State v. Doherty

• Decision Date: 21 April 1892
• Citation: 29 P. 855,3 Idaho 384
• Parties: STATE v. DOHERTY ET AL
• Court: Idaho Supreme Court

29 P. 855

3 Idaho 384

STATE v. DOHERTY ET AL

Supreme Court of Idaho

April 21, 1892

STATUTE-TITLE-LICENSE TAX-GRADUATION-CONSTITUTIONAL LAW-REVENUE LAW-POLICE REGULATION.

STATUTE-CHANGE OF TITLE AFTER SAME HAS BEEN PASSED BY BOTH HOUSES.-1. An act entitled "An act to regulate the sale of intoxicating liquors in less quantities than one quart," was passed by the House of Representatives and transmitted to the Senate. By the Senate amendments to said act all of that part of said act referring to the sale of intoxicating liquors, in quantities less than one quart, was stricken out. Thereafter the bill was returned to the House as amended by the Senate which amendments were concurred in by the House. Thereafter the title of the act was amended by the House by striking out the words following, to wit, "In less quantities than one quart." After said title was so amended the bill was not transmitted to the Senate for its concurrence in said amendment, but was properly enrolled with the title as amended by the House, and thereafter approved by the Governor. Held, that the amendment of the title as made by the House was not one of substance, and did not invalidate said act.

TITLE OF ACT.-2. The subject of said act is fairly indicated by the title, and said title is comprehensive enough to include the provisions contained in said act in regard to a license tax.

TAXATION UNDER CONSTITUTION.-3. The provisions of sections 2 and 5 article 7 of the constitution of Idaho, requiring equality and uniformity of taxation upon the same class of subjects is not applicable to the license tax imposed by section 4 of an act entitled "An act to regulate the sale of intoxicating liquors." (1st Sess. Laws Idaho, 34.) Said act is a police regulation.

LICENSES GRADUATED.-4. As a police regulation the price of licenses may be graduated by some standard, provided such standard is reasonably fair and just.

SAME.-5. The standard of graduation provided by section 4 of said act is reasonably fair and just.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Affirmed with costs.

Jones & Harkness, for Appellants.

The only limitation upon the taxing power of the legislature is equality and uniformity. (People v. Burr, 13 Cal. 343; People v. Seymour, 16 Cal. 332, 76 Am. Dec. 521, and note; Beals v. Amador Co., 35 Cal. 624; Railroad Co. v. Stockton, 41 Cal. 148; People v. Brooks, 16 Cal. 11.) Uniformity requires that the law affect alike all persons or things of the same class. (People v. Coleman, 4 Cal. 46, 60 Am. Dec. 581; Brooks v. Hyde, 37 Cal. 367; Ex parte Smith, 38 Cal. 710; Ex parte Lichtenstein, 67 Cal. 359, 56 Am. Rep. 713, 7 P. 728.) The word "taxes" embraces all impositions made by the government upon the person, property, principles, enjoyments, and occupations of the people for the purpose of a public revenue. (7 Lawson's Rights, Remedies, and Practice, sec. 3879.) A license fee for the transaction of business is a tax. (City of Santa Barbara v. Stearns, 51 Cal. 499; License Tax Cases, 5 Wall. 462.) Ordinances fixing a higher rate of license for sample sellers than for other merchants is invalid. (Ex parte Frank, 52 Cal. 606, 28 Am. Rep. 642.) The legislature cannot designate one class of persons because of their race as special objects of taxation. (Lin Sing v. Washburn, 20 Cal. 534.) Discrimination in favor of or against any classes of property or persons whatsoever must be precluded. (Primm v. Belleville, 59 Ill. 142.)

Charles W. O'Neil, for the State.

Regulation is the object of the constitution in granting the power to impose license taxes. (Cooley on Taxation, 2d ed., 597.)

Hawley & Reeves, amici curiae.

A license tax upon a business, and which is required for the sale of goods, is a tax upon the goods themselves, in effect. (Welton v. State of Missouri, 91 U.S. 275-278; 1 Desty on Taxation, 300 et seq.; Burroughs on Taxation, 146 et seq.) Uniformity is as necessary to a tax levied or collected to aid the police power as it is in taxation for any other purpose. (Durachs' Appeal, 62 Pa. St. 491; Sacramento v. Crocker, 16 Cal. 119; Wiley v. Owens, 39 Ind. 429; Slaughter v. Commonwealth, 13 Gratt. 767; 1 Hare's Constitutional Law, 296 et seq.; Pleuler v. State, 11 Neb. 558, 10 N.W. 481; Burroughs on Taxation, sec. 54.)

SULLIVAN, C. J. Morgan and Huston, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an action brought to recover from the defendants the sum of $ 125, alleged to be due the state for a license for selling intoxicating liquors for the quarter commencing October 1, 1891, and involves the constitutionality of an act entitled "An act to regulate the sale of intoxicating liquors," approved February 6, 1891. (See Idaho 1st Sess. Laws, p. 33.) The case was tried upon an agreed stipulation of facts, and judgment rendered by the court below in favor of the plaintiff, from which judgment this appeal was taken. The appellants contend that the court below erred (1) in holding that section 4 of said act approved February 6, 1891, was constitutional; and (2) in case said section is constitutional, then the court erred in rendering judgment against the defendants for more than seventy-five dollars.

After the case was submitted to this court, Messrs. Hawley & Reeves having been retained to present to the district court of the third judicial district, and from that court to this court, for final decision, a case involving the constitutionality of said act, approved February 6, 1891, upon their application were permitted to present their printed brief in this case, to be considered by this court in the final determination of the case. In addition to the two points raised by appellant's specification of errors, Messrs. Hawley & Reeves contend that said act is void, for the reason that it was not legally passed or enacted by the legislature; that the legislature in its pretended enactment thereof violated the provisions of article 3 of the constitution of Idaho, in this: that the House of Representatives amended the title of said act after it had passed the Senate, and failed to return said bill, with its amended title to the Senate for its concurrence thereto.

We will first consider the point as to whether said act was legally enacted by the legislature. The passage of the act in question occurred as follows: The bill was introduced in the House of Representatives, January 5, 1891, and designated as "House Bill No. 24," and entitled "An act to regulate the sale of intoxicating liquors in less quantities than one quart" (see House Jour. 1891, p. 45) and was thereafter passed and transmitted to the Senate. The Senate passed the bill, with amendments February 3, 1891. The bill was then returned to the House, with the Senate amendments, and on the fifth day of February, 1891, the bill, with the Senate amendments, was taken up by the House, and adopted and concurred in. It was then moved to amend the title to said bill by striking out the following words, to wit, "in less quantities that one quart," which amendment was agreed to, and said words, stricken out. (See House Jour., pp. 114, 115.) The bill was not returned to the Senate for its concurrence in the House amendment of the title, but was referred to the committee on enrollment, and thereafter reported as correctly enrolled, and presented to the governor for his approval, with the title as amended, on February 6, 1891, and approved by him on that day. The provisions of section 4 of said bill, when first introduced in and passed by the House of Representatives, related to the sale of intoxicating liquors in less quantities than one quart, but when amended by the Senate related or applied to intoxicating liquors to be drank in, on, or about the premises where sold, regardless of the quantity.

The Senate, after so amending the bill as to strike out all provisions contained therein in regard to the quantity of intoxicating liquors sold, omitted or failed to strike out of the title that part thereof referring to quantity. That failure or omission may be regarded as a mere oversight or clerical error. After the Senate amended said bill, that part of the title referring to the quantity of liquor sold was mere surplusage, as no part of said act contained any provisions referring to the quantity. The amendment of the title, as made by the House of Representatives, was not one of substance, and did not invalidate the act. (Plummer v. People, 74 Ill. 361; Ballou v. Black, 17 Neb. 389, 23 N.W. 3; Binz v. Weber, 81 Ill. 288; Johnson v. People, 83 Ill. 431.) It is also contended that said act is in contravention of section 16, article 3 of the constitution of Idaho, in this: that the subject matter of the act is not embraced in the title thereof, so far as the license tax is concerned; hence that part of the act relating to the license is void for that reason. Judge Cooley, in his work on Constitutional Limitations, sixth edition, pages 171, 172, states the purpose of constitutional provisions, such as we have in said section 16, article 3, as follows: "It may therefore be assumed as settled that the purpose of these provisions was (1) to prevent hodgepodge or 'log-rolling' legislation; (2) to prevent surprise or fraud upon the legislature by means of provisions in bills of which the title gave no intimation, and which might therefore be overlooked, and carelessly and unintentionally adopted; and (3) to fairly apprise the people, through such publication of legislative proceeding as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire." He further says: "The general purpose of these provisions is accomplished when a law has but...