State v. Ide

• Decision Date: 24 August 1904
• Citation: 77 P. 961,35 Wash. 576
• Parties: STATE v. IDE.
• Court: Washington Supreme Court

77 P. 961

35 Wash. 576

STATE v. IDE.

Supreme Court of Washington

August 24, 1904

Appeal from Superior Court, Jefferson County; Geo. C. Hatch, Judge.

C. W Ide was convicted of failing and refusing to pay a street poll tax, and he appeals. Reversed.

Fullerton C.J., dissenting.

Brinker Coleman & Ballinger, for appellant.

A. W Buddress, for the State.

ANDERS, J.

On June 22, 1903, William Furlong filed a verfied complaint in the police court of the city of Port Townsend, alleging, in substance, that he was at said time the city marshal and city street poll tax collector of the city of Port Townsend, a city of the third class, in the county of Jefferson, and state of Washington, and that on said day one C. W. Ide, then and there being a male inhabitant of said city between the ages of 21 and 50 years, and not a member of any volunteer fire company of said city nor a member of the militia of the state of Washington, did then and there commit the misdemeanor of failing and refusing to pay to said city street poll tax collector, on demand, his (the said defendant's) city annual street poll tax for the year 1903, committed as follows: That the said city street poll tax collector did then and there personally demand of and from said defendant, C. W. Ide, the sum of two dollars for the payment by defendant to said city and to its said street poll tax collector, the said city annual street poll tax for the year 1903, but said defendant did then and there willfully and unlawfully fail and refuse to pay to said city street poll tax collector said sum of $2 from his city annual street poll tax of said city for the year 1903 contrary to Ordinance No. 675 of said city, entitled 'An ordinance imposing and levying an annual city street poll tax for the year 1903, and providing for the collection thereof,' approved June 3, 1903, and contrary to Ordinance No. 639 of said city, entitled 'An ordinance to provide for the collection of a city street poll tax, and making the refusal to pay the same a misdemeanor, and to provide for the appointment of a tax collector and deputy,' approved on May 3, 1899. A warrant was issued on this complaint, and the defendant, having been arrested thereon and brought into court, filed a demurrer to the complaint on the following grounds: First, that it appears upon the face of the complaint that defendant has not violated any law; second, that said complaint fails to state facts sufficient to constitute a crime or misdemeanor of any kind; third, that said complaint does not charge any offense against the laws of the state of Washington; fourth, that said complaint does not charge defendant with he commission of any crime or misdemeanor under the ordinances of the city of Port Townsend. The demurrer was overruled, and on the hearing in the police court the defendant was convicted and fined, and from the judgment he appealed to the superior court. The demurrer was again argued and considered in the superior court, and was by that court overruled. Upon the trial in the superior court the defendant was convicted, and fined $2 and costs, and it was thereupon adjudged that he be imprisoned in the county jail until such fine and costs be paid, unless otherwise discharged by law. From this judgment and sentence the defendant has appealed to this court.

Section 1 of ordinance No. 675, which is mentioned and referred to by its title and date of approval, provides 'that there be and hereby is imposed and levied an annual city street poll tax upon each male inhabitant between the ages of twenty-one and fifty years, residing in said city, excepting any member of any volunteer fire company in said city, the sum of two dollars, payable on demand between the first day of June, 1903, and the first day of September, 1903.' And section 2 provides 'that the poll tax hereby imposed and levied shall be collected as provided by Ordinance No. 639 of said city entitled 'An ordinance to provide for the collection of a city street poll tax, and making the refusal to pay the same a misdemeanor, and to provide for the appointment of a tax collector and deputy,' passed by the city council of said city on the 2d day of May, 1899, and approved on the 3d day of May, 1899.' Ordinance No.

639, above mentioned and described, contains, besides others, which it is not necessary to mention, the following provisions:

'Section 1. That it shall be the duty of the city marshal between the first day of May and the first day of September, of each year, to collect all city street poll taxes levied or assessed by the city council, as herein provided, and shall give to each person paying such city street poll tax a receipt therefor. * * *

'Sec. 2. That the said city marshal shall receive in full compensation for his services for the collection of the said city street poll tax, under this ordinance, the sum of ten per centum upon all moneys so collected.

'Sec. 3. If any person liable for the city street poll tax herein provided for, shall fail, refuse or neglect to pay the same upon demand by the city marshal, the city marshal shall proceed to collect the same as herein provided.'

'Sec. 5. That any person who shall fail, refuse or neglect to pay upon demand to the city marshal, or his deputy, the annual street poll tax, which shall have been levied or assessed by the city council of said city, or which may be hereafter levied or assessed by the city council of said city, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding twenty-five dollars, or be imprisoned not exceeding thirty days, or both such fine and imprisonment in the discretion of the court.

'Sec. 6. That it shall be the duty of the city marshal to collect all the city street poll tax from every person liable therefor, and on the neglect or refusal of such person to pay the same, he shall collect the same by seizure and sale of any personal property owned by such person. The sale to be made after three days written notice of time and place of such sale to be posted in three of the most public places of said city before the day of sale.'

'Sec. 13. The city marshal shall enforce the payment of the city street poll tax by any and all the modes herein provided in the name and at the cost of the city.'

The Constitution of the state (article 11, § 10) provides that the Legislature shall, by general laws, provide for the incorporation, organization, and classification, in proportion to population, of cities and towns, and it is conceded that Port Townsend is a city of the third class, duly organized and existing under and by virtue of a general law passed by the Legislature in accordance with the mandate of the Constitution. By that law (section 938 of Ballinger's Ann. Codes & St.) the city council of such city is empowered: '(7) To impose on and collect from every male inhabitant between the ages of twenty-one and fifty years an annual street poll tax not exceeding two dollars, and no other road poll tax shall be collected within the limits of such city: provided, that any member of a volunteer fire company in such city shall be exempt from such tax.' '(16) To impose fines, penalties and forfeitures for any and all violations of ordinances, and for any breach or violation of any ordinance to fix the penalty by fine or imprisonment, or both, but no such fine shall exceed three hundred dollars nor the term of such imprisonment exceed the term of three months.' If the provisions of section 938 of the Code, which we have quoted, are not in conflict with the Constitution of the state or of the United States, it can hardly be disputed that the ordinances founded thereon, and numbered 675 and 639, are valid enactments of the city of Port Townsend. And, if the ordinances in question are valid, we think the averments of the complaint are sufficient to constitute an offense, and that the demurrer thereto was properly overruled.

But it is earnestly insisted by the learned counsel for the appellant that the ordinances and statute providing for the imposition and collection of this city street poll tax are, each and all, violative of the Constitution of the state and of the fourteenth amendment to the Constitution of the United States. Before proceeding to the consideration of the objections interposed by appellant to this poll tax law and these city ordinances, we deem it proper to observe that it is settled by the highest authority that a legislative enactment is presumed to be constitutional and valid until the contrary clearly appears. In other words, the courts will presume that an act regularly passed by the legislative body of the government is a valid law, and will entertain no presumptions against its validity. And when the constitutionality of an act of the Legislature is drawn in question the court will not declare it void unless its invalidity is so apparent as to leave no reasonable doubt upon the subject. Cooley on Constitutional Limitations (7th Ed.) pp. 252-254, and cases cited; Id. p. 255. See, also, Francis v. Railroad Co., 19 Kan. 303-306. We have mentioned these well-established rules because we believe that they should always be kept in mind when the court is called upon to declare invalid an act of the lawmaking body, a co-ordinate and independent department of the government.

The first and chief contention of appellant is that subdivision 7 of section 938 of the Code, above quoted, and the ordinances founded thereon, are unconstitutional and void, for the reason that the tax attempted to be levied and collected under the ordinance is levied and imposed upon males between the ages of 21 and 50 years alone, and not upon females, nor upon males over the age of 50 years, nor upon males under the age of 21...