Robert Hodge v. Muscatine County
| Decision Date | 16 January 1905 |
| Docket Number | No. 150,150 |
| Citation | 196 U.S. 276,25 S.Ct. 237,49 L.Ed. 477 |
| Parties | ROBERT E. HODGE et al., Plffs. in Err. , v. MUSCATINE COUNTY et al |
| Court | U.S. Supreme Court |
This was a petition in the district court by the owner and tenant of certain real estate in Muscatine, used for a tobacconist's shop, to enjoin the defendants from assessing, and collecting a tax of $240, upon the ground of the unconstitutionality of the law.
Demurrers were interposed to the petition and to certain amendments thereto, which were sustained, the bill dismissed, and an appeal taken to the supreme court of Iowa, which affirmed the judgment of the court below. 121 Iowa, 482, 96 N. W. 968.
Messrs. Junius Parker, W. W. Fuller, and Frank S. Dunshee for plaintiffs in error.
Messrs. Ed. P. Ingham and Henry Jayne for defendants in error.
This case involves the same questions as those just disposed of in Cook v. Marshall County, 196 U. S. 261, 25 Sup. Ct. Rep. 233, 49 L. ed. 471, and in addition thereto the point is made that the laws of Iowa deny to the owner of property leased for the sale of cigarettes due process of law.
To answer satisfactorily the question thus presented, it is necessary to consider the laws of Iowa respecting the tax upon cigarette dealers, and the methods of enforcing the same.
By § 5006 a fine and imprisonment are imposed for selling cigarettes.
By § 5007, printed in full in the Marshall County Case, a tax of $300 per annum is assessed 'against every person . . . and upon the real property and the owner thereof,' whereon cigarettes, etc., are sold, or kept with intent to be sold, with a provision that 'such tax shall be in addition to all other taxes and penalties, shall be assessed, collected, and distributed in the same manner as the mulct liquor tax, and shall be a perpetual lien upon all property, both personal and real, used in connection with the business; and the payment of such tax shall not be a bar to prosecution under any law prohibiting' the selling of cigarettes.
This assessment is made collectible as is a similar charge made upon dealers in liquor as follows:
By § 2433 the assessor makes quarterly returns to the auditor of the persons liable to the tax, a description of the real property whereon the business has been carried.
By § 2436 the charge is made payable in quarterly instalments, and shall be a lien upon the real property.
By § 2437 the auditor certifies quarterly to the county treasurer a list of the names returned to him by the assessor, with a description of the names of the tenant and owner.
By § 2438 the county treasurer enters upon the mulct tax book a quarterly instalment of the tax as a lien and charge upon the real property.
By § 2439, if the tax is not paid within a month, it shall be considered delinquent, and be collectible as other delinquent taxes.
By § 2440 the treasurer may collect the same after it has become delinquent, by seizing and selling any personal property.
By § 2441 application may be made to the board of supervisors to remit the tax by petition duly verified and filed with the county auditor eight days before the time set for the consideration of the case, notice of which must be served upon the county attorney.
By § 2442 the owner of the property may be heard in support of his application. A majority of the board determines whether the tax shall stand or be remitted, and either party may take an appeal to the district court.
These are all of the provisions of the law material to be considered.
We do not deem it necessary to affix a definition to the charge imposed by § 5007. It is certainly not an ordinary license tax, as the payment of such tax is no bar to a prosecution for selling cigarettes under § 5006. In Smith v. Skow, 97 Iowa, 640, 66 N. W. 893, it is said, in speaking of the mulct liquor tax, to which this is analogous, that though called a tax in the statute, it is not in fact a tax as we usually use the word. 'It is in reality a charge or license for carrying on the business of vending liquors, which charge is made a lien upon all property used or connected with the business.' In Ferry v. Deneen (Iowa) 82 N. W. 424, it is observed by the same court, 'it is apparent, taking all the provisions of this act together, that the amount imposed, while called a 'tax,' is, at the same time, a penalty.'
But, in the opinion of the court in the case under consideration, the charge imposed by § 5007 is said to be
This being the latest expression of opinion of the supreme court of Iowa, we accept it for the purposes of this case. If it be not a construction binding upon us, it is, at least, a construction which we ought to follow, unless we are clearly of opinion that it is wrong.
In the case of McBride v. State Revenue Agent, 70 Miss. 716, 12 So. 699, cited by plaintiffs, it was held that a statute providing that a person selling liquor unlawfully should be subject to pay, 'where the offense is committed,' the sum of $500, and should also be liable to a 'criminal prosecution,' imposed a penalty, and not a tax, and that a proceeding to collect such penalty by distress was unconstitutional; but a distinction was drawn in that case between a penalty and a tax, and it was intimated that a proceeding by distress to collect a tax would not be open to a like objection.
It is not easy to draw an exact line of demarcation between a tax and a penalty, but, in view of the fact that the statute denominates the assessment a 'tax,' and provides proceedings appropriate for the collection of a tax, but not for the enforcement of a penalty, and does not contemplate a criminal prosecution, we cannot go far afield in treating it as a tax rather than a penalty. Section 5006 does, indeed, impose a penalty, but § 5007 imposes a tax, with an additional provision that the payment of the tax shall not absolve the party from the penalty. It would be a distortion of the words employed to speak of § 5007 as imposing an additional penalty. The act itself provides in terms that such a tax shall be an addition to all other taxes and penalties, and elaborate provision is made for its enforcement. The mere fact that the charge, whatever it may be, is made a lien upon the real estate, and a personal claim against the landlord, indicates that it is in the nature of a tax rather than a penalty.
There is no conflict between the two sections, the state reserving...
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...all of them, it is sufficient for the present purpose to refer to a few of them. In the case of Hodge v. Muscatine County, Iowa, 196 U. S. 276, 25 S. Ct. 237, 49 L. Ed. 477, an assessor had levied a tax upon a person, and placed a lien upon his property because of the illegal sale of cigare......
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