Rinn v. Bedford

• Decision Date: 31 May 1938
• Docket Number: 14275.
• Citation: 102 Colo. 475,84 P.2d 827
• Parties: RINN v. BEDFORD, Treasurer, et al.
• Court: Colorado Supreme Court

84 P.2d 827

102 Colo. 475

RINN v. BEDFORD, Treasurer, et al.

No. 14275.

Supreme Court of Colorado, En Banc.

May 31, 1938

Rehearing Denied July 11, 1938.

Error to District Court, Boulder County; Hon. Claude C. Coffin Judge.

Action by M. M. Rinn against Homer F. Bedford, Treasurer of the State, and others for a declaratory judgment declaring unconstitutional the Public Revenue Service Tax Act of 1937 Laws 1937, pp. 1144-1168. To review a judgment of dismissal plaintiff brings error.

Affirmed.

BURKE C.J., and HOLLAND, J., dissenting.

Rinn & Connell and Carl W. Berueffy, all of Boulder, and Horace N. Hawkins, of Denver, for plaintiff in error.

Byron G. Rogers, Atty. Gen., and Elmer P. Cogburn, Asst. Atty. Gen., for defendants in error.

BOUCK Justice.

This action was commenced in the district court under our Uniform Declaratory Judgments Act for the purpose of obtaining a judgment declaring unconstitutional the Public Revenue Service Tax Act of 1937. A general demurrer interposed by the defendant State Treasurer to the complaint of the plaintiff Rinn was sustained and the case dismissed. Plaintiff asks for a reversal.

As in other matters, declaratory judgments may be rendered in cases seeking to invalidate statutes on constitutional grounds. However, in a long line of such cases decided Before the General Assembly authorized declaratory judgments, certain fundamental principles were settled by this court and these principles still govern.

First, it is necessary to show the unconstitutionality beyond a reasonable doubt. Consumers' League v. Colorado & S. Ry. Co., 53 Colo. 54, 125 P. 577, Ann.Cas. 1914A, 1158, and cases cited. Secondly, no person is entitled to assail the constitutionality of a statute except as he himself is adversely affected. Cavanaugh v. People, 61 Colo. 292, 157 P. 200. Thirdly, the attack must be restricted to such matters as are necessarily involved in the particular case. Compare: Cavanaugh v. People, supra; People v. Pirie, 78 Colo. 361, 365, 242 P. 72, 73. By the application of these principles much of the argument against the constitutionality of the Act in question is eliminated. A considerable part of the argument partakes of the nature of discussion as to whether the policy represented by the Act is good or bad, a matter with which the courts have nothing to do.

Starting out, therefore, with the usual presumption in favor of validity, we must ascertain whether the facts alleged in the complaint are sufficient to overcome that presumption beyond a reasonable doubt.

The complaint in its present form alleges, among other things, that the plaintiff is a citizen and taxpayer of the City of Boulder in Boulder County and a duly licensed attorney at law; that he is a continuous user of the services rendered and performed for him by others, subject to levy, imposition, and payment of such taxes in Boulder County and as such user has paid said taxes under protest; that the defendant State Treasurer 'is now engaged in enforcing said Act and its provisions, and demanding and * * * compelling plaintiff to make collections of alleged service taxes * * * from clients and others dealing with, employing and compensating plaintiff as an employer or employee, wherein services are rendered or performed, in Boulder County, Colo., and under penalty of fine or imprisonment or both, for failure to comply in any respect with each and all of the provisions of said Act, and as so affecting plaintiff in such capacity in the past, now and in the future.'

The Public Revenue Service Tax Act of 1937, being chapter 240, S.L. '37, pages 1144-1168, provides in section 5 as follows:

'From and after the effective date of this act there is hereby levied and imposed upon the services specified in this act and measured by the amount paid therefor and there shall be collected and paid: * * *

'(e) A tax equivalent to two (2) per cent of the value of services rendered or performed by any person engaging in business of a professional, technical or scientific nature, where services are rendered or performed on a fee basis, or for consideration in the nature of a retainer, including but not limited by * * * attorneys-at-law * * *.'

At the outset we meet with the contention that the Act is void for uncertainty. The Act went into effect on May 14, 1937. The public officials charged with its enforcement seem to have had no difficulty in ascertaining its reasonable meaning, either as to the tax imposed upon attorneys at law or as to the methods to be employed in its collection. We do not find any fatal uncertainty in any portion of the Act which the plaintiff has a right to question in view of all the allegations of his complaint, as amended.

In the exaction of the tax on services rendered to or for the plaintiff by others he of course has no concern and he cannot raise constitutional questions thereon. That the price charged him for such services of others is fixed by the addition of the amount of the tax or of any other factor does not entitle the plaintiff to complain. He may take the service as offered or he may leave it.

We consider next the question whether the Act may lawfully require the plaintiff as an attorney at law to cllect the tax from those for whom he himself performs services. The argument that he is thereby unlawfully constituted a collector of taxes against his will, and that the compensation provided for the collection is inadequate and confiscatory, must fall, for there is no distinction in principle between such collection and the collection, for instance, of a gasoline tax, which is collected by the seller from the...