Tite v. State Tax Commission

• Decision Date: 15 May 1936
• Docket Number: 5723
• Citation: 57 P.2d 734,89 Utah 404
• Court: Utah Supreme Court
• Parties: TITE et al. v. STATE TAX COMMISSION

57 P.2d 734

89 Utah 404

TITE et al. v. STATE TAX COMMISSION

No. 5723

Supreme Court of Utah

May 15, 1936

Original proceeding on an application for writ of prohibition by Clarence A. Tite and others, copartners, doing business under the firm name and style of Wilson Bros. Grocery against the State Tax Commission of Utah.

WRIT GRANTED.

J Quill Nebeker, of Ogden, for plaintiffs.

Ned Warnock, of Salt Lake City, for defendant.

WOLFE Justice.ELIAS HANSEN, C. J., and FOLLAND, EPHRAIM HANSON, and MOFFAT, JJ., concur.

OPINION

WOLFE, Justice.

This case involves the constitutionality of a part of R. S. Utah 1933, 93-1-5, as amended by chapter 17, Second Special Session, Laws of Utah 1933, dealing with the cigarette and oleomargarine tax.The plaintiffs, doing business under the firm name of Wilson Bros. Grocery Company in Ogden, Utah, dealt in cigarettes at retail.On the 27th day of July, 1935, one G. H. Jones, an inspector of the state tax commission of Utah, went to the plaintiffs' place of business, searched it, and claims to have found ten cartons of Lucky Strike cigarettes; that none of said cigarettes were stamped, apparently, it is claimed, showing that no tax had been paid thereon.He also found some canceled cigarette stamps.On the 29th day of July, 1935, plaintiffs received a letter from the state tax commission signed by Irwin Arnovitz, Chairman, ordering the said plaintiffs to appear before the commission on August 6, 1935, as thereafter changed, at the county courthouse, Weber county, Utah, to show cause why they should not be required to pay the penalty for failure to properly affix and cancel said cigarette stamps as provided by 93-1-5, R. S. Utah, 1933, as amended by chapter 17, Second Special Session, Laws of Utah 1933.Plaintiffs appeared and objected to the introduction of any evidence on the ground that the commission had no jurisdiction because the procedure was unconstitutional.

The proceedings were held under the purported authority of 93-1-5, R. S. Utah 1933, as amended by chapter 17, Second Special Session, Laws of Utah 1933, reading, in so far as material here, as follows:

"Any person failing properly to affix and cancel stamps to the products enumerated in Section 93-1-1, as provided herein or by regulations promulgated by the state tax commission as provided in this chapter, shall be required to pay as a part of the tax imposed hereunder, a penalty of not less than ten dollars ($ 10) nor more than two hundred ninety-nine dollars ($ 299) for each offense, to be assessed and collected by the state tax commission as provided in Section 93-1-15.Each article, package or container not having proper stamps affixed thereto as herein required shall be deemed a separate offense.The presence of any package or container in the place of business of any person required by the provisions of this chapter to stamp the same shall be prima facie evidence that they are intended for sale and subject to tax under this chapter."

The commission took evidence and on August 13, 1935, rendered its decision finding plaintiffs guilty of violating the laws of the state of Utah relative to the stamping of cigarettes and placed a penalty on them in the sum of $ 250, giving one week to pay the same.

Chapter 17, Second Special Session, Laws of Utah 1933, amending 93-1-15, provides that the penalty shall be collected as specified in 80-13-54 and 80-13-55, R. S. Utah 1933.These sections in brief provide: 80-13-54, that the tax commission may issue a warrant for the penalty and cause the same to be served by the sheriff commanding him to levy upon and sell real and personal property in a similar manner to a writ of execution. 80-13-55 authorizes the entering of the warrant by the clerk of the district court in the judgment docket after which it shall become a lien on all real property owned by the purported violators, and the sheriff then shall proceed to enforce the judgment lien the same as an execution.

The application herein for the writ of prohibition is founded solely upon the contention that the tax commission had no power to determine a penalty for the failure to affix stamps because that part of 93-1-5 of chapter 17, Second Special Session, Laws of Utah 1933, which attempted to give these powers to the commission, is unconstitutional in that the Legislature attempted to give to the commission powers which were purely judicial and could be exercised only by a court, and that if not judicial, an unwarranted delegation of legislative power.This power claimed to be judicial only was the power to hear the evidence and fix a penalty within the limits prescribed by the Legislature, i. e., between $ 10 and $ 299 for each "offense," upon which a warrant could issue to the sheriff under 80-13-54, R. S. 1933.The question of whether the commission had this power to initiate and proceed with the hearing at all and not whether it properly proceeded or properly found, was the question presented.The plaintiffs argue not that the Legislature has not power to provide that some tribunal shall have authority to hear and fix a penalty for the violation of the cigarette law in failing to affix stamps, but that such power can be given only to the courts and not to an administrative tribunal.A few preliminary observations about judicial, executive, and legislative powers may serve to give a clearer idea of this oft vexed question of what are judicial and what are administrative powers.In the remoter past of English constitutional history, these powers were not separated as to agencies which could exercise them.Says Maitland in his "Constitutional History of England"(1st Ed.)p. 55:

"We turn to the central government, the king, and his councils.This we are wont to regard as the main theme of constitutional law.We have here, however, postponed it, for it can hardly be understood without some preliminary knowledge of the land law and of the local institutions.Now at the end of Edward's reign [Edward I who just preceded William the Conqueror ]we find several different central institutions.In the first place, there is the kingship; this is the center of the center.Then there is the assembly of the three estates of the realm, clergy, lords and commons, to which the name parliamentum is coming to be specifically appropriated.Then again the king has a council (concilium) which is distinct from parliament, and he has high officers of the state, a chancellor, treasurer, constable, marshal and so forth.Then again he has courts, courtswhich in a peculiar sense are his courts[these italics ours ]: there is the King's Bench, the Common Bench, the Exchequer.All these are now distinct and have different functions; but looking back a little way we see that they have not always been distinct, that a difference, for instance, between the king's council (concilium Regis) and the king's court(curia Regis) has but slowly been established."

The growth of the English Constitution is an evolution passing roughly through the stages of an early slow amalgamation of institutions of local governments--shires and counties--which were at one time independent states coalesced into the Kingdom of England by the Norman Conquest, to one of increasing power of the King with its surges and resurges and finally into the gradual and slow derogation of the powers of the King.The institutional powers theoretically residing in the King and the power which he wielded were not always commensurate because the latter depended largely on the personality of the King, whether he was weak or strong.From 1066 to 1154 the process of amalgamation was marked; from 1154 to 1216 is the period of usurpation of power in the King; from 1216 on down is the period of rise of the barons in opposition to the King and then of the commons as against the barons and the King with their advances and recessions in the acquisition of power.While this history is remote and appears to be far afield from the question we are investigating, it has, in reality, a material bearing.The point to be noted is that for many years there was no separation of executive, judicial, or legislative powers.They were exercised even by the same agencies.Says Rawle in the Third Revision of Bouvier's Dictionary, p. 1114, under his treatment of executive power, "As is pointed out by a recent writer all governmental power was formerly united in the monarchs of the middle ages."In England the King was never quite free or at least never chose to be quite free from his council.At first, it consisted of certain of the tenants in chief--his immediate military vassals."Thrice a year," says the Saxon Chronicle, "King William wore his crown every year he was in England; at Easter he wore it at Winchester; at Pentecost at Westminster and at Christmas at Gloucester; and at these times all the men of England were with him,--archbishops, bishops, and abbots, earls, thegns and knights."Later, says Maitland, "A smaller body collects around the King, a body of administration selected from the ranks of the baronage and of the clergy.* * * Under Henry I this body becomes organic; the orderly routine of administration begins even to check the king's power.* * * This body when it sits for financial purposes constitutes the Exchequer, so-called from the checkered cloth which lies on the table, convenient for the counting of money.Also it forms a council and court of law for the king, it is curia Regis, the king's court, and its members are justiciarii, justiciars or justices of this court."It is somewhat too much of a simplification to say that this body was the precursor of the House of Lords and the second circle around the King,--the witenagemot, the harbinger of the House of Commons.With all the...