State ex rel. State Aeronautics Commission v. Board of Examiners of State

• Citation: 194 P.2d 633,121 Mont. 402
• Decision Date: 11 May 1948
• Docket Number: 8817.
• Parties: STATE ex rel. STATE AERONAUTICS COMMISSOIN et al. v. BOARD OF EXAMINERS OF STATE et al.
• Court: United States State Supreme Court of Montana

194 P.2d 633

121 Mont. 402

STATE ex rel. STATE AERONAUTICS COMMISSOIN et al. v. BOARD OF EXAMINERS OF STATE et al.

No. 8817.

Supreme Court of Montana

May 11, 1948

Original proceeding in mandamus by the State, on relation of Montana State Aeronautics Commission and others, to compel the Board of Examiners of the State of Montana and Sam C. Ford Governor, and others, to approve and pay claims for expenses incurred by the Board since November, 1947.

Writ granted.

Edwin K. Cheadle, of Helena, relators.

R. V Bottomly, Atty. Gen., and Alfred F. Dougherty and M. Baxter Larson, Asst. Attys. Gen., for respondent.

J. R Wine, Jr., and Victor H. Fall, both of Helena, amici curiae.

ANGSTMAN Justice.

This is an original proceeding in this court in mandamus.

The petition alleges that claims for expenses of relators in administering the provisions of Chapter 152, Laws 1945, have been approved and paid by defendants to and including the month of November 1947, but that they refuse to approve and pay claims for expenses incurred since that time. The refusal is based upon the fact that the Thirtieth Legislative Assembly failed to make any appropriation for that purpose for the fiscal years 1947-1948 and 1948-1949.

Relators contend that the expenses in question are payable from a special fund provided for that purpose and that the constitutional provisions relating to appropriations and particularly that part of section 12, Article XII prohibiting appropriations of public moneys for a longer term than two years have no application.

Section 20 of Chapter 152 provides that all costs and expenses of administering the Act shall be paid out of the state aviation fund. It provides that the aviation fund shall be made up of the following revenues:

'All gifts and all legislative appropriations for said fund; all moneys received from any branch or department of the federal government, or from other sources, for the purposes mentioned in this act or for the furtherance of aeronautics generally in this state.

'There shall also be paid into said fund the proceeds of one cent per gallon out of each five cents per gallon of gasoline license tax now imposed by the laws of Montana upon purchases of gasoline used for the operation of aircraft.

'The revenue from said one cent per gallon of said tax shall no longer be placed in either the state highway fund or the gasoline license drawback fund as now required by Sec. 2381.22, R.C.M.1935, as amended, but the same shall, when received by the state treasurer, be placed in the state aviation fund.

'No part of said one cent per gallon of gasoline license tax imposed by the laws of Montana on gasoline purchased and used for the operation of aeroplanes or aircraft, shall be subject to refund under the provisions of Sec. 2396.4, R.C.M.1935, as amended, it being the intent of this section to reduce from five cents to four cents per gallon the amount of gasoline license tax which may be refunded on purchases of gasoline used in the operation of aircraft, and to leave otherwise unchanged the provisions of said section 2396.4.'

By section 8 of the Act the aeronautics commission is authorized to accept federal and other moneys either public or private.

By subdivision (d) of section 8, it is provided:

'(d) Disposition of federal funds--All monies accepted for disbursement by the commission pursuant to subdivision of this section shall be deposited in the state treasury, and, unless otherwise prescribed by the authority from which the money is received, kept in separate funds, designated according to the purposes for which the monies were made available, and held by the state in trust for such purposes. All such monies are hereby appropriated for the purposes for which the same were made available, to be expended in accordance with federal laws and regulations and with this act. The commission is authorized, whether acting for this state or as the agent of any of its municipalities, or when requested by the United States government or any agency or department thereof, to disburse such monies for the designated purposes, but this shall not preclude any other authorized method of disbursement.'

The constitutional provisions relied upon by respondents are section 34 of Article V, reading: 'No money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuant thereof, except interest on the public debt,' section 10 of Article XII reading: 'All taxes levied for state purposes shall be paid into the state treasury, and no money shall be drawn from the treasury but in pursuance of specific appropriations made by law,' and the following part of section 12, Article XII : 'No appropriation of public moneys shall be made for a longer term than two years.'

We are not advised as to whether the aviation fund on hand contains any federal moneys or any other moneys save that derived from the one cent per gallon tax on gasoline. The parties have argued the questions presented as if the only moneys in the aviation fund were those derived from the gasoline tax and we shall consider the questions from that standpoint. We may say in passing however that federal funds and other moneys derived otherwise than by taxation never reach the general fund of the state treasury and hence require no legislative appropriation other than that already made by subdivision (d) of section 8 above quoted.

As to the gasoline license tax of one cent per gallon, it is contended by respondents that it is a tax for a state purpose and hence section 10 of Article XII requires that it be paid into the state treasury and that it can be taken out only by an appropriation every two years.

Section 10 of Article XII and other constitutional provisions relating to taxation have no application to license fees or taxes imposed for regulatory purposes as distinguished from property taxes. In State ex rel. Attorney General v. Wisconsin Constructors, 222 Wis. 279, 268 N.W. 238, 243, the court made this point clear by saying:

'Taxes are imposed for the purpose of general revenue. License and other fees are ordinarily imposed to cover the cost and expense of supervision or regulation. City of Milwaukee v. Milwaukee Electric R. & Light Co., 147 Wis. 458, 133 N.W. 593, 595. See, also, Head Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798; United States v. Butler (AAA decision), 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914. The distinction between a tax and an imposition under the police powers is well stated in Cooley on Taxation (4th Ed.) pp. 3511, 3513, 3528:

"The distinction between a demand of money under the police power and one made under the power to tax is not so much one of form as of substance. The proceedings may be the same in the two cases, though the purpose is essentially different. The one is made for regulation and the other for revenue. If the purpose is regulation the imposition ordinarily is an exercise of the police power, while if the purpose is revenue the imposition is an exercise of the taxing power and is a tax. If, therefore, the purpose is evident in any particular instance, there can be no difficulty in classifying the case and referring it to the proper power. * * *

"Only those cases where regulation is the primary power can be specially referred to the police power. If revenue is the primary purpose and regulation is merely incidental the imposition is a tax; while if regulation is the primary purpose the mere fact that incidentally a revenue is also obtained does not make the imposition a tax, although if the imposition clearly and materially exceeds the cost of regulation, inspection or police control, it is generally held to be a tax or an illegal exercise of the police power. * * *

"The power of a state to require a license fee in the exercise of the police power is inherent, subject to the limitations upon the police power in general and to any constitutional limitations which may exist; but constitutional limitations on the power to tax have no application'--citing State v. Anderson, 144 Tenn. 564, 234 S.W. 768, 19 A.L.R. 180.'

The same question was considered in Stewart v. Verde River Irr. & Power Dist., 49 Ariz. 531, 68 P.2d 329, and the same conclusion reached. And to the same effect see Parsons v. People, 32 Colo. 221, 76 P. 666.

This court reached the same conclusion in State v. Police Court, 68 Mont. 435, 219 P. 810. And this court held in State ex rel. Sam Toi v. French, 17 Mont. 54, 41 P. 1078, 30 L.R.A. 415, that a license fee is not a tax subject to the uniformity clause of the Constitution. To the same effect is State ex rel. Griffin v. Greene, 104 Mont. 460, 67 P.2d 995, 111 A.L.R. 770. It is sometimes difficult to ascertain whether a given exaction is a revenue or a regulatory measure. But in this case there can be no doubt on the subject. Chapter 152 is a regulatory measure. It provides for the licensing of all persons operating in aviation. Sec. 9, Title III. The commission is empowered to assist in the development of aeronautics in this state and to encourage the establishment of airports. It may make rules and regulations, establish minimum standards for the purpose of protecting and insuring public safety.

In 33 Am.Jur., page 338, it is said, 'nor are statutory or constitutional restrictions upon the power to tax applicable to license fees required for the purpose of regulation.' And again on page 340 it is said: 'The fact that a pecuniary amount is charged and that revenue may result from the enforcement of license requirements does not necessarily mean that the license enactment is a revenue measure. Revenue may result from an undisputed exercise of the police power which revenue is...