Milliken v. O'Meara

• Citation: 74 Colo. 475,222 P. 1116
• Decision Date: 07 January 1924
• Docket Number: 10754.
• Court: Supreme Court of Colorado
• Parties: MILLIKEN, Secretary of State, v. O'MEARA et al.

222 P. 1116

74 Colo. 475

MILLIKEN, Secretary of State, v. O'MEARA et al.

No. 10754.

Supreme Court of Colorado, En Banc.

January 7, 1924

Rehearing Denied Feb. 4, 1924.

Error to District Court, City and County of Denver; Clarence J Morley, Judge.

Proceeding for a peremptory mandamus by Alfired M. O'Meara and others against Carl S. Milliken, as Secretary of State. From a judgment granting the writ, defendant brings error.

Reversed with directions to discharge the writ.

Teller C.J., dissenting as to syllabus 1.

Russell W. Fleming, Atty. Gen., and Charles Roach, Asst. Atty. Gen., for plaintiff in error.

Bardwell, Hecox, McComb & Strong, of Denver, for defendants in error.

DENISON J.

O'Meara and others obtained a peremptory mandamus against Milliken, secretary of state, requiring him to issue a motor vehicle license to them upon payment of the required fee. He brings error.

The General Assembly passed an act (S. L. 1923, pp. 460-463) which directs every officer who collects a registration license fee for an automobile to 'require of the person applying or of some credible agent thereof, an affidavit * * * that all * * * taxes on such motor vehicles * * * due and payable at any time within the year preceding that for which such license is to be issued, have been duly paid'; he is forbidden to issue a license without such affidavit, and if any taxes are due he must require their payment before issuing the license.

The alternative writ alleges that due application was made for a license and the proper fee tendered, but that the respondent refused to accept the fee or issue the license without compliance with said act. It further appears that the machine in question, on April 1, 1921, was owned by one Walker, and that taxes were assessed against it for the year 1921, which are still unpaid.

The claim is that the act in question is unconstitutional for the following reasons:

First. That the subject of the act is not clearly expressed in the title. The title is 'An act relating to the taxation of automobiles, motor trucks and motor cycles.' The act is clearly in relation to taxation, and therefore the subject is clearly expressed in the title. The claim is made that the principal subject of the act is the licensing of automobiles. The claim is irrelevant. The question is whether the provisions of the act as to licenses are germane to the title and subject. Rhinehart v. D. & R. G. R. Co., 61 Colo. 369-387, 158 P. 149. They are so. They provide a method of collection of delinquent taxes. Method of collection is not only germane to, but a part of the law of taxation. Some members of the court consider this point doubtful but resolve the doubt in favor of constitutionality.

Second. It is claimed that the law is special, in violation of section 25, art. 5, of the Colorado Constitution. We do not think so. It operates upon all men in like circumstances, upon all motor vehicles in like circumstances, and discriminates against no one. Cavanaugh v. People, 61 Colo. 292, 294, 157 P. 200.

Third. It is claimed that the act in question violates section 3 of article 2, of the Constitution, that----

'All persons have certain natural, essential and inalienable rights, among which may be reckoned * * * that of acquiring, possessing and protecting property. * * *'

We cannot see anything there touching this case.

Fourth. It is claimed that it violates the due process clause of the Constitution of the United States. Not so. C. L. § 7375, provides:

'All taxes levied or assessed upon personal property of any kind whatsoever shall be and remain a perpetual lien upon the property so levied upon, until the whole amount of such tax is paid.'

No property is taken, no property right is impaired, because the property itself is shown by the alternative writ to have been assessed and therefore subject to the lien of the taxes in question when it was purchased. It could not have been procured by the present owner free from the lien. 37 Cyc. 1146, 1147. This lien, by the terms of the above quotation, subsisted without execution or distraint. The statute of 1923 is merely a method of enforcing the discharge of that lien by the payment of the back taxes. The almost universal disregard of such liens heretofore creates no right to disregard them. Even if no license were required, it would be the duty of the county treasurer to collect the tax by sale of the car if necessary. A somewhat similar statute with reference to real estate was enforced in Aggers v. People, 20 Colo. 348, 38 P. 386.

Fifth. It is asserted that the act is retrospective; but, since it...