In re Opinion of the Justices

• Decision Date: 06 April 1923
• Citation: 121 A. 902
• Parties: In re OPINION OF THE JUSTICES.
• Court: Maine Supreme Court

121 A. 902

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Maine.

April 6, 1923.

Questions submitted by the House of Representatives to the Justices of the Supreme Judicial Court, April 6, 1923, and the answers thereon.

State of Maine, House of Representatives.

April 6, 1923. It appearing to the House of Representatives that the following is an important question of law and the occasion a solemn one—

Ordered: The Justices of the Supreme Judicial Court are hereby requested to give to the House of Representatives, according to the provisions of the Constitution in this behalf, their opinion on the following questions, to wit:

Whereas, the state of Maine has spent large sums of money in constructing highways and bridges, which are used to a great extent by the owners and operators of motor vehicles; and

Whereas, all the people of the state are benefited by the maintenance of an adequate system of properly constructed highways and bridges; and

Whereas the gasoline and other, combustion fuels are used in the driving of motor vehicles on the highways and bridges:

Question 1. Has the Legislature the right and authority under the Constitution of the state to levy and assess a reasonable tax or charge per gallon upon all gasoline and other internal combustion engine fuel except kerosene sold within the state, the net proceeds of such tax to be used in the maintenance of such highways and bridges, as follows: Fifty per cent. thereof for the maintenance of state and state aid highways, interstate, intrastate, and international bridges, and the balance to be added to the fund for the construction of third-class highways so called?

Question 2. Has the Legislature the right and authority under the Constitution of the state to levy and assess a reasonable tax or charge per gallon upon all gasoline and other internal combustion engine fuel sold within the state — the net proceeds of such tax to be used in the maintenance of such highways and bridges as follows: Fifty per cent. thereof for the maintenance of state and state aid highways, interstate, intrastate, and international bridges, and the balance to be added to the fund for the construction of third-class highways so called?

Question 3. If the Legislature has the right and authority to levy and assess the tax referred to in either question 1 or question 2, would the Legislature have the right and authority to assess such tax without an exemption as to gasoline and other internal combustion engine fuel sold for use in motor boats and farm tractors when not using the highways?

Question 4. If the Legislature has the right and authority to levy and assess such tax referred to in either question 1 or question 2, would the Legislature have the right and authority to assess such tax with an exemption as to gasoline and other internal combustion engine fuel sold for use in motor boats and farm tractors when not using the highway?

Question 5. If the Legislature has the right and authority to levy and assess the tax referred to in either question 1 or question 2, can such tax be legally assessed to and against the original distributor selling gasoline and other internal combustion engine fuel within the state?

Question 6. If the Legislature has the right and authority to levy and assess the tax referred to in either question 3 and question 4, can such tax be legally assessed to and against the original distributer selling gasoline and other internal combustion engine fuel within the state?

Presented by Mr. Nichols of Portland.

House. April 6, 1923. Read and passed.

Clyde R. Chapman, Clerk.

To the House of Representatives of the Eighty-First Legislature:

The undersigned Justices of the Supreme Judicial Court have fully considered the questions submitted to them under House Order passed April 6, 1923.

Before answering these inquiries, however, it should be stated that some of the Justices entertain the view that the constitutional provision by virtue of which they are obliged to give their opinion upon important questions of law and upon solemn occasions when required by the Governor, Council, Senate, or House of Representatives, Constitution of Maine, art. 6, § 3, has no application to this instance. They think that, while important questions of law are raised, the occasion cannot properly be regarded a solemn one, because the submission of the questions was voted on the eve of the final adjournment of the Legislature, and therefore any answers that might be returned could be of no practical advisory effect as the time for action had already passed.

Moreover as these questions were propounded only one day before the final enactment of a law embodying some at least of the principles therein involved (Pub. Laws 1923, c. 224), the individual rights of citizens may be thereby affected. Those rights can be determined only in a judicial proceeding where the privilege of hearing and argument is accorded, and ought not to be prejudiced by an advisory opinion which, although it does not have the binding force of a judgment, may yet be regarded as detrimental to the interests of those to whom it is adverse. However, as the questions relate to certain abstract propositions of law and not to any existing statute, with this expression of respectful protest, these Justices have concluded to unite with their associates in the unanimous opinion as follows:

Question 1. "Has the Legislature the right and authority under the Constitution of the state to levy and assess a reasonable tax or charge per gallon upon all gasoline and other internal combustion engine fuel except kerosene sold within the state, the net proceeds of such tax to be used in the maintenance of such highways and bridges, as follows: Fifty per cent. thereof for the maintenance of state and state aid highways, interstate, intrastate, and international bridges, and the balance to be added to the fund for the construction of third-class highways so called?"

Answer. The answer to this question depends upon the nature of the contemplated tax. If a property tax, it obviously offends the Constitution of Maine, art. 9, § 8; "All taxes upon real and personal estate, assessed by authority of this state, shall be apportioned and assessed equally, according to the just value thereof." Amendment XXXVI as to intangible property is not involved. To single out any particular species of property, or any particular commodity, gasoline, internal combustion engine fuel, or what not, and impose a property tax upon it unequal in comparison with the tax upon other commodities as to value would be void. The equal apportionment and assessment upon all real and personal estate required by our organic law would be violated. This proposition is too plain for discussion.

If, however, the proposed tax is an excise tax then it would be authorized and valid. The vital words of this propounded question are "a reasonable tax or charge per gallon upon all gasoline, etc., * * * * sold within the state." In other words, it is not the value of the gasoline and fuel as property owned which is the subject of taxation, but the sale of and dealing in the article whatever its value. The tax is measured, not by the worth of the commodities, but by the amount of business transacted in dealing with them computed by gallons, and this fits the definition of an excise tax which is:

"A tax imposed upon the performance of an act, the engaging in an' occupation or the enjoyment of a privilege." 26 R. C. L. p. 236.

In this state the full power of taxation is vested in the Legislature and is measured, not by grant, but by limitation. "As to the executive, and, judiciary, the Constitution measures the extent of their authority; as to the Legislature, it measures the limitations upon its authority." Sawyer v. Gilmore, 109 Me. 169, 83 Atl. 673; Laughlin v. Portland, 111 Me. 486, 90 Atl. 318, 51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734. The provision before quoted marks the limitation of legislative power in the taxation of real and personal estate. But our Constitution contains no provision limiting the legislative imposition of excise taxes or, to use the language of the court:

"Our Constitution imposes no restriction upon the Legislature in imposing taxes upon business." State v. Telegraph Co., 73 Me. 518, 531.

Acting in pursuance of its power, the Legislature has imposed excise taxes from time to time in various forms, using the term excise in the sense of other than a property or poll tax. Many of these have been passed upon and upheld by the court, thus: Corporate franchises tax upon railroads, State v. Maine Central R. R. Co., 74 Me. 376; express companies, State v. B. & P. Express Co., 100 Me. 278. 61 Atl. 697; telegraph companies, State V. W. U. Tel. Co., 73 Me. 518; inheritance or succession taxes, State v. Hamlin, 86 Me. 495. Within this general class are automobile registration taxes and occupation taxes, such as licensed auctioneers, R. S. c. 41, § 3, and itinerant venders, R. S. c. 41, § 17.

In this respect of absence of limitation upon the power of the Legislature to impose excise taxes, the Constitution of Maine differs from that of New Hampshire, which restricts the Legislature of that state "to proportional and reasonable assessments, rates and taxes." The court has construed this to include excise...