State v. Ross
| Citation | 101 Kan. 377,166 P. 505 |
| Decision Date | 07 July 1917 |
| Docket Number | 20,993 |
| Parties | THE STATE OF KANSAS, ex rel. S. M. BREWSTER, as Attorney-general, etc., Plaintiff, v. W. D. Ross, as State Superintendent of Public Instruction, etc., et al., Defendants |
| Court | United States State Supreme Court of Kansas |
Decided July, 1917.
Original proceeding in mandamus.
Judgment rendered.
SYLLABUS BY THE COURT.
1. MOVING-PICTURE FILMS--Fees Collected for Examination--Not Excessive. The disproportion between the amount of fees collected under a statute purporting to be an inspection measure and the expenses incurred in its execution will justify a court in holding it to be invalid only when one of two conditions is met: either the discrepancy must be so great that the court is forced to the conclusion that the legislature in the first instance acted in bad faith, and intended to provide a revenue under the pretext of requiring an inspection, or else the legislature must have neglected an opportunity to revise the charges exacted, after experience had shown those previously imposed to be excessive.
2. SAME--Statute Not a Revenue Measure. The fact that in the first two years of its enforcement the statute of 1913 providing for the censorship of moving pictures yielded an income of practically four times the cost of its administration is not enough to compel the conclusion that it was intended by the legislature as a revenue measure.
3. SAME--Additional Clerks to Assist in Inspecting Films. The provision of the statute referred to authorizing the appointment of additional clerks in the office of the state superintendent of public instruction is held to imply that they were to assist in inspecting and passing upon films, although by the terms of the act that duty was laid upon the superintendent.
S. M. Brewster, attorney-general, John L. Hunt, and S. N. Hawkes, assistants attorney-general, for the plaintiff.
L. S. Ferry, T. F. Doran, and M. F. Cosgrove, all of Topeka, for the defendants.
Some of the fees required of the exhibitors of moving pictures for their inspection under the censorship statute of 1913 (Gen. Stat. 1915, §§ 10774-10781) have been paid to the state superintendent of public instruction under protest, the validity of the act referred to being challenged. To determine that matter the attorney-general brings this action, seeking by mandamus to obtain an order directing the superintendent to pay to the state treasurer the amount so collected, all claimants of the fund being joined as parties. A number of film companies have answered, contending that the statute is invalid, and asking the return of the money they have paid. Evidence has been taken and the case is submitted for final determination. The principal objection made to the act is that the income derived from the fees collected so far exceeds the expenses of its enforcement as to characterize it as a revenue measure, and that when so regarded it amounts to an undue interference with interstate commerce, and is obnoxious to the provisions of the state constitution requiring the rate of assessment and taxation to be uniform (Const., art. 11, § 1) and relating to the statement of the purpose of a tax in the law imposing it (art. 11, § 4). In an attack made in the federal courts upon this statute it has already been definitely determined that it does not interfere with interstate commerce ( Mutual Film Corp. v. Kansas, 236 U.S. 248), upon the ground, stated in the opinion in a companion case ( Mutual Film Corp. v. Ohio Indus'l Comm., 236 U.S. 230, 59 L.Ed. 552, 35 S.Ct. 387), that the restriction is placed upon the exhibition of films and not upon their transportation. The statute requires the payment of the fee and the approval of the film by the examiners before its exhibition, or its use, which in this case is perhaps the same thing. Viewed as a tax, the charge seems to be laid, not upon the property, but upon the right or privilege of exhibiting it. A tax of that character is not within the operation of the constitutional provision relating to uniformity (Wheeler v. Weightman, 96 Kan. 50, 65, 149 P. 977) nor of the requirement that the purpose of the tax shall be stated in the law imposing it (City of Leavenworth v. Booth, 15 Kan. 627; 37 Cyc. 728-729). The oil-inspection statute, imposing a charge of ten cents a barrel, which was recently held invalid by this court because of the excess of revenue it produced (The State, ex rel., v. Cumiskey, 97 Kan. 343, 155 P. 47), amounted to a property tax, for it was required to be paid before the oil could be sold or used. Moreover, it involved an interference with interstate commerce.
1. The effect of the statute will be examined, however, upon the assumption that it can be sustained only as an inspection measure. The mere fact that the fees charged under such a statute exceed the expense of its execution is not enough to render it invalid. For instance, the difference between an income of from $ 70,000 to $ 75,000 and an outlay of from $ 55,000 to $ 60,000 has been said by this court not to afford a sufficient basis for avoiding such a statute. ( The State, ex rel., v. Railway Co., 87 Kan. 348, 365, 125 P. 98.) To have that effect one of two conditions must be met: either the discrepancy must be so great that the court is forced to the conclusion that the legislature in the first instance acted in bad faith, and intended to produce a revenue under the pretext of requiring an inspection, or else the law-making body must have neglected an opportunity to revise the charges exacted after experience had demonstrated beyond controversy that as previously imposed they were unreasonably and unnecessarily high. These principles are too well established to require extended discussion, but a brief reference will be made to the decisions on the subject. In a case involving the validity of a state law imposing a charge of twenty-five cents a ton upon fertilizers to cover the cost of inspection, interstate commerce being incidentally affected, it was said:
"It does not appear to us that evidence tending to show that money collected from this source was applied to other than the purposes for which it was received should be entered into on this inquiry into the validity of the act. If the receipts are found to average largely more than enough to pay the expenses, the presumption would be that the legislature would moderate the charge. But treating the question whether the charge of twenty-five cents per ton was shown to be so excessive as to demonstrate a purpose other than that which the law declared, as a judicial question we are satisfied that comparing the receipts from this charge with the necessary expenses, such as the cost of analyses, the salaries of inspectors, the cost of tags, express charges, miscellaneous expenses of the department in this connection, and so on, we can not conclude that the charge is so seriously in excess of what is necessary for the objects designed to be effected, as to justify the imputation of bad faith and change the character of the act. (Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 353, 43 L.Ed. 191, 18 S.Ct. 862.)
In a dissenting opinion in a case involving an inspection statute, which the majority of the court held to be beyond the reach of federal interference, the rule applicable if the fact had been otherwise was thus stated:
"Fees can not be imposed for the purpose of inspection upon companies doing an interstate business which are so far in excess of the expenses of such inspection as to make it plain that they were adopted, not as a means of paying such expenses, but as a means of raising revenue." ( Pabst Brewing Co. v. Crenshaw, 198 U.S. 17, 36, 49 L.Ed. 925, 25 S.Ct. 552.)
The following are later expressions to the same general effect:
"The law being otherwise valid the amount of the inspection fee is not a judicial question; it rests with the legislature to fix the amount, and it can only present a valid objection when it is shown that it is so unreasonable and disproportionate to the...
To continue reading
Request your trial
-
Coca-Cola Bottling Co. v. Mosby
...of the excess, will remedy the defect. A recent ruling of a court of last resort upon this subject will be found in State ex rel. Brewster v. Ross, 101 Kan. 377, 166 Pac. 505, in which it is shown that during the first two years of the operation of the statute, there under review, the fees ......
-
Kittredge v. Boyd
...... inheritance tax illegally exacted and paid under protest. (Rev. St. 1923, 79--1501 et seq.). . . Members. of state tax commission held proper parties to mandamus. proceeding to require return of inheritance taxes illegally. exacted and paid under protest (Rev. ... referred to as paid under protest is directed to return. them to the proper parties.". . . . In. State ex rel. v. Ross, 101 Kan. 377, 166 P. 505, the. state superintendent of public instruction collected certain. fees paid under protest by exhibitors of moving ......
-
State v. Wilson
...... . . 8. The. tax being imposed upon a method of doing business, and not. upon property, the provisions of the state constitution with. regard to uniformity of assessment, and the statutory. statement of the object, do not apply. ( The State, . ex rel., v. Ross, 101 Kan. 377; 166 P. 505; 37 Cyc. 729, 732.). . . The. judgment is affirmed. . . BURCH,. J., not ......
-
City of Sheridan v. Litman
...... . . . Affirmed. . . Camplin. & Camplin for appellant. . . The. complaint did not state an offense under the ordinance;. neither court had jurisdiction, 7340-41 C. S.; the complaint. attempted to charge several offenses; it did not ... occupation taxes. 37 Cyc. 728; Matter of McPherson,. 104 N.Y. 306, 230; 10 N.E. 685, 58 Am. Rep. 502; State v. Ross, 101 Kan. 377; 166 P. 505; Miller v. Henry, 62 Ore. 4, 124 P. 197, [32 Wyo. 24] 41 L.R.A. N.S. 97. If the constitutional provision be applicable to ......