State v. Nelson

CourtUnited States State Supreme Court of Idaho
Writing for the CourtWILLIAM A. LEE, J.
Citation36 Idaho 713,213 P. 358
Decision Date03 March 1923
PartiesSTATE, Appellant, v. PARLEY NELSON, Respondent

213 P. 358

36 Idaho 713

STATE, Appellant,
v.

PARLEY NELSON, Respondent

Supreme Court of Idaho

March 3, 1923


CONSTITUTIONAL LAW - POWER OF THE LEGISLATURE - FINANCE AND REVENUE-CITIES AND VILLAGES-THEIR POWER TO TAX-DISTINCTION BETWEEN REGULATORY AND REVENUE TAXES.

1. The power of the legislature with reference to all matters of taxation, as well as of legislation generally, is plenary, except as limited by the organic law.

2. Sec. 2 of art. 7 of the constitution authorizes the legislature to provide such revenue as may be needful, by levying a uniform tax upon all property according to its value. It may also impose a license tax upon natural or artificial persons, other than municipal corporations, and may also levy a per capita tax.

3. Sec. 6 of art. 7 prohibits the legislature from imposing taxes for the purposes of any county, city, town or other municipal corporation, but authorizes it to invest the corporate authorities thereof, respectively, with the power to assess and collect taxes for all purposes of such corporation.

4. The term "taxes" as used in this section has reference only to property taxation, where the tax is assessed and collected upon property values, in the usual and ordinary manner.

5. The authority given the legislature by sec. 2 of art. 7 to provide revenue by other means than a valuation tax does not authorize it to delegate its taxing power, except in the manner and to the extent provided by sec. 6 of said article.

[36 Idaho 714]

6. The legislative power of the state is by article 3 of the constitution vested in the Senate and House of Representatives, and it is a fundamental principle of representative government that except as authorized by the organic law, the legislative department cannot delegate any of its power to make laws to any other body or authority.

7. While municipalities such as cities and villages may pass regulatory measures which may incidentally raise revenue, such municipalities cannot in the exercise of their police power levy and collect a license tax upon individuals or businesses, or levy a per capita tax, for the purpose of raising revenue.

8. A distinction between a license tax for regulatory purposes and one for raising revenue: If imposed for regulation, authorized by sec. 2, art. 12, of the constitution, the license fees demanded must bear some reasonable relation to the cost of such regulation; but if it be imposed under the general taxing power granted by the organic law, the amount of such tax rests wholly within the discretion of the power levying the tax.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. James G. Gwinn, Judge.

Prosecution for violation of a city ordinance. From judgment of the district court sustaining demurrer and discharging defendant, the state appeals. Affirmed.

Affirmed.

Roy L. Black, Attorney General, Jas. L. Boone, Assistant Atty. Genl., C. J. Taylor, L. Tom Perry, Otto E. McCutcheon and O. E. McCutcheon, for Appellant.

It is doubtful if any constitutional provision should be held void by implication. (Noble v. Bragaw, 12 Idaho 265, 85 P. 903; Gillesby v. Board Co. Commrs., 17 Idaho 586, 107 P. 71; State ex rel. Evans v. Steward, 53 Mont. 18, 161 P. 309; Hilger v. Moore, 56 Mont. 146, 182 P. 477.)

Legislative power in granting charters to municipalities is limited only by the constitution and the capability of receiving by such corporation. (Barnes v. District of Columbia, 91 U.S. 540, 23 L.Ed. 440; 1 McQuillin, Munic. Corp., sec. 121, p. 295.)

Sec. 3945, C. S., is protected by contemporary interpretation and long acquiescence. (12 C. J. 714, 715, and notes.)

The constitutional question is not involved. (Const., sec. 2, art. 12; In re Francis, 7 Idaho 98, 60 P. 561.) That provision only in Idaho, California and Washington. (See also, subd. 12, sec. 69, Act of 1893, now sec. 3948, C. S.)

A license to regulate is to be construed as license to raise revenue. (3 McQuillin, Munic. Corp., sec. 989, p. 2199; Ex parte Frank, 52 Cal. 606, 28 Am. Rep. 642; San Jose v. San Jose & S.C. R. Co., 53 Cal. 476; Fleetwood v. Read, 21 Wash. 547, 58 P. 665; Abraham v. Rosenburg, 55 Ore. 359, 105 P. 401; Salt Lake v. Christensen, 34 Utah 38, 95 P. 523, 17 L. R. A., N. S., 898.)

C. W. Poole and Geo. W. Worthen, for Respondent.

The legislature has plenary power, save as limited by the constitution, which may declare the prohibition, by direct inhibition or by such language (and provisions) as will clearly and unequivocally imply that there could be no other intendment. (Gillesby v. Board of County Commrs., 17 Idaho 586, 107 P. 71; McDonald v. Doust, 11 Idaho 14, 81 P. 60; Atkinson v. Board of Commrs., 18 Idaho 282, 108 P. 1046, 28 L. R. A., N. S., 412; Achenbach v. Kincaid, 25 Idaho 768, 140 P. 529, 69 L. R. A. 220; State v. Cochran, 55 Ore. 157, 104 P. 419.)

Secs. 2 and 6 of art. 7 of the constitution of Idaho impliedly prohibit the legislature from delegating to a city the right to impose a license tax for revenue. (State v. Camp Sing, 18 Mont. 128, 44 P. 516; State v. Union Central Life Ins. Co., 8 Idaho 240, 67 P. 647; Johnson v. Great Falls, 38 Mont. 369, 16 Ann. Cas. 974, 99 P. 1059.)

The doctrine of contemporary interpretation and long acquiescence has no application in this case, where the constitutional provision is clear. (12 C. J., sec. 68, pp. 715-717, and notes.)

The position of respondent that license taxes for raising revenue are for the legislature is supported by legislative construction. Ever since the adoption of our constitution the legislature has, by its enactment of license taxes, recognized the principle that the subject of license taxes is for the legislature. (State v. Camp Sing, supra; In re Kessler, 26 Idaho 764, Ann. Cas. 1917A, 228, 146 P. 113, L. R. A. 1915D, 322, and cases cited at p. 774.)

WILLIAM A. LEE, J. Dunn and William E. Lee, JJ., concur.

OPINION

[36 Idaho 716] WILLIAM A. LEE, J.

--The city of Rexburg passed an ordinance entitled "An ordinance for the raising of revenue by levying and collecting a license tax on certain occupations, trades, businesses, vocations and employments transacted, engaged in or carried on within the corporate limits of the city of Rexburg, Madison county, Idaho, etc." This ordinance, from its terms, is for the purpose of raising revenue and not for the purpose of regulation, for in addition to its title stating that it is for the purpose of raising revenue, section 2 thereof provides that "hereafter the following license tax for the purpose of raising revenue shall be due and paid to the city of Rexburg." This ordinance then classifies the various trades, occupations, professions and classes of business that shall be so licensed thereunder, and specifies the amount which each in its class shall pay. Section 5 provides that each physician and surgeon must pay a license tax of $ 5 per quarter. [213 P. 359]

Respondent Parley Nelson was a regularly licensed and practicing physician under the state law, and was engaged in the practice of his profession in said city when a demand was made upon him for the payment of this license tax. Upon his refusal to pay the same, he was informed against in the police court and fined for a violation of this ordinance. From this judgment he...

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47 practice notes
  • Sun Valley Co. v. City of Sun Valley, No. 15822
    • United States
    • Idaho Supreme Court
    • August 29, 1985
    ...to assess and collect taxes for all purposes of such corporation." The intent of this section was first discussed in State v. Nelson, 36 Idaho 713, 213 P. 358 "Manifestly, the reason for placing this limitation upon the legislative power to tax is to give local communities, organized as mun......
  • Smallwood v. Jeter
    • United States
    • United States State Supreme Court of Idaho
    • February 12, 1926
    ...The act is a police measure in part, but also a revenue measure, in that the fee exceeds the cost of regulation. (State v. Nelson, 36 Idaho 713, 213 P. 358.) The insurance provisions are unconstitutional because unreasonable: (a) in amount (People v. Kastings, 307 Ill. 92, 138 N.E. 269); (b......
  • Idaho Gold Dredging Company v. Balderston, 6470
    • United States
    • United States State Supreme Court of Idaho
    • January 25, 1938
    ...of the state of Idaho against the provisions of section 1 of article 3 of the constitution of the state of Idaho. (State v. Nelson, 36 Idaho 713, 213 P. 358; State v. Purcell, 39 Idaho 642, 228 P. 796; Westphal v. Westphal, 122 Cal.App. 379, 10 P.2d 119.) The title of the act is insufficien......
  • Eberle v. Nielson, No. 8541
    • United States
    • United States State Supreme Court of Idaho
    • February 13, 1957
    ...L.R.A.1915D, 322; Ingard v. Barker, 27 Idaho 124, 147 P. 293; State ex rel. Davis v. Banks, 33 Idaho 765, 198 P. 472; State v. Nelson, 36 Idaho 713, 213 P. 358; State ex rel. Macey v. Johnson, 50 Idaho 363, 296 P. 588; Independent School Dist. v. Pfost, 51 Idaho 240, 4 P.2d 893, 84 A.L.R. 8......
  • Request a trial to view additional results
47 cases
  • Sun Valley Co. v. City of Sun Valley, No. 15822
    • United States
    • Idaho Supreme Court
    • August 29, 1985
    ...to assess and collect taxes for all purposes of such corporation." The intent of this section was first discussed in State v. Nelson, 36 Idaho 713, 213 P. 358 "Manifestly, the reason for placing this limitation upon the legislative power to tax is to give local communities, organized as mun......
  • Smallwood v. Jeter
    • United States
    • United States State Supreme Court of Idaho
    • February 12, 1926
    ...The act is a police measure in part, but also a revenue measure, in that the fee exceeds the cost of regulation. (State v. Nelson, 36 Idaho 713, 213 P. 358.) The insurance provisions are unconstitutional because unreasonable: (a) in amount (People v. Kastings, 307 Ill. 92, 138 N.E. 269); (b......
  • Idaho Gold Dredging Company v. Balderston, 6470
    • United States
    • United States State Supreme Court of Idaho
    • January 25, 1938
    ...of the state of Idaho against the provisions of section 1 of article 3 of the constitution of the state of Idaho. (State v. Nelson, 36 Idaho 713, 213 P. 358; State v. Purcell, 39 Idaho 642, 228 P. 796; Westphal v. Westphal, 122 Cal.App. 379, 10 P.2d 119.) The title of the act is insufficien......
  • Eberle v. Nielson, No. 8541
    • United States
    • United States State Supreme Court of Idaho
    • February 13, 1957
    ...L.R.A.1915D, 322; Ingard v. Barker, 27 Idaho 124, 147 P. 293; State ex rel. Davis v. Banks, 33 Idaho 765, 198 P. 472; State v. Nelson, 36 Idaho 713, 213 P. 358; State ex rel. Macey v. Johnson, 50 Idaho 363, 296 P. 588; Independent School Dist. v. Pfost, 51 Idaho 240, 4 P.2d 893, 84 A.L.R. 8......
  • Request a trial to view additional results

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