Pingree v. Auditor General
Decision Date | 26 April 1899 |
Citation | 78 N.W. 1025,120 Mich. 95 |
Court | Michigan Supreme Court |
Parties | PINGREE, GOVERNOR, v. AUDITOR GENERAL. TECUMSEH TEL. CO. v. SAME. |
Application for mandamus by Hazen S. Pingree, governor, and the Tecumseh Telephone Company, respectively, against Roscoe D. Dix auditor general. Granted.
Charles D. Joslyn (Charles Flowers, Benton Hanchett, and Ashley Pond, of counsel), for relator Hazen S Pingree.
Carey W. Dunton (Benton Hanchett and Ashley Pond, of counsel), for relator Tecumseh Tel. Co.
Horace M. Oren, Atty. Gen. (Alfred Russell and Henry M. Cheever, of counsel), for respondent.
In the year 1881 the legislature passed an act (No. 168, Pub. Acts 1881) entitled "An act to provide for the assessment of telegraph and telephone lines, within the state of Michigan." Its provisions are, in substance, that the auditor general, state treasurer, and commissioner of the state land office shall assess telegraph and telephone lines at their true cash value, and levy a tax upon said assessment at a rate which shall equal the average rate of taxes (general, municipal, and local) levied throughout the state during the previous year, to be ascertained from the records and files of the auditor general's office, which tax shall be in lieu of all other taxes. This tax has since been paid, and the auditor general has treated it as a specific tax, and credited the amounts collected to the educational fund, under the provisions of section 1 of article 14 of the constitution, which provides: The application of the governor is for a mandamus to compel the auditor general to transfer to the general fund, from the primary school fund, the amount of moneys collected under the act mentioned, and now on hand, upon the ground that the tax provided in said act is not a specific tax. The Tecumseh Telephone Company's application is based upon the same ground, and asks that the tax be canceled, upon the further contention that the tax, not being a specific tax, is not levied in conformity to other provisions of the constitution, viz. sections 11 and 14 of article 14, which are as follows:
The auditor general has answered both petitions; claiming that the tax is specific, and not a property tax, and that, if it be determined otherwise, the tax is valid.
In addition to the sections quoted, sections 10 and 12 of article 14 of the constitution are as follows:
The first question presented, then, is, does Act No. 168 of the Laws of 1881 provide for a specific tax, within the meaning of the constitution? If it does, it disposes of the cases, and both applications should be denied.
Amasa Walker, in his Science of Wealth, at page 339, says that: The late Mr. Justice Cooley, in his work on Taxation (2d Ed. p. 238), uses a similar classification as to taxes, and says of specific taxes that: "Under this head may be ranged those which impose a specific sum, by the head or number, or by some standard of weight or measurement, and which requires no assessment, beyond a listing and classification of the subjects to be taxed." He describes ad valorem taxes as follows: A similar description of specific taxes is found in 25 Am. & Eng. Enc. Law, 17. In Colton's Public Economy, at page 576, it is said: "A specific duty is assessed by income,-as so much a yard, per gallon, per cwt., per caldron, etc.; the instrument of measure being such as the article requires." Perry, in his Principle of Political Economy, says: Bouv. Dict. tit. "Ad Valorem," says, Black's definition is: Black, Tax Titles, 83, says upon the subject that: This distinction has been recognized as applied to duties for many years. Benton's Thirty Years in Congress says of the custom's act of 1833: In Gibbons v. Ogden, 9 Wheat. 180, Chief Justice Marshall said: "The framers of the constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have understood what they meant." Quoting this language. Judge Cooley, in his Constitutional Limitations, said at page 58: "This is but saying that no forced or unnatural construction is to be put upon their language, and it seems so obvious a truism that one expects to see it universally accepted without question; but the attempt is so often made, by interested subtlety and ingenious refinement, to induce the courts to force from these instruments a meaning which their framers never intended, that it frequently becomes necessary to declare this fundamental maxim."
It is urged that the framers of the constitution used the term "specific tax" in a different and broader sense and that, in contradistinction to the uniform tax contemplated by section 11, it should be construed to mean any tax on property not conforming to such uniform rule. We have only to examine the statute in force at the time the constitution was adopted, to see that the term "specific tax" was known and applied in this state previous to the meeting of the constitutional convention. Title 5 of the Revised Statutes of 1846 is divided into chapters 20 and 21. The former treats of the "Assessment and Collection of Taxes"; the latter, "Of Specific Taxes and Duties,"-thus indicating that specific taxes and duties embraced taxes other and different from those ordinary taxes which were provided for in chapter 20, and which were assessed and collected locally. An examination of chapter 21 will show that the term "specific taxes" was used in conformity to the definitions hereinafter given. Thus banks were...
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