Wittemyer v. City of Portland

854 September 21, 2017 No. 49

IN THE SUPREME COURT OF THE

STATE OF OREGON

George WITTEMYER,

Petitioner on Review,

v.

CITY OF PORTLAND,

Respondent on Review.

(CC 130304234; CA A154844; SC S064205)

On review from the Court of Appeals.*

Argued and submitted March 6, 2017, at Lewis & Clark

Law School, Portland.

George Wittemyer, Pro Se, Portland, argued the cause

and filed the briefs on behalf of himself as petitioner on

review.

Denis M. Vannier, Deputy City Attorney, City of Portland,

argued the cause and filed the brief on behalf of respondent

on review.

John A. Bogdanski, Pro Se, Portland, argued the cause

and filed the on behalf of himself as amicus curiae.

Kristian Roggendorf, Lake Oswego, filed the brief on

behalf of amicus curiae Eric Fruits, Ph.D.

Sean O’Day, League of Oregon Cities, Salem, filed the

brief for amicus curiae League of Oregon Cities.

P.K. Runkles-Pearson, Miller Nash Graham & Dunn

LLP, Portland, filed the brief on behalf of amicus curiae

Portland Public School District.

______________

*  On appeal from Multnomah County Circuit Court, Kelly Skye, Judge. 278

Or App 746, 377 P3d 589 (2016).

Cite as 361 Or 854 (2017) 855

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Nakamoto, and Flynn, Justices.**

LANDAU, J.

The decision of the Court of Appeals and the limited

judgment of the circuit court are affirmed.

Case Summary: Plaintiff alleged that the City of Portland’s arts tax was

a prohibited poll or head tax. The trial court determined that the tax was not

a poll or head tax. The Court of Appeals affirmed the trial court’s decision and

plaintiff petitioned for review. Held: (1) a poll or head tax is one that does not take

into account income or resources; and (2) because the arts tax exempts certain

residents based on their income and household resources, it takes income into

account and is not a poll or head tax.

The decision of the Court of Appeals is affirmed. The limited judgment of the

trial court is affirmed.

______________

**  Baldwin, J., retired March 31, 2017, and did not participate in the decision

of this case. Brewer, J., retired June 30, 2017, and did not participate in the deci-

sion of this case. Duncan, J., did not participate in the consideration or decision of

this case.

856 Wittemyer v. City of Portland

LANDAU, J.

The Portland City Code imposes a $35 tax on each

resident of the city who is at least 18 years old, has income of

$1,000 or more per year, and does not reside in a household

that is at or below federal poverty guidelines. The funds gen-

erated by the tax are used to support public art and music

education programs. Plaintiff, a city resident, argues that

the “arts tax” violates Article IX, section 1a, of the Oregon

Constitution, a provision adopted in 1910 that prohibits the

imposition of a “poll or head tax.” He asserts that the tax

violates the state constitution because all who are subject

to it are required to pay the same amount, without regard

to their income. The City of Portland argues that its arts

tax does not violate the state constitutional prohibition on

poll or head taxes because the tax does take income into

account: Those residents who earn less than $1,000 per year

or are within a household that is at or below federal poverty

guidelines do not have to pay the tax at all.

We conclude that a tax that takes into account the

income, property, or other resources of taxpayers is not a

“poll or head tax” within the meaning of Article IX, section

1a. In this case, the City of Portland arts tax exempts certain

residents based on their income and household resources.

Thus, the tax does take income into account and, as a result,

does not amount to a “poll or head tax” within the meaning

of the state constitution.

I. BACKGROUND

The relevant facts are few and undisputed. In

2012, the Portland City Council referred a proposed Arts

Education and Access Income Tax to the Portland voters.

According to the voters’ pamphlet, the tax was intended to

generate funding “to restore arts and music education” in

public schools “by providing stable, long-term funding for

certified arts and music teachers.” Official Voters’ Pamphlet,

General Election, Nov 6, 2012, M-54. The voters passed the

tax in the general election. After it took effect, the City

Council amended it twice in ways that are not pertinent to

the issues in this case.

Cite as 361 Or 854 (2017) 857

The arts tax is now codified at Portland City Code

(PCC) 5.73:

“A tax of $35 is imposed on the income of each

income-earning resident of the City of Portland, Oregon

who is at least eighteen years old. No tax will be imposed on

filer(s) within any household that is at or below the federal

poverty guidelines established by the federal Department

of Health and Human Services for that tax year.”

PCC 5.73.020. Individuals with under $1,000 in income are

not considered “income-earning residents,” meaning that

they are not taxed. PCC 5.73.010(E).

The city adopted administrative rules to implement

the arts tax. Those rules define what “income” includes and

does not include within the meaning of the tax:

“A.  ‘Income’ includes, but is not limited to, all income

earned or received from any source. Examples of income

include, but are not limited to, interest from individual or

joint savings accounts or other interest bearing accounts,

child support payments, alimony, unemployment assis-

tance, disability income, sales of stocks and other prop-

erty (even if sold at a loss), dividends, gross receipts from

a business and wages as an employee. ‘Income’ does not

include benefits payable under the federal old age and sur-

vivors insurance program or benefits under section 3(a),

4(a) or 4(f) of the federal Railroad Retirement Act of 1974,

as amended, or their successors, or any other income a city

or local municipality is prohibited from taxing pursuant to

applicable state or federal law.

“1.  Examples of income the city is prohibited from tax-

ing include, but are not limited to, Social Security ben-

efits, Public Employee Retirement (PERS) pension ben-

efits, federal pension benefits (FERS) and income from

US Treasury bill notes and bonds interest.

“2.  Effective for tax years that begin on or after

January 1, 2015, U.S. Department of Veterans Affairs

(VA) disability benefits will not be considered taxable

income for purposes of the Arts Tax.”

Revenue Division, Arts Education and Access Income Tax

Administrative Rules, https://www.portlandoregon.gov/

revenue/article/434547 (accessed Sept 12, 2017).

858 Wittemyer v. City of Portland

Plaintiff is a resident of Portland who is subject to

the arts tax. He filed a “Complaint for Disparate Treatment

and Unconstitutional Taxation,” which alleged three claims.

Two of the claims concern a dispute between plaintiff and

the city’s Water Bureau; those claims are not at issue in this

appeal. The third claim challenged the constitutionality of

the city’s arts tax under Article IX, section 1a, of the Oregon

Constitution. Plaintiff alleged that the tax “fits perfectly the

definition of a capitation or poll tax: ‘a levy of a fixed amount

on all persons, or a selected group of persons, within the tax-

ing area, imposed without reference to property, income or

activity.’ ” He asked the court to declare the arts tax uncon-

stitutional and to enjoin the city from collecting it.

Both plaintiff and the City of Portland filed motions

for summary judgment on the arts-tax claim. The trial

court denied plaintiff’s motion and granted the city’s motion,

explaining that the arts tax is not a prohibited poll or head

tax, given that it takes into consideration the income of

taxpayers:

“The Arts Tax is not a head or poll tax because it is not

assessed per capita. In assessing the tax, the City considers

persons’ income in three distinct provisions: the tax applies

only to (1) income exceeding $1,000, (2) non-exempt income

sources, and (3) income of individuals residing in house-

holds with income above the federal poverty guidelines.

Taxpayers who are under the age of 18 are exempt from

the tax. The practical effect of the tax is to tax income of

certain City residents within a certain income range and is

therefore not a poll or head tax.”

The court entered a limited judgment dismissing plaintiff’s

arts-tax claim.

Plaintiff appealed, arguing that the trial court

erred in concluding that the city’s arts tax did not violate the

state constitutional prohibition on the imposition of a poll or

head tax and in dismissing his claim. The city responded

that the trial court’s decision was correct. The arts tax,

argued the city, is not a prohibited poll or head tax because

it is assessed only against income from certain sources that

rises above a certain level and takes into account household

resources.

Cite as 361 Or 854 (2017) 859

The Court of Appeals affirmed the dismissal of

plaintiff’s arts tax claim. Wittemyer v. City of Portland, 278

Or App 746, 747, 377 P3d 589 (2016). The court reasoned

that, by the time Article IX, section 1a, was adopted, the

terms “poll tax” and “head tax” were commonly understood

to refer to a very limited form of taxation that did not take

income or resources into account in any way. The court

explained that, at that time, “ ‘poll or head tax’ had a pre-

cise and particular meaning that did not include measures

with exemptions based on the amount or source of individ-

ual or household income. Rather, ‘poll or head’ taxes were

levied uniformly without financial exemption.” Id. at 754-55

(emphasis in original). The court concluded that, because the

Portland arts tax takes into account income and resources,

it does not run afoul of the poll or head tax prohibition of

Article IX, section 1a. Id.

II. ANALYSIS

On review before this court, plaintiff reprises his

contention that the city’s arts tax violates Article IX, sec-

tion 1a. According to plaintiff, the fact that the tax includes

exemptions for persons of limited means is irrelevant to a

determination whether the tax is a poll or head tax within

the meaning of the state constitution. He notes that,

throughout history, poll or head taxes have included such

exemptions and not, as a result, lost their character as poll

or head taxes. He cites as an example a road poll tax that

the Oregon legislature imposed in 1893, which exempted all

women and children, as well as males under 21 and over 50

years of age. He notes that, in spite of those exemptions, the

legislature referred to the tax as a “road poll tax.” In plain-

tiff’s view, the existence of exemptions from taxation—for

whatever reason—is beside the point; the controlling fact

is whether the tax applies uniformly to all persons who are

subject to the tax.

Amicus curiae Bogdanski similarly argues that the

city’s arts tax violates Article IX, section 1a, because “the

amount of the tax is identical for all individuals who are

required to pay it.” Amicus Fruits adds to plaintiff’s histori-

cal examples by noting that poll or head taxes have included

860 Wittemyer v. City of Portland

exemptions based on income and not lost their character as

poll or head taxes.

The city reprises its contention that its arts tax does

not violate the state constitutional prohibition against levy-

ing poll or head taxes because the tax takes into account

sources of income, level of income, and household resources.

The city argues that early historical examples of flat taxes

that included income-based exemptions were actually “cap-

itation” taxes, which the city contends are not the same as

poll or head taxes. According to the city, to constitute a poll

or head tax, the tax must not take income or resources into

account in any manner.

The parties’ arguments present to us a question of

constitutional interpretation: What does Article IX, section

1a, mean when it refers to a “poll or head tax”? We con-

strue the Oregon Constitution in accordance with settled

principles of interpretation, which require us to examine

the text of the provision in dispute in its historical context,

along with relevant cases interpreting it. Priest v. Pearce,

314 Or 411, 415-16, 840 P2d 65 (1992). In the case of con-

stitutional amendments adopted by initiative, our analysis

also includes “sources of information that were available to

the voters” at the time the amendment was adopted, includ-

ing the ballot title, information in the voters’ pamphlet

and contemporaneous news reports and editorials. State v.

Sagdal, 356 Or 639, 642-43, 343 P3d 226 (2015). The goal

is to “determine the meaning of the provision at issue most

likely understood by those who adopted it.” Couey v. Atkins,

357 Or 460, 490-91, 355 P3d 866 (2015). That analysis then

provides the basis for identifying, “in light of the meaning

understood by the framers, relevant underlying principles

that may inform our application of the constitutional text to

modern circumstances.” State v. Davis, 350 Or 440, 446, 256

P3d 1075 (2011).

In this case, our analysis reveals that, at the time

of the adoption of Article IX, section 1a, the phrase “poll

or head tax” would have been understood to constitute a

tax that applied uniformly on a per-person basis, but did

not take into account income, property, or resources in any

fashion, even in defining exemptions from the tax. Thus,

Cite as 361 Or 854 (2017) 861

an otherwise uniform tax that exempted certain individu-

als by income level would not have been regarded as a for-

bidden tax. At earlier times, the phrase may well have had

a broader meaning, one that applied to any tax assessed

uniformly on a per-person basis, regardless of the nature

of exclusions. But beginning in the early to mid-nineteenth

century, courts, commentators, and legislatures began to

view the meaning of the term more narrowly. By the time

that Oregon voters adopted the constitutional prohibition,

the term was understood to apply only to a tax that did not

take into account income, property, or other resources in any

way.

A.  Textual Analysis

We begin with the text of Article IX, section 1a,

which provides that “[n]o poll or head tax shall be levied or

collected in Oregon.” The constitution does not define what

it means by the phrase “poll or head tax.” When the consti-

tution does not define its terms, we presume that those who

adopted them intended or understood such terms to be given

their ordinary meanings. State v. Lane, 357 Or 619, 624-25,

355 P3d 914 (2015). Contemporaneous dictionary definitions

provide a helpful starting point in our determination of that

ordinary meaning. Doe v. Corp. of Presiding Bishop, 352 Or

77, 90, 280 P3d 377 (2012).

As we have noted, Article IX, section 1a, was

adopted by the voters in 1910. At that time, there was a

well-understood meaning of what constituted a “poll” or

“head” tax, words that were commonly used as synonymous

with a “capitation” tax. Each of them referred to a tax on the

head of each individual, without regard to income or prop-

erty or other resources. The 1907 edition of Webster’s, for

example, defined a “poll tax” as “a tax levied by the head or

poll; a capitation tax,” and “capitation” as “[a] tax upon each

head or person, without reference to property; a poll tax.”

Webster’s Int’l Dictionary 214, 1108 (unabridged ed 1907).1

1

Interestingly, although nearly all contemporaneous dictionaries refer to a

“poll tax” or a “capitation tax” as a tax levied on “the head,” none of those dictio-

naries includes a separate entry for the term “head tax” itself. The 1907 edition

of Webster’s did include an entry for the term “head money,” which it defined as “a

capitation tax; a poll tax,” and “head pence, a poll tax.” Webster’s at 676. The 1910

862 Wittemyer v. City of Portland

Contemporaneous law dictionaries were to similar

effect. The 1910 edition of Black’s Law Dictionary, for exam-

ple, defined poll tax as “[a] capitation tax; a tax of a specific

sum levied upon each person within the jurisdiction of the

taxing power and within a certain class (as, all males of a

certain age, etc.) without reference to his property or lack

of it.” Henry Campbell Black, A Law Dictionary 911 (2d

ed 1910). And it defined a “capitation tax” as “[o]ne which

is levied upon the person simply, without any reference to

his property, real or personal.” Id. at 168. Burrill’s Law

Dictionary likewise stated that a poll tax is “[a] tax levied

by the head or poll; a capitation tax,” Alexander M. Burrill,

2 A Law Dictionary and Glossary 3088 (1871), while it

defined a “capitation tax” as “[a] tax on the head or person;

a poll-tax.” Burrill, 1 A Law Dictionary and Glossary at

248. The 1897 edition of Bouvier’s Law Dictionary defines

a “poll tax” as “[a] capitation tax; a tax assessed on every

head, i.e., on every male of a certain age, etc., according

to statute,” John Bouvier, 2 Bouvier’s Law Dictionary 696

(1897), and a “capitation tax” as “[a] poll tax.” Bouvier,

1 Bouvier’s Law Dictionary at 284. Other law dictionar-

ies from the era define “poll tax” in similar fashion. See,

e.g., Benjamin Vaughn Abbott, 2 Dictionary of Terms and

Phrases Used in American or English Jurisprudence 286

(1879) (“a tax of a specific sum upon each person, as dis-

tinguished from a tax on property”); Stewart Rapalje &

Robert L. Lawrence, 2 Dictionary of American and English

Law 973 (1883) (“[a] capitation tax”); William C. Anderson,

A Dictionary of Law 784 (1893) (“[a] tax upon individual

persons.”).

Three observations are worth noting at this early

juncture in our analysis. First, the term “poll tax” was not

originally understood solely—or even primarily—to refer

to a tax imposed as a condition of voting. Rather, the word

“poll” originates from a Middle English word for “head.” 12

edition of Black’s likewise included an entry for “head money,” which it defined as

“a capitation or poll tax.” Black’s at 563. The use of the term “head tax” is appar-

ently of more recent vintage than its synonyms “poll tax” and “capitation tax.”

The earliest reference to a “head tax” in American case law, for example, is Lin

Sing v. Washburn, 20 Cal 534, 550 (1862) (“[C]an a direct head-tax be levied on

one man and not on another?”).

Cite as 361 Or 854 (2017) 863

The Oxford English Dictionary 37 (2d ed 1989). And a “poll

tax” was simply a tax on each head. See generally Brian

Sawers, The Poll Tax Before Jim Crow, 57 Am J Legal Hist

166 (2017). In fact, poll taxes were imposed long before ordi-

nary people could vote.2 In the United States, payment of a

poll tax was sometimes made a condition of voting, and that

practice later came to predominate colloquial understand-

ing of the term. See generally David Schultz & Sarah Clark,

Wealth v. Democracy: The Unfulfilled Promise of the Twenty-

Fourth Amendment, 29 Quinnipiac L Rev 375, 378 (2011)

(“A poll tax in the United States has come to be understood

as some fee paid by an individual as a prerequisite to being

allowed to vote.”).3 But there is no evidence that, at the time

the voters adopted Article IX, section 1a, of the Oregon

Constitution, the ordinary meaning of the term was limited

to that use.

Second, the words “poll” and “head” were used

interchangeably in reference to taxation. It is true that this

court often relies on a presumption that when the people

or legislatures used different words, they intended those

words to have different meanings; application of that pre-

sumption would suggest that “poll” taxes are somehow dis-

tinct from “head” taxes. See, e.g., Monaghan v. School Dist.

No. 1, Clackamas County, 211 Or 360, 366-67, 315 P2d 797

(1957) (“In construing the organic law, the presumption and

legal intendment are that every word, clause, and sentence

therein have been inserted for some useful purpose.”); Baker

v. Croslin, 359 Or 147, 157, 376 P3d 267 (2016) (alternative

2

The use of the term “polling” to refer to voting comes from the same Middle

English word for head and refers to the practice of counting heads to determine

the number of votes. 12 The Oxford English Dictionary at 37.

3

In the late eighteenth century, states imposed the payment of a poll tax

as a condition of voting as a matter of election reform—that is, broadening the

franchise from earlier requirements that conditioned the right to vote on the

ownership of a specified quantity of property. In the early nineteenth century,

a number of states abandoned even the poll tax and adopted “universal”—that

is, universal white male—suffrage. After the Civil War, however, some states

revived the practice of conditioning the right to vote on the payment of a poll tax

as a means of preventing newly freed slaves from voting. See generally Schultz

& Clark, 29 Quinnipiac L Rev at 382-93. The practice was ultimately prohib-

ited by the ratification of the Twenty-Fourth Amendment to the United States

Constitution, at least as to federal elections. See generally Alexander Keyssar,

The Right to Vote: The Contested History of Democracy in the United States 269-

71 (2000).

864 Wittemyer v. City of Portland

terms do not mean the same thing, unless there is evidence

of the statute to the contrary).4

But that is a presumption only, one that may be

rebutted by evidence that words at issue were intended or

understood to be synonymous. As this court explained in

State v. Cloutier, 351 Or 68, 97-98, 261 P3d 1234 (2011),

occasional redundancy “is a fact of life and of law.” Legal

terminology often employs synonyms, “sometimes for clar-

ity, sometimes for emphasis.” Riley Hill General Contractor

v. Tandy Corp., 303 Or 390, 397, 737 P2d 595 (1987); see

also David Mellinkoff, The Language of the Law 363, 345-

364 (1963) (“Legal tradition still makes it fashionable to use

many phrases made up of synonyms.”). This appears to be

such a case, when dictionary definitions—and as our dis-

cussion of the historical context below makes clear, case

law and other sources as well—consistently used the terms

interchangeably.5

Third, the phrase “poll or head tax” also appears to

be synonymous with the term “capitation tax.” Dictionary

definitions repeatedly use the term “capitation” as a syn-

onym with “poll” or “head” in reference to taxation. The

point is significant because early history supplies a num-

ber of examples of “capitation taxes” that included exemp-

tions based on income or poverty. The city argues that those

examples are inapt, because capitation taxation was distinct

from poll or head taxation. We have found no evidence of

4

Amicus Bogdanski, in fact, draws significance from the fact that the con-

stitution refers to the two different terms, arguing that “the voters outlawed a

‘poll or head tax,’ * * * thus indicating that the label placed on the tax is not con-

trolling. If the voters had outlawed only a ‘poll tax,’ a taxing authority imposing

the identical type of charge individuals might have been free to argue that its tax

was instead a ‘head tax.’ ” (Emphasis in original.)

5

Contemporaneous usage confirms that the two words were regarded

as interchangeable. For example, in a 1911 letter to the editor of the Morning

Oregonian, the writer (identified only as “Voter and Taxpayer”) stated that,

“[i]nasmuch as the road tax is a head tax, therefore legally a poll tax * * *.”

Poll Tax and Road Tax, Morning Oregonian, March 13, 1911, at 6. For another

example, consider an 1896 letter to the San Francisco Call, in which the

writer complained of having to pay “a State poll tax, a county poll tax, and a

town poll tax—$6 altogether. This is the most outrageous head tax collected

in this State.” The Odious Poll Tax, San Francisco Call, March 15, 1896, at

20.

Cite as 361 Or 854 (2017) 865

that distinction, however.6 As our discussion of the histor-

ical context for the adoption of the poll or head tax prohi-

bition shows, while there may have been different notions

about what constituted a “poll” or “head” or “capitation” tax

at different points in time, the fact remains that the three

terms have always been used interchangeably.

At the time Oregon voters adopted Article IX, sec-

tion 1a, then, the ordinary meaning of “poll or head tax,”

was a tax uniformly imposed on each individual without ref-

erence to income, property, or other resources. That ordinary

meaning suggests that a tax like the city’s art’s tax, which

contains an exemption that is explicitly based on the income

and household resources of taxpayers, would not constitute

a “poll or head tax” within the meaning of Article IX, section

1a.

Plaintiff and amici argue, though, that the ordinary

meaning that we have described cannot be reconciled with

historical examples of poll taxation that included exemp-

tions based on poverty. That must mean, they contend, that

an otherwise uniform tax does not lose its character as a

“poll or head tax” if exemptions are based on income, prop-

erty, or other resources. All that counts, plaintiff argues, is

whether income, property, or other resources are taken into

account with respect to the amount of the tax itself.

That is a fair point. If examples of actual poll taxes—

especially examples at the time Article IX, section 1a, was

adopted—included exemptions based on income, property, or

other resources, then it is likely that such exemptions would

have been understood to be irrelevant to whether a tax was

a “poll or head tax.” To address that contention requires

6

The city cites James R. Campbell, Dispelling the Fog About Direct Taxation,

1 Brit J Am Legal Stud 109, 124 (2012), for the proposition that “capitation” taxes

were distinct from “poll or head taxes,” at least before the nineteenth century.

Campbell does suggest that distinction. But it appears to be contradicted by dic-

tionaries of the era, see, e.g., John Ash, The New And Complete Dictionary of the

English Language (1775) (defining “capitation” as “[a] numeration of the people

by the head, a poll tax”), and by multiple examples of contemporaneous usage,

as, for example, when Hamilton stated that the reference to “direct” taxation

in Article I, section 9, of the federal Constitution referred to “Capitation or Poll

taxes.” Maeva Marcus, The Documentary History of the Supreme Court of the

United States, 1789-1800 § 7, 467 (2003).

866 Wittemyer v. City of Portland

a more thorough examination of the ways in which poll or

head taxes have been used and described in history. We

turn, then, to the broader historical context within which

the voters of Oregon adopted Article IX, section 1a.

B.  Historical Context

Poll or head taxes are ancient in origin. But

the precise nature of what constituted a “poll” or “head” tax

did not remain constant throughout history. As modern

scholars have noted, there are distinct histories concerning

the use of poll taxes. “Each history carries with it a unique

set of meanings[.] * * * Depending on which genealogy one

draws upon, the poll tax takes on a different meaning and

purpose.” Schultz & Clark, 29 Quinnipiac L Rev at 378.

Briefly, early European poll taxes began as uniform,

flat taxes applied to all individuals. Obvious inequities inher-

ent in applying a flat tax to all individuals—without refer-

ence to resources—led to the imposition of poll taxes that

were graduated, usually by class or rank. The American col-

onies at first adopted such graduated poll taxes, sometimes

exempting the poor or disabled. But, beginning in the early

to mid-nineteenth century, American conceptions of what

constituted a “poll,” “head,” or “capitation” tax narrowed,

so that such taxation came to be understood to apply only

to taxation that did not take income, resources, or property

into account in any way, including defining exemptions. By

the twentieth century, examples of “poll,” “head,” or “capita-

tion” taxes that included exemptions based on ability to pay

had disappeared completely.

1.  Middle Eastern and European poll taxes

In Biblical times, individuals were subject to four

kinds of direct taxes: “income taxes, property taxes, spe-

cial assessment taxes, and poll or capitation taxes.” Manuel

L. Jose & Charles K. Moore, The Development of Taxation

in the Bible: Improvements in Counting, Measurement, and

Computation in the Ancient Middle East, 25 Acct Historians

J 63, 64 (1998). The poll tax first appears in the book of

Exodus, in which a tax is levied on each Israelite over the

age of 20 at the time of their departure from Egypt. Exodus

30:12. Poll taxes appear again in Nehemiah and again in

Cite as 361 Or 854 (2017) 867

the book of Matthew in the New Testament. Nehemiah

10:32; Matthew 17:24-27.

In Roman Egypt, individuals were subject to a

tributum capitis, that is, a capitation or poll tax. Dominic

Rathbone, Egypt, Augustus, and Roman Taxation, 4 Cahiers

du Centre Gustave Glotz 86-87 (1993). The tax applied only

to Egyptian subjects and their slaves, not to the Roman cit-

izens or their slaves. Id. at 88. In the third century B.C.E.,

both men and women were subject to a flat tax, referred to

as a “capitation tax,” though men paid a slightly higher uni-

form rate than women did. Id. at 90-91.

In the fourth through sixth centuries C.E., a poll

tax was levied on the residents of Sassanid Babylon, which

is now much of Iraq and Syria. David M. Goodblatt, The Poll

Tax in Sasanian Babylonia: The Talmudic Evidence, 22 J

Econ & Social Hist Orient 233 (1979). The poll tax exempted

“nobles, magnates, soldiers, priests, scribes, and members

of the royal bureaucracy.” Id. at 277. It applied to individ-

uals between the ages of 20 and 50, likely only males but

potentially women as well. Id. at 277, 289. And Byzantine

emperors also imposed a universal poll tax beginning in the

seventh century C.E. See Leslie Brubaker & John Haldon,

Byzantium in the Iconoclast Era c. 680-850, at 718 (2011);

George Ostrogorsky, History of the Byzantine State 137 (Joan

Hussey trans, Rutgers University Press rev ed 1969). The

Muslim caliphates similarly imposed a poll tax known as

jizya on all non-Muslim residents. ‘Abdal ‘Aziz Duri, Notes

on Taxation in Early Islam, 17 J Econ & Social Hist Orient

136, 137 (1974). In some cases, the tax was imposed at three

different rates depending on the financial situation of the

individual, but scholars disagree as to whether there was

any exemption for poverty. Compare Ziauddin Ahmed, The

Concept of Jizya in Early Islam, 14 Islamic Stud 293, 302

(1975) (describing exemptions for poverty, blindness, illness,

and priesthood) with Eli Alshech, Islamic Law, Practice, and

Legal Doctrine: Exempting the Poor from the Jizya under the

Ayyubids (1171-1250), 10 Islamic L & Soc’y 348 (2003) (argu-

ing that no poverty exemption actually existed).

The first poll tax in England was levied in 1377,

during the reign of Edward III, on every person over the age

868 Wittemyer v. City of Portland

of fourteen. Stephen Dowell, 3 A History of Taxation and

Taxes in England: From the Earliest Times to the Present

Day 5 (1884). The unfairness of subjecting all to the same

tax, without reference to rank or resources, led to social

unrest; it was a prime cause of the famous Wat Tyler rebel-

lion of 1381. See generally Juliet Barker, England Arise:

The People, the King, and the Great Revolt of 1381 (2015).

Richard II ultimately modified the tax so that different tax

rates applied to different classifications of taxpayers, “calcu-

lated by reference to the presumed capability of persons of

their class, and paid so much per head.” Dowell, History of

Taxation and Taxes in England, at 6. Individuals not within

a specific class paid one groat per head “except real bona fide

beggars.” Id.

In the sixteenth century, Henry VIII imposed a poll

tax that again required uniform rates depending on rank

and income. Id. at 8. A subsequent poll tax contained gra-

dations based on level of the nobility, but for all those below

the rank of “gentleman spending 100l. per annum * * * the

meanest throughout the kingdom was not excused under

6d.” Id. at 8-9. In the seventeenth century, another graded

poll tax charged fixed amounts linked to specific professions.

Id. at 10-11.

Poll taxes were abolished after 1698 in England, in

part due to their massive unpopularity and in part because

“no poll [tax] ever produced anything like the amount rea-

sonably expected. The country gentlemen declined to squeeze

pennies from the poor.” Id. Critics of poll taxes included

Adam Smith, who complained that capitation taxation was

“arbitrary and uncertain,” III Works of Adam Smith: The

Nature and Causes of the Wealth of Nations 327-28 (1812),

and David Hume, who took issue with their “unavoidable

inequality” and called them both “arbitrary” and “danger-

ous.” David Hume, I Essays and Treatises on Several Subjects

366 (1809).

At the end of the seventeenth century, France

imposed a capitation tax that continued up to the time of

the Revolution a century later. It was graduated by as many

as 22 different classes. C.F. Bastable, Public Finance 434 (2d

Cite as 361 Or 854 (2017) 869

ed 1895). The Italian states likewise had a complicated set

of graduated capitation taxes. Id.

In nineteenth-century Prussia, the general pop-

ulation was subjected to a poll tax. Joseph A. Hill, The

Prussian Income Tax, 6 Q J Econ 207 (1892). It was collected

in the amount of “one-half thaler a year, from all persons

over twelve years of age, without regard to differences of

wealth or social station.” Id. When Prussia faced significant

economic difficulties, the uniform poll tax was abandoned,

and the government substituted a “class tax” with twelve

different gradations of tax rate, only the lowest of which

was the same as the previous poll tax. Id. at 209. The new

class tax was expected to avoid “the injustice of exacting as

much from the poorest as from the wealthiest citizen,” as

had occurred with the poll tax, and instead “would take into

account, indirectly at least, differences in wealth.” Id. at 210.

2.  American poll taxation

Poll or head taxes have a long history in this coun-

try as well. In 1619, Virginia became the first colony to

impose a poll tax. The tax “applied to free men regardless of

occupation or the amount of property” they owned. Edward

T. Howe & Donald J. Reeb, The Historical Evolution of State

and Local Tax Systems, 78 Soc Sci Q 109, 110 (1997). Poll

taxes were almost ubiquitous in the colonies before the

Revolution and continued in many states afterward. Harvey

Walker, The Poll Tax in the United States, 9 Bull Nat’l Tax

Ass’n 46, 47 (1923). The taxes were generally levied “upon

all electors, regardless of sex” when imposed for the support

of schools, and on “able-bodied males” of voting age when

imposed for the upkeep of roads. Id. at 49.

Early American poll taxes included exceptions.

Some states, for example, excepted volunteer firemen, sol-

diers, or mariners at sea. Id. at 50. Others carved out excep-

tions based on the income or resources of the taxpayers.

See generally Robert G. Natelson, What the Constitution

Means by “Duties, Imposts, and Excises”—and “Taxes”

(Direct or Otherwise), 66 Case Western Reserve L Rev 297,

316-17 (2015) (“American legislatures could, and often

did, reduce or eliminate the poll tax due from the poor.”).

870 Wittemyer v. City of Portland

Connecticut, for example, allowed exceptions from its poll

tax for hardship and poverty. Public Records of the State of

Connecticut from May, 1778, to April, 1780, at 302 (Charles

J. Hoadly ed. 1895). New Hampshire similarly imposed a

poll tax on all males between eighteen and seventy years

except, among others, “paupers.” XXI Early State Papers of

New Hampshire 124 (Albert Stillman Batchellor ed. 1892).

Massachusetts levied a poll tax but provided for tax reduc-

tions for “persons who through age, infirmity or poverty

are unable to pay.” Commonwealth of Massachusetts, The

Acts and Laws of the Commonwealth of Massachusetts 170

(Boston 1890).

In a related vein, poll taxes levied to fund roadwork,

which were assessed only against able-bodied males over a

specified age, sometimes included exceptions for those who

could not afford to pay them. Such individuals were not

actually exempted from paying the tax, however; they were

allowed to contribute labor in an equivalent amount. For

example, a person who could not afford to pay a three-dollar

poll tax instead could spend three days repairing the roads.

M.K. McKay, History of the Poll Tax in Illinois, 12 J Ill St

Hist Soc’y 41, 42-43 (1919); Operation of Poll Tax in Iowa, 6

Publications Am Stat Ass’n 53, 53-54 (1898).

Even with such exceptions and alternate meth-

ods of payment, poll taxes were unpopular in America

from early on. Maryland’s Declaration of Rights asserted

that “levying taxes by the poll is grievous and oppressive,

and ought to be abolished.” Maryland Constitution, art 13

(1776). The United States Constitution itself, in Article I,

section 9, provides that “[n]o capitation, or other direct, Tax

shall be laid,” unless apportioned according to population.

Opponents railed against poll taxes as “abhorrent to the

feelings of human nature.” 6 The Documentary History of

the Ratification of the Constitution 1251 (John P. Kaminski

& Gaspare J. Saladino eds. 2000). Alexander Hamilton

acknowledged that he was “as much opposed to a capitation

as any man” and that poll taxes were commonly regarded as

“tyrannical.” 12 The Documentary History of the Ratification

of the Constitution 1984 (John P. Kaminski & Gaspare J.

Saladino eds. 2008). Throughout the nineteenth and into

Cite as 361 Or 854 (2017) 871

the twentieth centuries, the poll tax continued to be criti-

cized in similar terms.7

In response to such criticism, state taxation increas-

ingly took income, resources, and property into account.

Some states graduated taxation on the basis of occupations

as a surrogate for ability to pay, levying what were known

as “faculty taxes”—based on the ability, or “faculty,” of an

individual to pay. Those taxes were the progenitors of the

modern income tax. At the same time, states shifted to tax-

ation of property itself, as opposed to taxation of persons.

As a late-nineteenth-century treatise on public finance

explained, “[t]he equal taxation of persons by poll taxes, or

capitations, generally develop[ed] by some form of gradua-

tion into an income tax.” Bastable, Public Finance at 433.

Poll taxation did not disappear. But an understand-

ing of what it amounted to changed. In earlier times, a tax

that took into account income, resources, or property might

still be called a “poll tax.” By the late-nineteenth century,

however, the opposite came to be the case. For example,

Thomas Cooley’s treatise on the law of taxation discussed

capitation or poll taxes, noting:

“These are not a common resort in modern times, and only

in a few cases could they be either just or politic. As they

regard only the person, they must be shared equally by all,

7

Poll taxation usually was criticized on the ground that it failed to take into

adequate account the taxpayer’s ability to pay. As one early twentieth century

writer put it:

“The characteristics of a good tax are: (1) ability to pay; (2) minimum cost of

collection; and (3) maximum benefits received. The poll tax violates at least

two of the foregoing principles. It does not take into consideration ability to

pay or the benefits received.”

C.T. Malan, A History of the Poll Tax in Indiana, 31 Ind Mag Hist 324, 326-28

(1935). Complaints about poll taxation were a frequent feature of newspapers at

the time, especially at the turn of the century. See, e.g., The Poll Tax, Sausalito

News, December 26, 1896, at 2 (“The worst feature of the poll tax after its gen-

eral injustice is the fact that it is not and cannot be uniformly imposed and col-

lected.”); Topics of the Day, The Independent, March 31, 1898, at 3 (referring to

the poll tax in Hawaii as “the most unjust of all taxes”); A Relic of the Dark Ages,

Los Angeles Herald, June 26, 1898, at 18 (“The law is a disgrace and degrada-

tion to free Americans.”); An Important Point, Arizona Republican, October 15,

1900, at 2 (“[T]he poll tax is unjust.”); Anti Poll Tax, The Topeka State Journal,

April 24, 1900, at 3 (“The poll tax is one of the most unjust that bears upon the

poor.”).

872 Wittemyer v. City of Portland

except under governments where privileged orders are rec-

ognized, and where they might be graded according to the

orders to which the several persons taxed belong. If the tax

is graded by property, it is obviously something besides a

capitation tax.”

Thomas M. Cooley, A Treatise on the Law of Taxation,

Including the Law of Local Assessments 18 (1881) (emphasis

added).

By 1900, the idea of what constituted a “poll tax”

in America had shifted to a tax that uniformly applied to

each individual taxpayer, with no consideration of income,

property, or other resources whatever. Although poll taxes

still existed throughout the United States at the time, they

no longer included exclusions based on income, property, or

other resources; such exclusions were regarded as having

the effect of transforming the tax from a poll tax to some-

thing else.8

Writings of the time distinguished “a uniform poll-

tax” from “a tax varying with the wealth or income of the

taxpayer.” Max West, The Income Tax and the National

8

We have identified one arguable exception that existed as of 1910. A 1909

North Carolina statute authorized county commissioners, on a case-by-case

basis, to relieve individuals of the obligation to pay a local poll tax “on account of

poverty or infirmity.” Public Laws of the State of North Carolina, Session of 1909,

chap 440, § 11 (1909). The tax law itself, however, did not state any particular

exclusion on the basis of income, property, or other resources. Nor did the law

state at what level of resources the tax would no longer apply. Rather, it simply

authorized a local government body to relieve an individual from the tax in its

discretion.

Amicus Fruit also argues that road poll taxes, which existed until the early

twentieth century, should be understood to have included exemptions based on

ability to pay. He reasons that such taxes, which typically applied to men below

the age of 50, “stand in as a reasonable approximation of the top end of earning

years” at the time. We have found no support for such an interpretation of road

taxes. To begin with, the fact that age 50 was at the top end of earning years at

the time does not explain why the tax applied to males as young as 21. Aside from

that, the historical evidence suggests a different reason for the age range. As we

have noted, the widespread practice was for such taxes to apply to “able bodied”

males of specified age to pay the tax or, in lieu of paying the tax, to provide labor

for a specified number of days. See, e.g., McKay, 12 J Ill St Hist Soc’y at 42-43

(referring to the levy of road taxes on a “labor basis”). The range of ages was more

likely aligned with the ages of men most likely capable of performing such work.

Thus, while poll taxes levied for the support of schools applied to all electors, road

taxes were levied only on “able-bodied males.” Walker, 9 Bull Nat’l Tax Ass’n at

49.

Cite as 361 Or 854 (2017) 873

Revenues, 8 J Pol Econ 433, 434 (1900). A standard taxation

treatise of the time, for instance, made the following obser-

vations about the nature of poll taxation:

“In a strictly economic sense the essential requisite of

a ‘poll’ or ‘head’ tax is that it be laid on all polls or heads,

and be unvarying in amount. * * * So soon, however, as

the amount of the tax enacted is made dependent upon the

amount of the property owned, the tax ceases to be a varying

poll tax, and becomes a tax on the property itself.”

David Ames Wells, The Theory and Practice of Taxation 330

(1900). A 1908 text similarly observed that “[i]n some taxes it

is impracticable to introduce a progressive scale, * * * as, e.g.,

tithes or poll taxes,—for a graduated poll tax is really not a

poll tax at all, but a class tax.” E.R.A. Seligman, Progressive

Taxation in Theory and Practice, 9 Am Econ Ass’n Q 300

(1908) (emphasis added). And a U.S. Census Bureau report

of the same era defined a poll tax as “a direct personal tax,

usually on males, in certain classes, apportioned, as the

name implies, at so much per head.” U.S. Dep’t of Commerce

& Labor, Wealth, Debt and Taxation 618 (1907). The report

contrasted taxation of “persons, natural or corporate, in pro-

portion to their property,” which ceased to be poll taxation

and amounted to property taxation. Id.

That shift in understanding about what constituted

a “poll tax” is at odds with earlier ideas and practices, to be

sure. In fact, commentators at the time noted that very point.

Wells’ Theory and Practice of Taxation, for example, observed

that “[t]he popular idea of a poll tax in the United States”

is “not, however, in accord with historical experience.” Id. at

330. Contrasting then-current taxation practices with those

of the colonial era, Wells stated that, “instead of having a

fixed sum, as was subsequently the rule in assessing a poll

tax, the value of the poll was rated according to the earning

capacity of the individual.” Id. at 334 (emphasis added).

In short, although earlier in American history

the poll tax had a broader meaning, by 1900 it referred to

taxation that did not take into account income, property,

or resources in any manner. If a tax took such things into

account—even in defining exemptions from an otherwise

874 Wittemyer v. City of Portland

uniform tax—it was regarded as something other than a

poll, head, or capitation tax.

3.  Nineteenth-century case law

Most state constitutions contained dollar limits on

the amount of a poll or capitation tax that could be levied in

any given year. And a number of taxes were challenged on

the ground that, as poll or capitation taxes, they exceeded

the annual constitutional limits. Court decisions resolving

those disputes uniformly construed a “poll” or “capitation”

tax quite narrowly. They did not address the precise ques-

tion before us, viz., whether a “poll or head tax” is a tax that

includes exemptions based on income, property, or other

resources. But they did contain discussions concerning the

nature of poll taxation—discussions that defined the poll

tax fairly categorically as a tax that does not take such mat-

ters into account in any fashion.

The North Carolina Supreme Court’s decision in

Gardner v. Hall, 61 NC 21 (1866), provides a useful illus-

tration. In that case, the state legislature imposed a uni-

form tax on each person who travelled by rail. The plaintiff

argued that the tax amounted to a poll tax and, as such,

exceeded the annual limit on poll taxation under the state

constitution. The court rejected the argument, explaining

that, “[a] capitation tax is one upon the person simply, with-

out any reference to his property, real or personal, or to any

business in which he may be engaged or to any employment

which he may follow.” Id. at 22. In this case, the court con-

cluded, the tax was levied on an individual’s use of the rail-

way. As such, the court said, “the impost is not a capitation,

that is, it is not a tax upon his poll or head, simply.” Id.

In Short v. State, 80 Md 392, 31 A 322 (1895), the

Maryland Court of Appeals addressed whether a state law

requiring all able-bodied males between the ages of 21 and

51 to spend two days repairing roads or pay a fee in lieu of

that labor was a “poll tax” prohibited by the state’s consti-

tution. The court ultimately concluded that a law requiring

labor was not a “tax,” but the court’s opinion included an

extended discussion of the nature of poll taxation and the

reason for the state constitutional prohibition. In the court’s

Cite as 361 Or 854 (2017) 875

view, “[s]uch taxes [were] levied without reference to the

ability or the means of the ‘taxable’ to pay” and thus were

“burdensome and oppressive.” Id. at 323. Other state court

cases adopted a similarly narrow view of poll taxation, one

that—by definition—omitted any consideration of a taxpay-

er’s ability to pay. See, e.g., State v. Gazlay, 5 Ohio 14, 21

(1831) (poll taxes are those “imposed numerically upon cit-

izens, without any reference to their capacity of sustaining

the burden”); State v. Broadnax, 128 SW 177 (Mo 1910) (“A

poll tax does not depend upon the income or earning capac-

ity of the person subject to it.”); Thurston County v. Tenino

Stone Quarries, 44 Wash 351, 356, 87 P 634 (1906) (“The

underlying nature and purpose of a poll tax are disassoci-

ated entirely from any consideration of property.”).9

The United States Supreme Court issued several

opinions concerning what constitutes a “direct” tax that

requires apportionment under Article I, section 9, of the

federal Constitution. In each of those cases, the Court men-

tioned taxes on land and capitation taxes as examples of the

limited sort of taxes that are “direct” capitation taxes. And,

as did the state courts we have cited, the Court adopted a

similarly narrow view of what constituted a capitation tax.

In Hylton v. United States, 3 US 171, 1 L Ed 556 (1796), for

example, the Court addressed the constitutionality of a con-

gressional tax on carriages. Justice Chase suggested that

the tax on carriages was not a “direct” tax, because such

direct taxes were limited to land levies and “a capitation or

poll tax,” that is, a tax “without regard to property, profes-

sion, or any other circumstance.” Id. at 175 (seriatim opin-

ion).10 A century later, in People of State of New York ex rel.

90

Arguments of counsel during the nineteenth century consistently reflect

the same understanding of what constituted a “poll tax.” In Blessing v City of

Galveston, 42 Tex 641, 649 (1875), for example, counsel argued without dispute

that

“it is in the nature of a poll tax; that property, income, or salary, forms no

part of the subject; that the tax is to be imposed * * * without reference to

property, either in amount or kind, without reference to any income or capital

that the persons may have, or may receive, or may employ in the pursuit of

their occupations; that the tax is to be imposed without reference to personal

skill or energy, to success or failure, or to the accommodations of a hotel, or to

the amount of deposits in a bank, or stalls in a stable * * *.”

10

Justices Patterson and Iredell joined Chase as to the limited nature of

“direct” taxation. 3 US at 177 (Patterson, J.), 183 (Iredell, J.).

876 Wittemyer v. City of Portland

Hatch v. Reardon, 204 US 152, 159-60, 27 S Ct 188, 190, 51

L Ed 415 (1907), the Court referred to “the poll tax of a fixed

sum, irrespective of income or earning capacity.”11

Interestingly, the historical accuracy of Supreme

Court’s remarks about the limited nature of poll taxation

has been called into question by some scholars. Professor

Robert Natelson, for example, contends that the Court’s

description of a capitation tax as in no way taking into

account income, property, or other resources was “unques-

tionably false,” given the fact that capitation taxation in the

early Republic not infrequently created exemptions on those

very bases. Natelson, 66 Case Western Reserve L Rev at

349. But such criticism only serves to bear out the point that

such an understanding of what constituted a capitation tax

was prevalent, even if historically erroneous.12

4.  Poll taxes in Oregon

The very first compulsory tax levied by the Oregon

provisional government included a poll tax of 50 cents for

each adult male. Leslie M. Scott, First Taxes in Oregon, 1844,

31 Or Hist Q 1 (1930). The territorial legislature continued

the tax in 1854. F.G. Young, The Financial History of the

State of Oregon, 10 Or Hist Q 263, 282 (1909). And, follow-

ing statehood, the Oregon Legislature adopted a poll tax “to

defray current expenses of the state.” Id. Firefighters were

exempted from the poll tax in 1870. Members of the state

militia were relieved of paying the tax shortly after that. Id.

A road poll tax was later added that required “[e]very male

11

Also noteworthy—regarding a tax structured very much like the city’s arts

tax—is a dissenting opinion in Pollock v. Farmers’ Loan & Trust Co., 158 US 601,

15 S Ct 912, 39 L Ed 1108 (1895), a case in which the Court held unconstitutional

a tax on interest, dividends, and rent. The tax included an exemption for families

earning less than $4,000 per year. A majority of the Court reasoned that the tax

was, in effect, a tax on land and thus a direct tax that required apportionment

under Article I, section 9. Id. at 638. Justice Brown dissented, arguing that the

tax was not a tax on land. Nor, he contended, was it a capitation tax, given the

exemption based on the income of taxpayers. Id. at 693-94.

12

Courts in other jurisdictions appear to be influenced by that understand-

ing of what constitutes a “poll tax” down to the present. In Tiefel v. Gilligan, 321

NE2d 247 (Ohio Ct App 1974), for example, the court addressed the constitu-

tionality of a uniform tax applied to all Ohio residents who received income in

the state, but exempted those with an adjusted gross income of $500 or less. The

court concluded that the tax was not an unconstitutional poll tax because of the

income exclusion. Id. at 251.

Cite as 361 Or 854 (2017) 877

inhabitant of this state over twenty-one years of age and

under fifty years of age,” except firefighters, to pay three

dollars annually. Lord’s Oregon Laws, title XLII, ch III,

§ 6326 (1910). Consistently with what we have described

as nineteenth-century conceptions of poll taxation, none of

the Oregon poll taxes included exemptions based on income,

property, or other resources.

From the beginning, the poll taxes were unpopu-

lar. It is estimated that only about one-third of the taxable

population paid the general poll tax during the 1862-64

biennium. Young, 10 Or Hist Q at 282. By 1905, only about

one-tenth paid the tax. Id. at 283. As for the road poll tax,

according to one Oregon newspaper account of the time,

only about one in five persons paid it. That Poll Tax Fake,

Morning Oregonian, October 30, 1911, at 6.

Objections to poll taxation appeared frequently in

local newspapers of the era. The Oregon City Enterprise,

for instance, referred to the tax as “unjust and difficult to

collect.” Abolishing the Poll Tax, Oregon City Enterprise,

January 15, 1909, at 4. The Coos Bay Times similarly

referred to the tax as “a fraud and an imposition. It should

be done away with entirely as unjust.” Poll Tax A Humbug,

Coos Bay Times, January 29, 1910, at 4. The Daily Capitol

Journal asserted that “[t]he city that would come out boldly

and abolish this tax would be considered a progressive com-

munity and laboring men would go to such a city to live.”

Oregon Boot Method Collecting Poll Tax, Daily Capitol

Journal, March 30, 1910, at 1.

Not surprisingly, the legislature repealed the state

poll tax in 1907. Or Laws 1907, ch 228; Or Laws 1907,

ch 267. That left only the road poll tax, which, as we have

noted, was hardly enforced. In that light, the fact that the

voters adopted a constitutional amendment prohibiting

further poll taxation in 1910—when poll taxation barely

existed in the state—may seem odd. The explanation lies in

the fact that the poll-tax prohibition was used as something

of a stalking horse for an unrelated tax measure. There was,

in fact, more than a touch of scandal associated with the

adoption of Article IX, section 1a.

878 Wittemyer v. City of Portland

Around the turn of the twentieth century, there

arose a “reform” movement influenced by the views of

political economist Henry George to reduce state taxation

to a single tax on increases in land values.13 Among such

reformers was William Simon U’Ren, who led an effort to

place a “single tax” measure on the 1908 ballot. Robert C.

Woodward, W.S. U’Ren and the Single Tax in Oregon, 61 Or

Hist Q 46, 50-51 (1960). The measure failed resoundingly.

Id. Undaunted, U’Ren came up with an alternative mea-

sure, which permitted a single tax at the county level, but

which led with a seemingly unrelated prohibition against

levying or collecting poll or head taxes:

“No poll or head tax shall be levied or collected in Oregon;

no bill regulating taxation or exemption throughout the

state shall become a law until approved by the people of

the State at a regular general election; none of the restric-

tions of the Constitution shall apply to measures approved

by the people declaring what shall be subject to taxation or

exemption and how it shall be taxed or exempted whether

proposed by the Legislative

Assembly or by initiative petition; but the people of the

several counties are hereby empowered and authorized

to regulate taxation and exemptions within their several

counties, subject to any general law which may be hereafter

enacted.”

Official Voters’ Pamphlet, General Election, Nov 8, 1910,

72. The measure actually never used the words “single tax.”

But it eliminated the authority of the legislature to regulate

taxes in favor of county authority, which supporters believed

would allow them to introduce single taxation gradually,

beginning at the county level. Woodward, 61 Or Hist Q at

54.

Although the measure was drafted by the Single

Tax League, it was portrayed as emanating from labor

unions, which supplied the only explanatory statement to

13

According to George, the basic theory of single taxation was that increases

in the value of land were “unearned” and so belonged to the public. Taxing the

unearned increase in land values, he suggested, would encourage large land-

holders to break up their holdings, decreasing the concentration of wealth and

encouraging the devotion of land to more productive use. See generally Robert

D. Johnston, The Radical Middle Class: Populist Democracy and the Question of

Capitalism in Progressive Era Portland 160-61 (2006).

Cite as 361 Or 854 (2017) 879

appear in the 1910 Voters’ Pamphlet concerning the mea-

sure. Id. In accordance with the strategy of the measure’s

proponents, the Voters’ Pamphlet statement emphasized the

significance of the elimination of the poll tax and did not

mention a single tax:

“[This measure] will repeal the poll tax, which is the most

odious and unjust of all taxes[.] * * * With very rare excep-

tions, the only men who pay the poll tax are a few laborers

and men who own real property. The tax is unjust not only

because it is collected from very few of the men who are

supposed to pay, but also because it bears so unequally on

men in proportion to their ability to pay.

“The laborer supporting a family on $2 a day pays

exactly the same poll tax as the corporation manager with

a salary of ten thousand dollars a year. If the laborer can

starve his family into saving fifty cents a day, the savings

of six days’ labor will just pay his poll tax; the corporation

manager can easily save enough to pay his poll tax from

his salary for two hours’ work. One man lives easily and

saves enough to pay his share of the tax with two hours’

work; the other lives hard and save enough on sixty hours’

work to pay his share of the tax. The odds are thirty to one

in favor of the rich man. Is it possible to imagine a more

outrageously unjust tax than this?”

Official Voters’ Pamphlet, General Election, Nov 8, 1910,

24-25.

The measure passed. But a storm of controversy fol-

lowed, given that the vote had reversed the decision of the

voters to reject the single tax only two years earlier. The

verdict was that the voters had been duped by the inclusion

of the poll-tax prohibition. See generally Gordon B. Dodds,

Oregon: A Bicentennial History 170-71 (1977) (“[T]he funda-

mental reason that it passed was that it was stated in a

duplicitous manner so that the voter had no idea for what

he was voting.”). As a Morning Oregonian editorial declared

shortly after the election:

“It is not possible, of course, that the people of Oregon

intended to reverse their verdict of 1908 as to the single

tax. They are not for the single tax, and the single-taxers

know it. No measure definitely and clearly proposing single

tax would or could have the slightest chance of enactment.

880 Wittemyer v. City of Portland

“How, then could this extraordinary measure be so

framed as to find favor with the electorate? By the easy and

simple device of adding a catch line abolishing the poll tax.

The Oregonian does not hesitate to declare that the major-

ity of the voters of Oregon who permitted themselves to be

trapped into approval of this amendment were influenced

chiefly by a purpose to do away with the odious head tax.

It made no difference that there is no poll tax in Oregon

and has not been since 1907, when it was abolished by stat-

ute. There it was on the ballot, and the voter struck at it.

He killed it forever, as he thought, the unpopular head tax

and by the same stroke of the pen inadvertently opened the

gates to the triumphant invasion of Oregon by the single

taxers.

“* * * * *

“* * * The abolition of the head tax should stand; but the

single tax must go.”

Introducing the Single Tax, Morning Oregonian, November 21,

1910, at 6.14

The legislature quickly approved a resolution send-

ing to the voters a measure to repeal all of the 1910 mea-

sure except the poll-tax prohibition, with legislators railing

against it as a “fraud” perpetrated by “soapbox orators” who

had “hoodwinked” the people with the lure of eliminating

a poll tax that no longer really existed. Woodward, 61 Or

Hist Q at 55.15 And, in 1912, the voters approved the mea-

sure. 1913 Or Laws 7 (approving Senate Joint Resolution

14

Other newspapers around the state similarly complained that the measure

had been deviously packaged as a “wedge” to make possible the adoption of a sin-

gle tax. See, e.g., Change is Sweeping: New Amendment Opens Way for Single Tax,

Polk County Observer, November 22, 1910, at 1 (“The bill is regarded as having

been designed as an entering wedge for ‘single tax’ measures.”); Tax Amendment

is Carried, La Grande Evening Observer, November 22, 1910, at 2 (same); New

County Tax Law Inoperative, East Oregonian, November 23, 1910, at 8 (same).

The extent to which the voters were actually fooled by the ploy is uncertain. Some

modern historians suggest that the voters were well aware of what the single-

taxers were up to. See, e.g., Johnston, The Radical Middle Class at 163 n 12.

15

A statement in support of the repeal—prepared by the state Board of Tax

Commissioners and a Legislative Tax Committee—similarly explained that the

action was necessitated by the fact that the original measure “appeared on the

ballot, at the election under an attractive title, not fully expressive of its real pur-

pose, at the same time giving prominence to an incidental feature that was some-

thing of a joker, providing for repeal of the poll tax.” Official Voters Pamphlet,

General Election, Nov 5, 1912, 23.

Cite as 361 Or 854 (2017) 881

No. 10 amending Article IX, section 1a, of the Oregon

Constitution).

The circumstances of the adoption of the 1910

amendment certainly are unusual. But, for our purposes,

the most significant point is that nothing in the adoption

of Article IX, section 1a, either in general or in the state-

ment in support of its passage, suggests that the mean-

ing of “poll or head tax” was different from what we have

described as the general understanding of the terms at that

time. In fact, to the extent that the framers of what became

Article IX, section 1a, used the poll or head tax prohibition

as a stalking horse for the single tax initiative, they did so

precisely because of the antipathy to poll taxation that was

common throughout the country at that time.

C.  Summary of Analysis

In sum, then, Article IX, section 1a, prohibits the

levying or collection of a “poll or head tax.” The ordinary

meaning of a “poll” or “head” tax at the time that provision

was adopted was that such a tax was uniformly applied on

a per capita basis and did not take into account the income,

property, or other resources of a taxpayer in any way. Our

analysis of the broader historical context of poll taxation

shows that, although early poll taxes sometimes did take

income, property, or other resources into account without

losing their character as poll taxes, by the nineteenth cen-

tury, the accepted meaning of the term was narrower than

that. Case law and treatises from the time demonstrate that

a poll tax was understood not to take income, property, or

other resources into account in any way.

As we noted at the outset of our analysis, we are

not necessarily limited in our interpretation of the state’s

constitution to the understandings or intentions of those

who adopted it a century or more ago. Rather—especially

with respect to older, more generally worded provisions of

the constitution—we tend to focus on such contemporaneous

understandings or intentions for the purpose of identifying

underlying principles that may be applied to modern cir-

cumstances. Davis, 350 Or at 446.

882 Wittemyer v. City of Portland

In this case, our analysis of the intended meaning

or understanding of the phrase “poll or head taxes,” as used

in Article IX, section 1a, shows that the underlying concern

was that taxation should take into account the ability to pay

in some fashion. Taxation that failed to account for income,

property, or other resources in any way were regarded as

“unjust” or “unfair.” Nothing in the text of the provision or

its historical context suggests that, to avoid being a “poll or

head tax,” a particular method of taking into account the

ability to pay was required, however.

Plaintiff and amici argue that such a reading of

Article IX, section 1a, misses the significance of the state-

ment in support of the measure that appeared in the voters’

pamphlet. They argue that the statement makes clear that

the problem with poll taxation is that it is not “graduated” or

“proportional” to taxpayers’ ability to pay.

The argument is unavailing for at least two rea-

sons. First, we are generally reluctant to read too much into

a statement in the voters’ pamphlet, because of its political

nature. See Sagdal, 356 Or at 648 (“[W]e use the argu-

ments in the voters’ pamphlet with caution due to their

political nature * * *.”); see also Deras v. Myers, 327 Or

472, 482 n 2, 962 P2d 692 (1998) (Durham, J., dissenting)

(“[P]aid written arguments for and against a measure in

the voters’ pamphlet” may be partisan in nature “and, if so,

will shed little or no light on the voters’ intention.”). Such

reluctance seems especially appropriate when, as in this

case, the statement was prepared as part of an act of elec-

toral subterfuge.

Second, and in any event, the statement nowhere

asserted that taxation must be proportional. Rather, it

recited standard arguments in opposition to poll taxation,

namely, that poll taxation “bears so unequally” on taxpayers

in relation to their ability to pay. Taking into account ability

to pay does not necessarily require strictly proportional tax-

ation. Indeed, strictly proportional taxation, by definition,

requires application of the same percentage rate regard-

less of income, which necessarily would preclude any sort

of progressive taxation that varies the percentage rate of

taxation with ability to pay. Nothing in the text or history

Cite as 361 Or 854 (2017) 883

of Article IX, section 1a, remotely suggests that its fram-

ers or the people who voted for it intended that result. And,

in fact, at oral argument, plaintiff and amici conceded that

Article IX, section 1a, does not require proportional taxation.

D.  Application

Based on the foregoing analysis, we conclude that a

“poll or head tax” within the meaning of Article IX, section

1a, is one that applies uniformly on a per capita basis, but

does not take income, property, or resources into account in

any way. In this case, the city’s arts tax takes income and

household resources into account in at least three ways.

First, the arts tax does not apply to individuals

earning income of less than $1,000 per year.

Second, certain types of income do not count in

determining an individual’s income for the purpose of in

defining who is and who is not subject to the tax. For exam-

ple, Social Security benefits, federal pension benefits, and

state Public Employee Retirement System benefits are not

counted.

Third, the tax does not apply if an individual resides

in a household with resources lower than federal poverty

guidelines. Those federal poverty guidelines, in turn, are

graduated according to the size of the household. As a result,

the household income threshold below which the arts tax

will not be owed increases with the size of the household.

Plaintiff insists that, notwithstanding the income-

based exclusions, the city’s arts tax does not really take

income, property, or other resources into account in setting

the tax. In plaintiff’s view, to avoid being classified as a poll

or head tax, a tax must take income into account in assess-

ing the amount of the tax itself, not just in defining exclu-

sions from the tax. According to plaintiff, an exclusion pro-

vides for a tax of zero dollars, which is not an amount of tax

at all; it simply does not count in determining whether the

arts tax is a prohibited “poll or head tax.” Plaintiff agrees

that, if the city had adopted a two-tiered tax that required

persons below a set income to pay one penny and all oth-

ers $35, such a tax would not be a prohibited “poll or head

884 Wittemyer v. City of Portland

tax” within the meaning of Article IX, section 1a, because

a penny is an amount of tax. The city’s arts tax, he argues,

is different, because its two-tiered scheme requires persons

below the income threshold to pay nothing. As plaintiff puts

it, “0 is zero - nothing. $35 is the only amount of the Arts

Tax.”

The premise of that argument is that a tax of zero is

not an “amount” of tax. It is a flawed premise for at least two

reasons. First, it is contrary to the historical evidence that

we have cited above—evidence that suggests that, at least

by the early twentieth century, considering income, prop-

erty, or other resources in establishing exemptions made a

tax something other than a poll or head tax.

Second, and aside from that, plaintiff’s assumption

that zero is not an amount is plainly contrary to ordinary

usage. It is fairly common, for example, to refer to a deter-

mination that the amount of damages in a given case is

zero. See, e.g., Spearman v. Progressive Classic Ins. Co., 361

Or 584, 593, 396 P3d 885 (2017) (“At least in some cases,

that amount will be zero.”). More important, it is common

in the context of state and federal taxation to refer to tax

“amounts” to include zero. See, e.g., 20 CFR § 20.2056A-3

(“the minimum amount necessary to reduce the estate tax

to zero”); 20 CFR § 2010-2 (“reducing the gift tax liability to

zero”); 26 CFR § 52.4682-4 (“For the purposes of computing

the floor stocks tax * * * the tentative tax amount is zero.”);

26 CFR § 301.6211-1 (“the amount shown as the tax by the

taxpayer upon his return shall be considered as zero”); OAR

150-118-0080 (“ ‘[t]o achieve zero Oregon estate tax”); OAR

150-291-0300 (“[i]f a surplus credit reduces tax liability to

zero”).

As we have noted, plaintiff concedes that a two-

tiered tax based on income, property, or other resources

is not a prohibited poll or head tax. That is precisely the

nature of the city’s arts tax. We conclude that, based on the

text, historical context, and legislative history of Article IX,

section 1a, of the Oregon Constitution, the city’s arts tax is

not a prohibited “poll or head tax.”

The decision of the Court of Appeals and the limited

judgment of the circuit court are affirmed.