In re Hunter's Estate

• Court: Colorado Supreme Court
• Writing for the Court: HOLLAND, Justice.
• Citation: In re Hunter's Estate, 49 P.2d 1009, 97 Colo. 279 (Colo. 1935)
• Decision Date: 09 September 1935
• Docket Number: 13726.
• Parties: In re HUNTER'S ESTATE. v. STATE et al. HUGHES et al.

49 P.2d 1009

97 Colo. 279

In re HUNTER'S ESTATE.

HUGHES et al. v. STATE et al.

No. 13726.

Supreme Court of Colorado, En Banc.

September 9, 1935

Error to County Court, City and County of Denver; Geo. A. Luxford Judge.

In the matter of the estate of Estelle Hunter, deceased. To review a judgment holding the estate to be subject to a tax under Laws 1933, p. 764, in addition to the ordinary inheritance tax Gerald Hughes and another, as executors of the last will and testament of Estelle Hunter, deceased, and others, opposed by the State and others, bring error.

Affirmed.

HILLIARD and CAMPBELL, JJ., dissenting.

Hughes & Dorsey, of Denver, for plaintiffs in error.

Paul P Prosser, Atty. Gen., Charles Roach, First Asst. Atty. Gen and Pierpont Fuller, Jr., Asst. Atty. Gen., for defendants in error.

HOLLAND Justice.

Plaintiffs in error, the executors, trustees, and beneficiaries, under the terms of the will of Estelle, B. Hunter, deceased, will be herein referred to as objectors, and defendants in error, as the state.

In the course of administration in the county court, the estate was subject to an inheritance tax under the provisions of the statutes of the state of Colorado. The assessment was made against the estate, approved by the court, and paid without objection in due course. In addition thereto, the estate was held to be subject to an additional tax under the provisions of chapter 145, Session Laws of 1933 (page 764), which, including the title, is as follows:

'An Act to provide funds for the payment of old age pensions and for the assistance of aged, indigent persons. * * *

'Section 1. In addition to all other fees, charges, and impositions now fixed by law, there shall be assessed and collected by the Governmental Department, person, or party in charge, under whose jurisdiction the present collection is now required by law, the following fees, charges, sums and impositions, which fees, charges, impositions and sums are to be used for the purposes of this Act and not otherwise.

'(a) Ten per cent (10%) additional amount to the fees which are due and paid to the Secretary of State, upon incorporation of any corporation or association for profit.

'(b) An additional sum of One ($1.00) Dollar to be paid annually, for the registration or re-registration of motor vehicles.

'(c) Ten per cent (10%) additional upon the amount of any tax payable under the provisions of the inheritance tax laws of this State.

'In computing the amount of the additional tax as provided in this Section, the nearest multiple to five cents (5¢) shall be taken in all cases.'

To the order approving and confirming this 10 per cent. additional tax under subsection (c), the objectors filed written objections, relating to the validity of the tax, as well as the amount ordered to be paid. Demurrers to these objections were sustained. Objectors elected to stand on the objections as made, and now prosecute this writ of error.

The contentions embraced in the objections are: That the act, under which the additional levy was made, conflicts with the following constitutional provisions:

'(a) Article 10, § 7, Colorado Constitution which prohibits the General Assembly from imposing taxes for the purposes of any county, city, town or other municipal corporation;

'(b) Article 10, § 3, Colorado Constitution, which requires that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax;

'(c) Article 5, § 25, Colorado Constitution, which prohibits the General Assembly from passing local or special laws;

'(d) The provision of the Fourteenth Amendment to the Constitution of the United States, which prohibits the denial by any state to any person within its jurisdiction of the equal protection of the laws;

'(e) The provision of the Fourteenth Amendment to the Constitution of the United States, by which each state is prohibited from depriving any person of property without due process of law, and the like provision of article 2, § 25, Colorado Constitution;

'(f) Article 5, § 21, Colorado Constitution, which provides that no bill except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title;

'(g) Article 5, § 24, Colorado Constitution, which provides that no law shall be revived or amended or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length.'

Further grounds of objection are that: 'Without waiver of or prejudice to said contention that the exaction here attempted to be imposed is wholly without authority and completely invalid, and the amount thereof, as here attempted to be imposed, is excessive and beyond authority of law, in that the 10% referred to in subsection (c) of section 1 of chapter 145, Session Laws 1933 (page 764) was in this instance applied not to the amount of the inheritance tax actually payable and paid in the Matter of the Estate of Estelle Hunter, Deceased, but to the amount thereof as it would have been if the payment thereof had not been made within six months after the death of said decedent.'

It is contended that the act imposes a new tax, distinct from the inheritance tax. We hold that the act is not susceptible to that interpretation. It is by appropriate words definitely anchored to the operation of the existing inheritance tax law, with manifest intent that it be an additional and not a separate and distinct tax.

We approach the determination of the questions presented with abidance in the familiar rule, that we are not at liberty to hold an act unconstitutional, unless it is clearly so. If a reasonable doubt appears, the resolution of that doubt must be in a pronouncement of the validity of the questioned act. The objections presented may be discussed under three major heads: First. That the act imposes a tax for county purposes in violation of section 7, article 10, Colorado Constitution. Second. That it is in violation of the 'due process,' 'uniformity,' and 'equal protection' clauses of both State and Federal Constitutions. Third. That it is in violation of sections 21 and 24 of article 5 of the Colorado Constitution, which refer to the subject and titles of acts, and the amendment or extension of laws.

Section 7 of article 10, of the Colorado Constitution is as follows: 'The general assembly shall not impose taxes for the purposes of any county, city, town or other municipal corporation, but may by law, vest in the corporate authorities thereof respectively, the power to assess and collect taxes for all purposes of such corporation.'

A discussion similar to the one now Before us occurred in the case of Walker v. Bedford, 93 Colo. 400, 26 P.2d 1051, on an essentially different act there in question, which provided for the relief of the poor and destitute. This court, by the majority opinion, held that act to be for a county purpose. Since the announcement of that decision, the present law has been enacted, and it is a reasonable presumption that the Legislature at the time of the passage of the act here in question was cognizant of the declaration by this court, that as the law then stood, such was a county function, and with that realization, exercised its discretionary power in acting for, as it is said, the public good, and fixed and determined the purpose of this act as a state duty, and governmental function. That this is a legislative prerogative cannot be denied.

The test, as to 'county purposes,' is: Is it for strictly county uses, for which the county or its inhabitants alone would benefit, or is it for a purpose in which the entire state is concerned or will benefit? In the existing law, chapter 144, Sess. Laws 1933 (page 748), counties as such are disregarded. The counties are, or any county is, left free to act, for what they, or it, may determine to be the particular or local need. The burden of supplying funds under chapter 144, rests solely upon the state. The state retains control of the funds so created and raised, but passes it in trust to the county commissioners, as trustees, subject to the order of the county court for its distribution.

Subsection (c) of section 1, chapter 145, Sess. Laws 1933 (page 764), is not subject to the objection that it lays an additional tax to that already authorized by law without specifically amending the existing law. We have numerous instances of levies, additional to those authorized by existing laws, and many such instances are to be found in ad valorem property taxes for state purposes, or for the use of state institutions. Chapter 145 (page 764), as a whole, imposes three additional excise taxes for only one purpose. This is permissible. This court has so announced with reference to our general Revenue Act of 1902 (C. L. § 7177 et seq.), which imposed various excise taxes for general revenue. Such contemporary legislation lends strength to our exposition of the statute here in question.

As to the question whether subsection (c) of section 1, chapter 145 (page 764), offends against section 7, article 10, of the Constitution , in that it lays a tax for a county purpose, its solution must depend solely upon whether or not chapter 144, p. 748, Session Laws 1933 (the old age pension act), so offends. As to this, chapter 144 has not been directly attacked in this case, but if subsection (c), § 1 c. 145, p. 764, is vulnerable to this objection, chapter 144 is likewise assailable. That chapter 144 does not so offend is the irresistible conclusion to be drawn from the opinion of Mr. Justice Burke, of this court on petition for rehearing in the case of Walker v. Bedford, 93...