Martin v. J. Bacon & Sons
| Decision Date | 26 March 1937 |
| Citation | 105 S.W.2d 569,268 Ky. 612 |
| Parties | MARTIN v. J. BACON & SONS. |
| Court | Kentucky Court of Appeals |
Rehearing Denied June 15, 1937.
Appeal from Circuit Court, Franklin County.
Action between James W. Martin, individually and as Commissioner of Revenue of the Commonwealth of Kentucky, and J. Bacon & Sons. From an adverse judgment, James W. Martin appeals.
Reversed for proceedings consistent with opinion.
B. M Vincent, Atty. Gen., and M. B. Holifield, Asst. Atty. Gen for appellant.
Woodward Dawson & Hobson, of Louisville, for appellee.
This is an appeal from a judgment of the Franklin circuit court, wherein that part of section 4281d-2, Kentucky Statutes, designated by the letter (f) of section 2 of the act of the General Assembly passed at its Third Extra Session (Acts 1936, 3d Ex.Sess., c. 3), beginning on the 30th day of March, 1936, declaring said section, imposing a tax on cosmetics and kindred articles set out and enumerated therein, to be unconstitutional, because the act imposes a tax on any Kentucky retailer in receiving cosmetics shipped or transported to him in interstate commerce; that the receipt of said cosmetics is an essential and material part of interstate commerce and cannot constitutionally be burdened by a state tax upon such receipts, etc. We are called upon to review that judgment.
There are some questions that arise that cannot be finally settled. The chief one is taxation. Our commercial and industrial activities have increased so rapidly in the last half century that to support our state government and keep it apace with the activities of the age, new methods of taxation are being applied by the legislative department of our state government. Almost at every assemblage of our Legislature, new methods are applied. The complexities of our social, commercial, and industrial interests demand for their support and safety, the application of a number of forms of taxation. There was a time in history when an ad valorem and per capita tax met every emergency, and kept the wheels of government moving to the satisfaction of the people. That time has passed. Inventions of the age, application of scientific principles, discovery of new and unexpected modes of living by the common man, and the application of modern appliances used in industry and transportation; in fact, in all of the activities of life, we are compelled to adopt new methods of taxation. In this age, when changes and advancements come almost overnight in commercial activities and industrial transactions, the court must not cripple or throw a barrier in the way of the legislative department of our government in making laws imposing taxes to meet the necessary demand of government, if it can be avoided. While we must not overlook the basic principles contained in the Federal and State Constitutions, still the meaning of words, or even of whole sentences, used in legislative enactments, must not be contracted and limited, as to bring a law in opposition to the Federal or State Constitution, especially as it affects taxation, if it can be avoided. The only reasonable method that civilization and the best intelligence of man has ever, or will ever, devise, in the support of government is that of taxation; consequently, with such actuating purposes, the question before us will be and must be considered. The courts, as well as officers of the courts, whom we denominate as lawyers and counselors, if civilization and advancement in righteous living be protected and promulgated, must remember that oftentimes by our training, education, and surroundings, we find ourselves in the narrow channel herein referred to, and unconsciously we declare and adjudge acts of the Legislature to be in opposition and in conflict to some parts of the State or Federal Constitution, when if viewed with a broad and forward outlook it would not be the case.
To meet the varied demands of our government, we now have in operation a number of new kinds of taxation--the franchise, income, excise, and license tax, in addition to an ad valorem and per capita tax. When we name them, the common man stands abashed, for the majority of our citizens do not know the meaning of such taxes, much less the proper application. The courts differ as to the application of same, when, how, and on what imposed. The less learned citizens in legal lore, often, severely and properly, we fear, condemn and criticize the judgment of the courts, especially when the question of constitutionality of acts of the General Assembly of our government is assaulted. Such attacks are in many instances made especially by those citizens and taxpayers of the commonwealth who, by reason of inate selfishness and sometimes lack of patriotism, undertake to shift the burden of taxation from their shoulders onto the shoulders of the other fellow.
In considering the constitutionality of an act of the Legislature, a branch of our government, this court must and does remember that the ox wagon age has passed and forever gone; therefore, we must apply accepted and fundamental rules, which have been long applied by the courts of the country when considering the constitutionality of acts of the Legislature. Some of those rules are as follows:
(1) The courts in a long series of cases have enunciated the general principles that the presumption is in favor of the constitutionality of a statute. It has also been declared that in no doubtful case should the courts pronounce legislation to be contrary to the Constitution. McPherson v. State, 174 Ind. 60, 90 N.E. 610, 31 L.R.A. (N.S.) 188; Missouri, etc., R. Co. of Texas v. May, 194 U.S. 267, 24 S.Ct. 638, 48 L.Ed. 971; 6 R.C.L. 101.
(2) That the courts will resolve every reasonable doubt in favor of the validity of a law. Fletcher v. Peck, 6 Cranch, 87, 130, 3 L.Ed. 162, 176; Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed. 629; Henderson Bridge Co. v. Henderson, 173 U.S. 592, 19 S.Ct. 553, 43 L.Ed. 823; City of Louisville v. Hyatt et al., 2 B.Mon. (41 Ky.) 177, 36 Am.Dec. 594. See 6 R.C.L. 98.
With the foregoing rules and guideposts before us, we undertake to solve the constitutionality of the cosmetic section of the law known as the "Luxury Statute."
It is contended by learned counsel for appellee that the tax being levied on the receipt by the state, the retailer being a citizen of Kentucky, as well as on all retailers in the state of the same article, that such tax becomes a burden on business done in interstate commerce, and therefore is a contravention of the interstate commerce act of the federal government; that it further imposes the tax on all receipts of cosmetics by retailers in Kentucky irrespective of whether interstate or intrastate commerce. This contention is denied by appellant.
In viewing this act, we must consider it as a whole, and not merely in its parts. 12 C.J. p. 707, § 55 (5), and cases cited; Rhea v. Newman, 153 Ky. 604, 156 S.W. 154. The intention and purpose of the Legislature in passing it must be ascertained, if it can be done, which is another fundamental rule. Juilliard v. Greenman, 110 U.S. 421, 4 S.Ct. 122, 28 L.Ed. 204; Bank of U.S. v. Deveaux, 5 Cranch, 61, 3 L.Ed. 38; Phillips v. Covington, etc., Bridge Co., 2 Metc. 219; Louisville School Board v. King, 127 Ky. 824, 107 S.W. 247, 32 Ky.Law Rep. 687, 15 L.R.A. (N.S.) 379; 12 C.J. § 43 (3) p. 700, and citations.
It is stipulated and agreed that at the Special Session of the General Assembly, referred to, House Bill No. 59 and House Bill No. 61, both revenue measures, originating as required by law in the House, each bill in original form, are made a part of the record. House Bill No. 59 imposed a tax exclusively on the sale of bottled drinks, etc. House Bill No. 61 imposed a tax on those selling and engaged in the business of selling cosmetics, etc.; also, on candy, chewing gum, and other articles. These bills were referred to the proper committee. After due consideration by the committee, House Bill No. 59 was reported to the General Assembly with the amendments now occurring in the act, with the expression of an opinion that the bill should so pass with those amendments, and in that respect it did pass. House Bill No. 61, as originally introduced, passed out of the picture. House Bill No. 59, as amended, is the statute under consideration. As said before, it is denominated a "Luxury Tax," and begins with section 4281d-1 of Carroll's Kentucky Stats., Baldwin's 1936 Revision. Subsection (c) defines the term "sale" as follows:
Subsection (f) defines the term "retailer" as follows:
The word "cosmetics" is defined by subsection ( l) as follows: "The word 'cosmetics' is defined for purposes of this Act as including any preparation manufactured, sold, or distributed for use as a facial or body powder, lotion or cream."
Section 4281d-2 is as follows:
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Burton v. Mayer
... ... unconstitutionality beyond a reasonable doubt. Martin v ... J. Bacon & Sons, 268 Ky. 612, 105 S.W.2d 569; ... Shannon v. Wheeler, 268 Ky. 25, 103 ... ...
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Burton v. Mayer
...an act of the Legislature unconstitutional unless satisfied of its unconstitutionality beyond a reasonable doubt. Martin v. J. Bacon & Sons, 268 Ky. 612, 105 S.W. (2d) 569; Shannon v. Wheeler, 268 Ky. 25, 103 S.W. (2d) 718; Federal Chemical Company v. Paddock, 264 Ky. 338, 94 S.W. (2d) 645;......
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