State v. Jones

• Decision Date: 22 February 1904
• Citation: 9 Idaho 693,75 P. 819
• Parties: STATE v. JONES
• Court: Idaho Supreme Court

75 P. 819

9 Idaho 693

STATE v. JONES

Supreme Court of Idaho

February 22, 1904

Syllabus by the Court.

1. Under the provisions of section 2, art. 7, of the Constitution, it is not double taxation to levy a tax on billiard, pool, and other tables according to their value and at the same time require the proprietors or keepers thereof to pay a license tax under the provisions of section 1645, Rev. St. 1887, as amended.

2. The following title to an act, to wit, " An act to amend section 1645, Revised Statutes [1887] of the state of Idaho as amended by act approved February 16th, 1899" (Sees Laws 1903, p. 104), held sufficient, under the provisions of section 16, art. 3, of the Constitution.

3. Held, section 1645, Rev. St. 1887, as amended by act approved March 12, 1903, sufficient, full, and complete, so as to leave no doubt of its meaning and purpose, and is therefore valid.

APPEAL from District Court of Canyon County. Honorable George H. Stewart, Judge.

Action by state to recover license tax for billiard and pool tables. Judgment for state. Affirmed.

Affirmed, with costs.

Lot L. Feltham, for Appellants.

The first question involves both the construction of the act and its constitutionality. The appellant contends that the said act not only does not include persons who keep billiard and pool tables upon which are played games without charge, but that said act is also unconstitutional, for the reason that it provides for duplicate taxation. Section 2 of article 7 of the constitution of Idaho provides: "The legislature may also impose a license tax (both upon natural persons and upon corporations other than municipal, doing business in this state)." Section 5 of article 7 of the constitution provides that "All taxes shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws, which shall subscribe such regulations as shall secure a just valuation for taxation of all property, real and personal: Provided, further, that duplicate taxation of property for the same purpose during the same year is hereby prohibited." Billiard and pool tables are personal property and subject to the same general tax that other personal property bears, and to impose a license tax in addition to the general tax upon the owners thereof, based upon no other reason than ownership, would be, in fact, duplicate taxation and contrary to the spirit of the constitutional clause above quoted. The act does not express in its title the subject matter, and is in conflict with section 16 of article 3 of the constitution of Idaho. Section 16 of article 3 of the constitution provides: "Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.") State v. Doherty, 3 Idaho 384 (2 Idaho 1105), 29 P. 855; Andrews v. Board of Commrs., 7 Idaho 453, 63 P. 592; Pioneer Irr. Dist. v. Bradbury, 8 Idaho 310, 101 Am. St. Rep. 201, 68 P. 295; Washington v. Page, 4 Cal. 388; People v. Johnston, 6 Cal. 673; Ex parte Newman, 9 Cal. 502; Pierpont v. Crouch, 10 Cal. 316; In re Boston Min. etc. Co., 51 Cal. 626.) In opposition to the above California cases on this clause holding it merely directory, there are a number of cases holding this constitutional clause as mandatory, among which are the following: State v. Rogers, 10 Nev. 252, 259, 21 Am. Rep. 738; Hunt v. State, 22 Tex. App. 398, 3 S.W. 233; Ex parte Pollard, 40 Ala. 77; Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 20; Central etc. Co. v. People, 5 Colo. 41; State v. Patterson, 98 N.C. 663, 4 S.E. 350; note to Davis v. State, 61 Am. Dec. 340; People v. Fleming, 7 Colo. 230, 3 P. 70; Wall v. Garrison, 11 Colo. 515, 17 P. 469; People v. Mahaney, 13 Mich. 481; Sun Mut. Ins. Co. v. Mayor of New York, 8 N.Y. 241; Durkee v. City of Janesville, 26 Wis. 697; Burnett v. Turner, 87 Tenn. 126-129, 10 S.W. 194. The section as amended is not set forth and published at full length, and is in conflict with section 18 of article 3 of the constitution of Idaho which provides, "No act shall be revised or amended by mere reference to its title, but the section as amended shall be set forth and published at full length." (Rasmussen v. Baker, 7 Wyo. 117, 50 P. 819, 38 L. R. A. 773; Fletcher v. Prather, 102 Cal. 413, 36 P. 659; Sutherland on Statutory Construction, secs. 131, 132; Black on Interpretation of Law, p. 362, sec. 134; Town of Martinville v. Frieze 33 Ind. 507; State v. Beddo, 22 Utah 432, 63 P. 97; Blackmore v. Dolan, 50 Ind. 202; Dodd et al. v. State, 18 Ind. 56; Greencastle etc. Co. v. State ex rel. Malot, 28 Ind. 382; Draper v. Falley, 33 Ind. 465; People v. Pritchard, 21 Mich. 241; Colwell v. Chamberlain, 43 N.J.L. 387; Lehman v. McBride, 15 Ohio St. 573.)

George P. Rhea, for Respondent.

A court will not declare an act unconstitutional unless the act is directly antagonistic to some specific provision of the constitution of the state or of the United States. (Cooley's Constitutional Limitations, 6th ed., 204.) And the court will not declare an act void unless it is clear beyond a doubt that it is in violation to the constitution. (Fletcher v. Peck, 6 Cranch, 87, 3 L.Ed. 162; Sinking Fund Cases, 99 U.S. 700, 25 L.Ed. 504.) The law upon which this suit is brought is to enforce the payment of a license fee or charge, and not for the enforcement of an ad valorem tax for general revenue purposes. Section 5, article 7 only directs taxation upon property according to value for general revenue purposes. There is a contract between an ad valorem tax for general revenue purposes and a license fee or charge without regard to value for specific purposes. Sections 2 and 5 of article 7 of the constitution gives the legislature of this state power to provide for three things pertaining to revenue: 1. To enact laws providing for the levying and collecting of an ad valorem tax; 2. To enact laws imposing a per capita tax. The constitution of California which declares "that taxation which shall be equal and uniform throughout the state, applies only to direct taxation upon property, and does not prohibit the legislature from enacting license laws." (People v. Nagle, 1 Cal. 232.) Section 1645 of Revised Statutes of Idaho and all the amendments thereto, refer wholly to licenses and are silent upon the question of direct taxation. The supreme court of this state has held in the case of the State v. Union Cent. Life Ins. Co., 8 Idaho 240, 67 P. 647, "That a license was not a tax, and that the license system is a separate and distinct way of raising revenue independent of the tax system, and aids largely in carrying on the public school system of our state." (State v. Doherty, 3 Idaho 384 (2 Idaho 1105), 29 P. 855; Burrows on Taxation, p. 147; State v. Camp Sing, 18 Mont. 128, 56 Am. St. Rep. 551, 44 P. 516, 32 L. R. A. 635.) The second contention on the part of appellant is that the act of 1903 is unconstitutional, because the act does express in its title the subject matter, and is in conflict with section 16 of article 3 of the constitution of Idaho. The title as expressed in the act of 1903 (page 104) is as follows: "An act to amend section 1645 of the Revised Statutes of the state of Idaho as amended by act approved February 16, 1899." (State v. Phenline, 16 Or. 107, 17 P. 574; Heller v. People, 2 Colo. App. 459, 31 P. 773; Callahan v. Jennings, 16 Colo. 471, 27 P. 1055; State v. Courtney, 27 Mont. 378, 71 P. 308; Steele County v. Erskine, 98 F. 221, 39 C. C. A. 180.) Counsel for appellant argues that the act of 1903 is unconstitutional, because section 1645 of the Revised Statutes of the state of Idaho has not been set out and published at full length. He further argues that the acts of 1891 and 1899 are both unconstitutional, for the reason that the section attempted to be amended has not been set forth and published at full length. (State v. City of Kearney, 49 Neb. 325, 68 N.W. 533.) We contend that where a section or statute is amended, it does not repeal and re-enact that part not amended, and that part not amended continues and remains in force as the law from the time it was first enacted. (Idaho Rev. Stats., sec. 157; Fletcher v. Prather, 102 Cal. 413, 36 P. 658; 23 Ency. of Law, 357.) We have heretofore called the attention of the court to the fact that the act of 1899 is simply a copy and re-enactment of the act of 1891, the two acts being identical in every respect. The legislature in passing the act of 1899 evidently intended to continue in force the act of 1891, and by this act of 1899 and said intention on the part of the legislature the effect is to continue in force said act of 1891, being an amendment to subdivision 1 of section 1645, Revised Statutes of Idaho. In support of this proposition we cite State v. Wish, 15 Neb. 448, 19 N.W. 686; State v. McColl, 9 Neb. 203, 2 N.W. 213; Wright v. Oakley, 5 Met. 406; Fullerton v. Spring, 3 Wis. 671; also, Idaho Rev. Stats., sec. 157.

SULLIVAN, C. J. Stockslager and Ailshie, JJ., concur.

OPINION

The facts are stated in the opinion.

SULLIVAN, C. J.

This action was brought by the state, for the purpose of enforcing the collection of a license tax from appellant, for keeping in his saloon and place of business, at Weiser, Idaho one billiard and pool table for the use of the frequenters of said saloon. The case was originally brought in the probate court and judgment was entered against the appellant. From that court an appeal was taken to the district court, where the case was heard anew and judgment was entered against the appellant. This appeal is from the judgment, on the judgment-roll alone, which roll contains a stipulation of facts upon which the case was tried in the district court. Said stipulation of...