Buchanan v. Kirkpatrick

MORGAN, Judge,

dissenting.

I respectfully dissent because the challenged amendment to the Missouri Constitution (adopted by way of Proposition 5) is violative of and totally inconsistent with the “equal protection” clause of the United States Constitution in that it sets the stage for collecting taxes both from the rich and the poor but refunding excesses thereof only to the rich. Even a casual inquiry as to the constitutionality of such a procedure dictates that the flagrant discriminatory classification thus created cannot stand.

The issue was not considered by the majority opinion presumably because it was not presented by the parties, but that approach does not discharge our duty. Although judges of a state court, our oath of office requires that we uphold the United States Constitution. As said in Edwards v. Lesueur, 132 Mo. 410 , 33 S.W. 1130, 1133 (Mo. banc 1896): “The constitution is intended for observance by the judiciary, as well as other departments of government. The judges are sworn to support the constitution, and the provision for its amendment is as obligatory upon the courts as any other part of it.”

While it is true that this Court’s jurisdiction cannot be predicated upon the existence of a constitutional question not raised or preserved below, Kansas City v. Graybar Electric Co., 454 S.W.2d 23 (Mo.1970), Lang v. Callaway, 134 Mo. 491 , 35 S.W. 1138 (Mo.1896), it is equally true that when we already have original or appellate jurisdiction on other grounds, we may decide a constitutional question sua sponte. City of St. Louis v. Butler Co., 358 Mo. 1221 , 219 S.W.2d 372, 378-79 (Mo. banc 1949), and authorities cited therein.

On the question of the supremacy of the United States Constitution, we need quote only from the watershed case of McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405-06 , 4 L.Ed. 579 (1819):

In discussing these questions, the conflicting powers of the general and State governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might expect it would be this — that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it, by saying, ‘this constitution, and the laws of the United States, which shall be made in pursuance thereof,’ ‘shall be the supreme law of the land,’ and by requiring that the members of the State legislatures, and the officers of the executive and judicial departments of the States, shall take the oath of fidelity to it.

The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, ‘any thing in the constitution or laws of any State to the contrary notwithstanding.’

In Neal v. Delaware, 103 U.S. 370 , 26 L.Ed. 567 (1880), the Supreme Court examined a provision of the Constitution of the State of Delaware limiting the right to vote to white males only. Such provision was alleged to be violative of the fifteenth amendment to the Constitution of the United States. In sustaining this challenge, the Court said:

Beyond question, the adoption of the Fifteenth Amendment had the effect, in law, to remove from the State Constitu *27 tion, that provision which restricts the right of sufferage to the white race .... The presumption should be indulged, in the first instance, that the State recognizes, as is its plain duty, an amendment of the Federal Constitution, from the time of its adoption, as binding on all of its citizens and every department of its government, and to be enforced, within its limits without reference to any inconsistent provisions in its own Constitution or Statutes.

Id. at 389-90 , 26 L.Ed. 567 .

Consistent therewith, this Court has recognized that if a provision of the Constitution of the State of Missouri is in conflict with the United States Constitution, it is void. Household Finance Corp. v. Shaffner, 356 Mo. 808 , 203 S.W.2d 734 (Mo. banc 1947).

It is clear, therefore, that if Proposition 5 contravenes any part of the Constitution of the United States, it is utterly void, and this Court should so declare. A reading thereof reveals that the refund provision requires a pro rata refund of any excess state revenues. Section 18(b) says: “For any fiscal year in the event that total state revenues exceed the revenue limit established in this section by one percent or more, the excess revenues shall be refunded pro rata based on the liability reported on the Missouri state income tax (or its successor tax or taxes) annual returns filed following the close of such fiscal year. If the excess is less than one percent, this excess shall be transferred to the general revenue fund.” The difficulty is that the section only gives refunds to those who have incurred a personal income tax liability, this despite the fact that all state tax revenues, including real and personal property taxes, personal or corporate income taxes, gasoline taxes and sales and use taxes, are considered in determining whether the state has collected excess revenue. It is clear, then, that Proposition 5, on its face creates a classification based solely upon wealth. Only those who earned enough money to incur personal income tax liability are eligible for a refund; those who do not make that much money will never receive a refund, despite the fact that they may have paid an untold amount of sales, property, use or other taxes. Thus, the amendment blatantly discriminates against the poor in favor of the rich.

Classifications based upon financial condition or wealth are suspect. Bullock v. Carter, 405 U.S. 134 , 92 S.Ct. 849 , 31 L.Ed.2d 92 (1972); Tate v. Short, 401 U.S. 395 , 91 S.Ct. 668 , 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235 , 90 S.Ct. 2018 , 26 L.Ed.2d 586 (1970); McDonald v. Board of Election Commissioners’ of Chicago, 394 U.S. 802 , 89 S.Ct. 1404 , 22 L.Ed.2d 739 (1969); Harper v. Virginia State Board of Elections, 383 U.S. 663 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 (1965); Douglas v. California, 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956). The rule that statutes which create suspect classifications will be “strictly scrutinized” to determine whether they further a compelling state interest is so well established that citations are not necessary. It does not appear that any state interest that possibly might be served by Proposition 5 is justified by discriminating against a vast number of the citizens of this state. Some might argue that refunds will be given only to those who pay income taxes because those persons are easily identifiable, and it would be unduly burdensome to make refunds to all taxpayers, both large and small. But, is administrative convenience a reasonable justification for such blatant discrimination? I think not.

A situation substantially similar to the case at bar was presented in Reitman v. Mulkey, 387 U.S. 369 , 87 S.Ct. 1627 , 18 L.Ed.2d 830 (1967). During the period of 1959 to 1963, the California legislature passed statutes known as the Rumford and Unruh Acts which purported to make race discrimination in private real estate transactions unlawful. Thereafter, in 1964 the California electorate adopted Proposition 14 which amended the state constitution to prohibit any state agency from in any way limiting or controlling a land owner’s discretion in renting or selling his land to whomever he chose. Proposition 14 was *28 challenged in the state courts as being vio-lative of the Equal Protection Clause of the Fourteenth Amendment because it legalized private race discrimination. The California Supreme Court held that the amendment was indeed in conflict with the United States Constitution and struck it down. See: Mulkey v. Beitman, 64 Cal.2d 529 , 50 Cal.Rptr. 881 , 413 P.2d 825 (Cal.1966). The U.S. Supreme Court affirmed by holding that the mere authorization of race discrimination violated the fourteenth amendment.

In the instant case, the challenged amendment (Proposition 5) goes far beyond condoning or authorizing discrimination in violation of the “equal protection” clause of the United States Constitution. In fact, it affirmatively mandates that revenue personnel treat classes of Missouri citizenry differently; which is even more reprehensible because it takes from those sorely needing tax relief and gives to those who can afford not to receive a refund. The observation thus made is not a comment on the merits of the amendment, with which we are not to be concerned, but only to point up the glaring presence of an unconstitutional classification. Without being facetious, I would suggest that the scheme itself would have caused Robin Hood great consternation.