State ex rel. Pierce v. Slusher

• Decision Date: 30 July 1926
• Citation: 248 P. 358,119 Or. 141
• Parties: STATE EX REL. PIERCE, GOVERNOR, ET AL. v. SLUSHER, SHERIFF OF CLATSOP COUNTY.
• Court: Oregon Supreme Court

248 P. 358

119 Or. 141

STATE EX REL. PIERCE, GOVERNOR, ET AL. v. SLUSHER, SHERIFF OF CLATSOP COUNTY.

Supreme Court of Oregon

July 30, 1926

In bank.

Original proceeding in mandamus by the State of Oregon, on the relation of Walter M. Pierce, Governor, and others, against Harley J. Slusher, Sheriff of Clatsop County. Demurrer overruled.

I. H. Van Winkle, Atty. Gen., and Miles H. McKey Asst. Atty. Gen., for petitioners.

Frank P. Leinenweber, Dist. Atty., and Norblad & Hesse, all of Astoria, for defendant.

BROWN J.

This is a proceeding in mandamus, brought to compel Harley J Slusher, as sheriff of Clatsop county, Or., to execute warrants for the collection of income taxes issued by the State Tax Commission.

That a writ of mandamus will issue in a proper case to compel the sheriff to collect the taxes due under the Income Tax Law we have heretofore held in this proceeding. State ex rel. v Slusher, 244 P. 540. The original Income Tax Act was held to be constitutional in Standard Lumber Co. v. Pierce, 112 Or. 314, 228 P. 812. That act was designated chapter 279, General Laws of Oregon 1923, and was repealed by the people November 4, 1924, by an initiative law. See General Laws of Oregon 1925, c. 1. The act so repealed was re-enacted by the Legislative Assembly for the purpose of collecting the tax on incomes for the year 1923, and the re-enactment is designated chapter 316, General Laws of Oregon 1925. By demurrer to the writ, the defendant challenges the validity of the Income Tax Law as re-enacted.

The relators assert that the defendant sheriff cannot be heard to say that chapter 316, General Laws of Oregon 1925, is unconstitutional, for the reason that he is not a proper party to make such objection. That the validity of a statute may not be assailed by one whose rights are not affected by the operation of the statute is familiar law. 12 C.J. 760.

Has the defendant rights that may be prejudiced by his execution of the warrants? There is conflict among the decisions as to whether, in an action in mandamus in which an alternative writ has issued, an officer may question the validity of a statute imposing a duty upon him. As illustrating the contrariety of opinion of the courts, we note the following: In the case of Smyth v. Titcomb, 31 Me. 272, the Supreme Court of Maine, in language clear and concise, thus announces its holding:

"It does not, * * * lie with the respondent, as a ministerial officer, to make this objection [that the law is unconstitutional]. He is not authorized, or required to adjudicate the law."

Adhering to the antagonistic view is State v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L. R. A. (N. S.) 466, where the Supreme Court of Washington declared:

"There is no merit in the objection that the officer is without interest in the proceeding."

And, in a case involving the legality of an act of the state tax commission, the Supreme Court of North Dakota, in State v. Leech, 33 N.D. 513, 157 N.W. 492, held that, owing to the unusual circumstances and public interest involved, an officer might question the validity of that act.

In the text of 12 C.J. 765, it is said:

"The better doctrine, supported by an increasing weight of authority, is that a mere subordinate ministerial officer, to whom no injury can result and to whom no violation of duty can be imputed by reason of his complying with a statute, will not be allowed to question its constitutionality; but that the constitutionality of a statute may be questioned by an officer who will, if the statute is unconstitutional, violate his duty under his oath of office, or otherwise render himself liable, by acting under a void statute."

If the Income Tax Act is unconstitutional and void as the sheriff asserts, he would not be protected by that law in the event that he seized and sold the property of the alleged delinquent taxpayers. Our highest court has declared that an unconstitutional law is no law, and that an action will lie against a state collector for enforcing an illegal tax, or for enforcing a legal tax in an illegal manner. Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903, 962, 29 L.Ed. 185. In view of the record, and in the light of the above authority and others not cited here, we are of opinion that the sheriff may be permitted to raise the question of the validity of the act, in so far as he may be affected by enforcing the warrants involved herein.

The defendant charges that the act is invalid in that it is contrary to the express will of the people. In other words, he claims, in effect, that, because the people repealed the Income Tax Law, the Legislature had no right to re-enact the same. From the beginning of our state government up to the present time the general power of legislation has resided in the Legislative Assembly. By the initiative and referendum amendment to our Constitution, the people ordained, in section 1, art. 4 thereof, that "the legislative authority of the state shall be vested in a Legislative Assembly, consisting of a Senate and House of Representatives," but reserved unto themselves power to initiate laws or to reject acts of the Legislative Assembly at the polls.

That the amendment to the Constitution providing for the initiative and referendum did not lessen the power of the Legislature in the matter of enacting laws, see Kadderly v. Portland, 44 Or. 118, 74 P. 710, 75 P. 222; Kalich v. Knapp, 73 Or. 558, 142 P. 594, 145 P. 22, Ann. Cas. 1916E, 1051; Patton v. Withycombe, 81 Or. 210, 159 P. 78. The powers reserved to the people by the Constitution "took from the Legislature the exclusive right to enact laws, at the same time leaving it a co-ordinate legislative body with them." Straw v. Harris, 54 Or. 424, 103 P. 777.

The defendant asserts that the act is invalid "on account of being retroactive, retrospective, and ex post facto legislation." Ex post facto laws relate to criminal acts and their punishment. For a full exposition of ex post facto laws, see the exhaustive opinion of Chase, J., in Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648. Of course an ex post facto law providing for the punishment of a past act lawful when committed would be unconstitutional. However, no such question presents itself in this case. Nobody is attempting to enforce the criminal provisions of the statute. Retrospective and retroactive statutes also relate to past transactions. A number of the state Constitutions inhibit the enactment of certain retrospective legislation, and it is a general rule that, in the absence of any constitutional prohibition relating to retrospective legislation, statutes will be construed to operate prospectively only, unless constrained to the contrary course by language that discloses a clear intent that they shall act retrospectively. That is a rule of statutory construction that applies to laws enacted by the people as well as to laws enacted by the Legislative Assembly.

We have seen that, by an act proposed by initiative petition filed in the office of the secretary of state July 3, 1924, at a general election held November 4, 1924, the electors repealed chapter 279, General Laws of Oregon 1923, known as the Income Tax Act. The repealing act contained no saving clause, nor did it make reference to the unpaid taxes that had accrued thereunder. The tax due under the act accrued seven months prior to its repeal. Under a cardinal rule of statutory construction, the repealing act should be construed prospectively, not retrospectively. There is no language in the repealing act that indicates an intent upon the part of the people to remit the taxes due from the delinquent taxpayers. Furthermore, repeals by implication are not favored. The effect of the repeal of a tax statute has been stated repeatedly by a pre-eminent authority on taxation as follows:

"The rule favoring a prospective construction of statutes is applicable to statutes which repeal tax laws. Accordingly it is held that, where such a statute is not made retroactive, a tax assessed before the repeal is collectible afterwards; and where taxes are levied under a law which is repealed by a subsequent act, unless it appears clearly that the Legislature intended the repeal to work retrospectively, it will be assumed that it intended the taxes to be collected according to the law in force when they were levied." 2 Cooley, Taxation (4th Ed.) 538.

See Smith v. Kelly, 24 Or. 464, 33 P. 642; Alliance Trust Co. v. Multnomah County, 38 Or. 433, 63 P. 498. In the latter case the statute contained a saving clause, but it approved the doctrine announced in the former.

As supporting the doctrine that, where a repealing statute is not made retroactive, a tax assessed thereunder before repeal is collectable, see Oakland v. Whipple, 44 Cal. 303; State v. Sloss, 83 Ala. 93, 3 So. 745; State ex rel. Marion County v. Certain Lands, 40 Ark. 35; Matter of Miller, 110 N.Y. 216, 18 N.E. 139; American Investment Co. v. Thayer, 7 S. D. 72, 63 N.W. 233; Town of Belvidere v. Warren R. Co., 34 N J. Law, 193, 195; State of Maine v. Waterville Savings Bank, 68 Me. 515; Union P. R. Co. v. Board of Commissioners, 217 F. 540, 133 C. C. A. 392 (this case was reversed on another point); Flanigan v. Sierra County, 122 F. 24, 58 C. C. A. 340; 2 Lewis' Sutherland Statutory Construction (2d Ed.) § 645. The opinion of the court in the case of Maine v. Waterville Savings Bank, supra, is especially instructive, and from that opinion we carve the following forceful language: "Here, then, there was an existing, vested right in the state, enforceable by warrant of distress or by action at law. Here was a sum of money due the state, which the defendants were legally bound to pay. * * * It is, however, claimed that by the repeal of prior legislation on this subject, the...