Johnson v. Diefendorf

• Decision Date: 01 May 1936
• Docket Number: 6300
• Parties: P. E. JOHNSON, Appellant, v. BEN DIEFENDORF, Commissioner of Finance, Respondent
• Court: Idaho Supreme Court

57 P.2d 1068

56 Idaho 620

P. E. JOHNSON, Appellant, v. BEN DIEFENDORF, Commissioner of Finance, Respondent

No. 6300

Supreme Court of Idaho

May 1, 1936

SALES TAX LAW-STATUTES, CONSTRUCTION OF-MORE THAN ONE SUBJECT EMBRACED-SUBJECT MATTER NOT CONTAINED IN TITLE-INVALIDITY OF PART OF ACT-EMERGENCY CLAUSE-EFFECTIVE DATE-REFERENDUM-CONSTITUTIONAL LAW-DUE PROCESS.

1. Sales tax law requirement that dealers be licensed and their licenses be revoked for violation of law held not violative of constitutional requirement that act embrace but one subject and matters properly connected therewith, since requirement promoted dealers' co-operation in collecting and accounting for tax (Sess. Laws 1935, 1st Ex. Sess., chap 12, sec. 4; Const., art. 3, sec. 16).

2. Sales tax law requirement that dealers be licensed and their licenses be revoked for violation of law held invalid because not expressed in title of law (Sess. Laws 1935, 1st Ex Sess., chap. 12, sec. 4; Const., art. 3, sec. 16).

3. Sales tax law provision for licensing of dealers and revocation of their licenses, although invalid because not expressed in title of law, held not to invalidate other portions of law (Sess. Laws 1935, 1st Ex. Sess., chap. 12 sec. 4; Const., art. 3, sec. 16).

4. Sales tax law held not violative of constitutional requirement for uniformity of taxation because exempting sales of motor vehicle fuel already taxed, growers' sales of farm products, and sales made by religious, educational and charitable institutions, since constitutional provision applies to ad valorem taxes, not to excise tax such as sales tax (Sess. Laws 1935, 1st Ex. Sess., chap. 12; Const., art 7, sec. 5).

5. Sales tax law held not violative of due process clauses because requiring seller to collect tax, report collection and pay tax to state without compensation, and to pay tax whether he collects it or not (Sess. Laws 1935, 1st Ex. Sess., chap. 12; Const. U.S. , Amend. 14; Const., art. 1, sec. 13).

6. Sales tax law held unconstitutional as denying due process in so far as empowering commissioner of finance to collect taxes due from retailer and penalties by arbitrary methods (Sess. Laws 1935, 1st Ex. Sess., chap. 12, secs. 17-19, 24; Const. U.S. , Amend. 14; Const., art. 1, sec. 13).

7. Sales tax law held unconstitutional as attempting to deprive judicial department of its jurisdiction in so far as conferring judicial powers on commissioner of finance with respect to collection of taxes and penalties, and as attempting to close doors of justice and deny speedy remedy in so far as forbidding injunction against collection of sales taxes and prescribing procedure for recovery of taxes paid under protest (Sess. Laws 1935, 1st Ex. Sess., chap. 12, secs. 17-19, 24; Const., art. 1, sec. 18; art. 2; art. 5, secs. 2, 13).

8. Sales tax law held not invalidated as a whole by unconstitutionality of sections thereof relating to enforcement of payment of taxes collected by retailer to state (Sess. Laws 1935, 1st Ex. Sess., chap. 12, secs. 17-19, 24).

9. Court will not declare whole statute void because parts thereof are invalid unless all provisions are connected in subject matter, depend on each other, were designed to operate for same purpose, or are otherwise so dependent in meaning that it cannot be presumed legislature would have passed one without the other, and may eliminate unconstitutional provisions expressed in same section or sentence with constitutional provisions where they are perfectly distinct and separable.

10. Grounds of attack on act urged for first time on appeal held not entitled to consideration.

11. Constitution leaves it to discretion of legislature to fix time when emergency act shall go into effect, where emergency is declared in preamble or body of act (Const., art. 3, sec. 22).

12. Statute constitutional as applied to certain class of cases and unconstitutional as applied to another class should be construed to apply to former class.

13. Statute providing that any measure referred to people shall take effect when approved by majority of votes cast thereon, "and not otherwise," applies to acts for operation of which no emergency exists, and does not postpone effective date of emergency act referred to people (Sess. Laws 1933, p. 433, sec. 3; Const., art. 1, sec. 2; art. 3, sec. 1, amended in 1911, 22).

14. Sales tax law declaring existing emergency therefor and declaring that act should be in effect from its passage and approval by Governor held not suspended in its operation by filing of petition for referendum thereon (Sess. Laws 1935, 1st Ex. Sess., chap. 12, sec. 35; Sess. Laws 1933, p. 433, sec. 3; Const., art. 1, sec. 2; art. 3, sec. 1, amended in 1911, 22).

15. Emergency act is subject to referendum (Sess. Laws 1933, p. 433, sec. 3; Const., art. 1, sec. 2; art. 3, sec. 1, amended in 1911, 22).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Suit for injunction to restrain the commissioner of finance from collecting sales tax and from attempting to enforce an act of the legislature purporting to authorize the collection of it. Decree enjoining enforcement of collection of any sum in excess of two per cent of purchase price, of each sale separately; requiring payment by plaintiffs to defendant of all sums theretofore collected, and denying all other relief sought. Modified.

Cause remanded with instructions. No costs awarded.

Oppenheim & Lampert, for Appellant.

The legislative power of the state is vested only in the legislature, subject only to the reservations in the people themselves through the initiative and referendum provisions. (Const., art. 3, sec. 1; Smithberger v. Banning, 129 Neb. 651, 262 N.W. 492.)

Every act of the legislature, whether it carries an emergency clause or not, is subject to referendum in Idaho. (Const., as amended, art. 3, sec. 1; 1933 Sess. Laws, chap. 210; In re Interrogatories by Governor, 66 Colo. 319, 181 P. 197, 7 A. L. R. 526; Sears v. Multnomah County, 49 Ore. 42, 88 P. 522; State v. Brannon, 86 Mont. 200, 283 P. 202, 67 A. L. R. 1020; State v. Clausen, 85 Wash. 260, 148 P. 28, Ann. Cas. 1916B, 810, and note 819.)

On the filing of a petition for referendum on any act passed by the state legislature, said act is suspended and shall take effect and become a law only when it is approved by a majority of the votes cast thereon, and not otherwise. (Bradley v. Union Bridge etc. Co., 185 F. 544, 545; Arkansas Tax Com. v. Moore, 103 Ark. 48, 145 S.W. 199, 201; State v. Carter, 257 Mo. 52, 165 S.W. 773, 775.)

Said act is void and unconstitutional for lack of uniformity in the tax requirement from those of the same class, to wit: The consumer or purchaser; and especially in that it exempts the requirement of said consumer to pay a tax if purchasing from the grower, but requires the payment of the tax if purchased from a peddler or anyone other than the grower. The exemption is not as to taxpayers, that is, consumers, and is not as to a distinction in the nature of the transaction, but is dependent entirely upon the manner in which the salesman acquired possession, and whether the sale is one producing a tax not fractional in character. (Const. , art. 7, sec. 5; Winter v. Barrett, 352 Ill. 441, 186 N.E. 113, 89 A. L. R. 1398.)

An excise tax such as the purchase tax, or the retail tax, as distinguished from the license tax provided for in this act must be such as to operate uniformly upon all persons within the class, as the class may be designated in the legislative act. (Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; Curtis v. Pfost, 53 Idaho 1, 21 P.2d 73; 61 C. J. 107; State v. Crosson, 33 Idaho 140, 190 P. 922.)

Geo. Donart and J. F. Martin, for Respondent.

Where certain provisions of an act are invalid and others valid, the latter are not affected by the void provisions unless they are plainly dependent upon each other and so inseparably connected that they cannot be divided without defeating the object of the act. (In re Edwards, 45 Idaho 676, 266 P. 665; Stark v. McLaughlin, 45 Idaho 112, 261 P. 244; State v. Bird, 29 Idaho 47, 156 P. 1140; Gillesby v. Board of County Commrs., 17 Idaho 586, 107 P. 71.)

Where a statute would be unconstitutional as applied to a certain class of cases arising thereunder and is constitutional as applied to another class, it should be held to have been intended by the legislature to apply only to the class to which it would constitutionally apply. (Northern P. R. Co. v. Gifford, 25 Idaho 196, 136 P. 1131.)

The provisions of chapter 210 of the Idaho Session Laws of 1933 (the referendum) are inapplicable to legislative acts passed as emergency measures. (Sec. 3, chap. 210, Sess. Laws 1933; sec. 22, art. 3, Const.; sec. 1, art. 3, Const.)

The provisions of the sales tax, being House Bill 76, all relate directly or indirectly to the same subject and have a natural connection to the subject expressed in the title and subject matter of this act is expressed in the title of it. Nothing more is required. (Art. 3, sec. 16, Const.; Achenbach v. Kincaid, 25 Idaho 768, 140 P. 529; Boise City v. Baxter, 41 Idaho 368, 238 P. 1029; Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 68 P. 295, 101 Am. St. 201.)

The state of Idaho has the authority to license a business and require the license holder to collect a sales tax without compensation to him and such requirements of an act are not violative of the Fourteenth Amendment of the Federal Constitution. (J. C. Penney Co. v. Diefendorf, 54 Idaho 374, 32 P.2d 784; Pierce Oil Corp. v. Hopkins, 264 U.S. 137, 44 S.Ct. 251, 68 L.Ed. 593.)

MORGAN J. Holden, J., concurs, BUDGE, J., Specially Concurring, GIVENS, C. J., Concurring in Part and Dissenting in Part. Ailshie, J., did not sit with ...