Mills v. State Board of Equalization

Mr. Chief Justice Callaway:

I concur in the opinion of Mr. Justice Anderson so far as it condemns the surtax attempted to be set up in Chapter 40 by the Extraordinary Session of the Legislative Assembly of 1933-34; and as a direct attack is made upon the entire statute and also upon Chapter 181 of the Session Laws of 1933, I go further and say

O’Connell

v.

State Board of Equalisation,

95 Mont. 91 , 25 Pac. (2d) 114 , should be overruled.

That the Income Tax Law, Chapter 181, supra, is contrary to the Constitution of this state, I have not the slightest doubt. My views are set forth in my dissenting opinion in the

O’Connell Case.

But for the reasons following I am persuaded that a few additional observations may be useful.

The majority opinion in that case rests principally upon the fallacy that income is not property, following

Diefendorf

v.

Gallet,

51 Idaho, 619 , 10 Pac. (2d) 307 . Idaho has an entirely different constitutional provision from ours; it reposes in the legislature the right to define property, whereas our Constitution defines property in all-inclusive language (sec. 17, Art. XII), which is binding and conclusive upon every department of the state government. That constitutional definition necessarily and inescapably includes income.

In addition to that, the majority declared an excise tax to be an income tax, contrary to our Constitution and the great weight of authority.

Within two months after the opinions in the

O’Connell Case

were delivered, the supreme court of Washington delivered its opinion in

Culliton

v.

Chase,

173 Wash. 309 , 22 Pac. (2d) 1049 . Mr. Justice Holcomb, who delivered the principal opinion, said the attention of the court had been directed to the recent Montana ease of

O’Connell

v.

State Board of Equalisation ,

and observed: “Stress was laid in that case upon the fact that the law was copied from the Idaho Act, which had

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theretofore been construed by the supreme court of that state, and it necessarily followed that the law and the judicial interpretation were adopted in the Montana statute. With due respect to the majority of that court, it seems obvious to us, as pointed out in the dissenting opinions, that the majority lost sight of the unique provisions of the Idaho Constitution as stated by that court itself. Had we the same ‘unique’ constitutional provision as has Idaho, we should probably follow the decision of that court upon the validity of the income tax law before us.” In his opinion the learned justice also said: “The overwhelming weight of judicial authority is that ‘income’ is property, and a tax upon income is a tax upon property.”

That there is ample authority for the statement is seen by referring to the authorities cited in my opinion in the

O’Connell Case.

In view of the “conclusion” of Professor Allen, referred to in the majority opinion, it may not be amiss to call attention to the fact that the “weight of authority” does not depend upon the number of opinions upon one side or another of a debated question. It rests upon the sounder opinions, those which are supported by reason, experience and wisdom. Upon this foundation there cannot be any doubt that the great weight of authority sustains the assertion that income is property; and this is especially true under our Constitution.

But why cite authority to sustain a proposition so obvious? If a man were deprived of his income withoui; due process of law, — contrary to the federal and state Constitutions, — is it possible that any court in the land would hold that he was not unlawfully deprived of property for the reason that income is not property?

The result of the decision in the

O’Connell Case

was foreseen; in my dissenting opinion it was predicted that the operation of Chapter 181 would increase taxes during the present biennium. It has. It was also pointed out that “if the legislature has the right, under the Constitution, as it now

*35

exists, to levy an income tax, it may employ that tax to raise large sums of money in addition to the

ad valorem,

tax as provided by the Constitution.”

The Extraordinary Session by enacting Chapter 40 attempted through the surtax device to increase the income taxes of individuals. It doubled, trebled, quadrupled, and so on into higher brackets, the normal income tax established in Chapter 181, as is shown in the majority opinion. And it is to be noted that the legislature, unless restricted by the Constitution, may do so again and go still further, by employing the pen of a more skilled draughtsman, and thus the tax burden, now oppressive, will become unbearable, entailing ills upon the people beyond their sufferance. The income tax system, highly desirable if properly safeguarded, should be couched in plain language, so that its operation will be equitable and just. It should not be permitted to become an instrument of tyranny.

The constitutional barriers so carefully erected by the people in their Constitution have been broken down by the

O’Connell Case.

I call attention again to the desirability of enacting the pending constitutional amendment which provides that the legislative assembly may levy “and collect taxes upon incomes and persons, firms and corporations for the purpose of replacing property taxes.” That policy is recognized by Chapter 181 of the Laws of the 1933 Assembly, and Chapter 40 of the Laws of the Special Session of 1933-34, but no machinery is provided to make it effective; and a future legislative assembly, desirous of imposing greater taxes, unless restrained by the Constitution, may disregard it altogether.

If there was a doubt that Chapter 181 is unconstitutional, as unreasonably discriminatory in favor of corporations and against individuals, there is no doubt as to Chapter 40, which clearly offends section 7 of Article XII in that respect. On the other features of the case I do not express any opinion.