, and must be spoken of in the past tense. No words can describe more fitly the status of these men in regard to their army service than the language of the Amendment, with its past tense; each honorably discharged, his army term served during a time in which the United States was engaged in war. Should the misfortune of war again involve us, this same language of the Amendment will fitly describe the veteran of that third World War at the hour when, with honorable discharge in hand, he...