Opposition Brief — Dickinson v. Porter

Supreme Court brief1949

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rilteo COPY JUL 6 1949

CHARLES ELMORE CROP

SUPREME COURT OF THE unITED-STATES Cu

OCTOBER TERM, 1949

No. 174

LAURA DICKINSON,

Appellant,

vs.

C. FRED PORTER, Srare Comprro.ier or THE State oF

lowa, ET AL.

APPEAL FROM THE SUPREME COURT OF THE STATE OF IOWA

STATEMENT OPPOSING JURISDICTION AND

MOTION TO DISMISS OR AFFIRM

Rosert L. Larson,

Attorney General of lowa,

Vv Dow: Hisz,

First Assistant Attorney Gen-

eral of lowa,

Earw F. Wispom,

Special Assistant Attorney Gen-

eral of lowa,

Bert F. Wispom,

F. H. Becker,

County Attorney of Dubuque

County, Iowa,

Counsel for Appellees.

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INDEX

Sussect Inpex

Page

Statement opposing jurisdiction ............ 1-3

Motion to dismiss or affirm ....................... 75-76

TasLp or Cases CITED

Aero Transit Co v. Georgia Pub. Ser. Com., 295

U. S. 285, 79 L. Ed. 1439, 55 8. Ct. 709... ... 9, 19, 22, 59

Ahrweiler v. Board, 226 Iowa 229, 283 N. W. 889 57, 61, 62

A, Magnamo Co. v. Hamilton, 292 U. 8. 40, 78 L. Ed.

ee We ys Mss Fos Ko wh 4 ar onew Aaa obo th 56, 59

American Sugar Ref. Co. v. State of Louisiana, 179

U. 8. 89, 45 L. Ed. 102, 218. Ct.43.. ....... 8, 18, 21, 59

Apartment Operators’ Assn. v. City, 254 N. W. 443,

Be RS MY Cc oon kop WA neblawa moet 20, 37, 50, 52, 57

Asbury Hospital v. Cass County, 326 U. S. 207, 90 L.

ee en Ss is kp craduy ey vibAwe dee rre 57, 71

Bacon v. Walker, 204 U.S. 311, 254 U.S. 315... 45

Baker v. Town of West Hartford, 89 Conn. 394, 94

PS RS Pe ee ey cay rate Rae 37, 41

Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. 8. 232,

pe © & { Xs 5 eer 8, 10, 24, 25

Blume v. Crawford Co., 217 Iowa 545, 250 N. W. 733. 20, 33

Board of Supervisors v. Stewart, 30 Iowa 9, 1 Am.

BR EN 2s vac risen ven sse ns bos kerceeeeeies ant 57

Booth 7. State of Indiana, 237 U. 8S. 391, 59 L. Ed.

"SE" ae aie 37, 43

Boston v. Jackson, 260 U. S. 309, 67 L. Ed. 274, 43 8.

See ns orca ert gar ae ne cee 75

Brown-Forman Co. v. Kentucky, 217 U. S. 563, 54

eo Ee EE errr ea 9

Campbell v. Olmey, 262 U. 8. 352, 67 L. Ed. 1021, 43

TE ie hs 5 punk ad an ke ule Gaia R ere us 6

Carman v. Hickman County, 215 S. W. 408........ 34

Carmichael v. So. Coal & Coke Co., 301 U. 8. 495, 81

L, Ed. 1245, 57 S. Ct. 868... 9, 16, 19, 25, 37, 48, 56, 59, 69

—3702

ii INDEX

Carroll v. City of Cedar Falls, 221 lowa 277, 261

BR I ee errr re 57

Chicago, R. I. d P. Ry. Co. v. Devine, 239 U. 8. 52,

60 L. Ed. 140, 36 8. Ct. 27... 75

Citizens Tel. Co. v. Fuller, 229 U.S. 322, 57 L. Ed.

1206, 33 S. Ct. 833 9, 12

Clark v. Kansas City, 176 U. 8. 114, 44 L. Ed. 392, 20

S. Ct. 284...... 19, 27

Clear Lake Co-op. LSS. Assn. v. Weir, 200 lowa

1293, 206 N. W. 297.. 20, 34

Connolly v. Union Sewer Pipe Co., 184 U.S. 540... 26

Continental Baking Co. v. Woodring, 286 U. S. 352, 76

L. Ed. 1155, 52 S. Ct. 595. ....

Cook v. Marshall County, 196 U. 8S. 261, 49 L. Ed.

471, 25 S. Ct. 233... “ *

Corrigan v. Buckley, 271 U. S. 323, 70 L. Ed. 969, 46

S. 0% Gi ...... ; 6,7

Dickinson vy. Porter, 35 N. W. (2d) 66,

4, 23, 56, 57, 58, 59, 60, 61, 62, 63, 64

Everson v. Board of Education, 330 U. S. 1, 91 L. Ed.

711, 67 S. Ct. 504... 57,72

Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112,

41 L. Ed. 388, 17S. Ct.56... 56, 66

Farwell v. Brick Mfg. Co., 97 lowa 286, 66 N. W.

UT es 20, 33

Great Northern Railway Co. v. , Whitfield, 272 N. W.

787,658.D.173 ..... ...... 19, 22, 30, 50, 52

Green v. Frazier, 253 U. 8. 233, 64 L. Ed. 378, 50 S.

Ct. 499 . .... 56,68

Grout v. Kendall, 195 Iowa 467, 192 N. W. 529. _. 57,63

Hairston v. Danville & Western Ry. Co., 208 U. 8.

598, 52 L. Ed. 637, 28 S. Ct. 331... 56, 66

Heisler v. Thomas Colliery Co., 260 U. 8S. 245, 67 L.

§ 4 ) tS See . £3

Henderson Bridge Co. v. City of Henderson, 173 U.S.

592, 43 L. Ed. 823, 19 S. Ct. 553 19, 27, 37, 42

Hicklin v. Coney, 290 U. S. 169, 78 L. Ed. 247. ...... 19

Hill v. Rae, 158 Pac. 826,52 Mont. 378... eee

——— Snyder, 261 U. 8. 600, 67 L. Ed. 819, 43 S.

See 76

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INDEX jii

Page

Home Ins. Co. v. New York, 134 U. S. 594, 33 L. Ed.

1025, 10 S. Ct. 593 7 8,11

Jones v. City of Portland, 245 U. S. 217, 62 L. Ed.

Oe cin adibuc siusveceymeven tae rt 56, 67

King v. Mullins, 171 U. 8. 404 at 435, 436, 43 L. Ed.

314 at 226, 18 S. Ct. 925 at 987............. 37, 39

Lake Superior Consolidated lron Mines v. Lord, 271

U. 8. 577, 70 L. Ed. 1093, 46 8. Ct. 627... 19, 27

Lawrence v. State Tax Com. of Mississippi, 286 U.S.

276, 76 L. Ed. 1102, 52S. Ct.556..........- 9, 15, 19, 21

Leicht v. City of Burlington, 73 Iowa 29, 34 N. W.

Y htee entre EES , 32, 37, 40, 41

Liberty Warehouse Co. v. Burley Tobacco Growers’

Cooperative, 276 U. 8. 71, 72 L. Ed. 473, 48 8. Ct.

Loftus v. Department of Agriculture, 211 Iowa 566,

232 N. W., 412, 283 U. 8S. 809, 75 L. Ed. 1427, 51 8.

Byerly gees BA, Be eee

Louisville Gas & Electric Co. v. Coleman, 277 U. 8S.

32, 72 L. Ed. 770, 48 S. Ct. 423......... 37, 45, 46, 56, 57

Madden v. Commonwealth of Kentucky, 309 U. 8. 83,

82 L. Ed. 590,60 8. Ct.406.............. 9, 17, 35, 37, 48

Michigan Central R. Co. v. Powers, 201 U. 8. 245, 50

L. Ed. 744, 96 G. Ct. 450..........- eee ~

Milheim v. Moffat Tumnel Dist., 262 U. 8. 710, 67 L.

Wa. 1106, 48 B. Ct. OB4....... «eee cerns 56

Miller v. Childers, 107 Okla. 57, 238 Pac. 204 . _. §0,51

Metrepolitan Cas. Co. v. Brownell, 294 U. S. 580, 79

L. Ed. 1070, 56 &. Ct. S8B....................--.

Missouri v. Dockery, 191 U. S. 165, 48 L. Ed. 133, 24

Oe ee ae ou gk aatie 4 seek ed es

Missouri Pacific Ry. Co. v. Castle, 224 U. 8. 541, 56

L, Ba 676, 9B GB. Ct. OOS... ...-. eee eee eens. 75, 76

Myers v. Board of Education, 48 Oh. App. 43, 192

OS is Se Lea cis we dab eee nee toe 50, 54

New York Rapid Transit Corp. v. New York, 303

Ed. 1024, 58 8. Ct.721............ 9,17

=

Rn

on

~

¥

&

r

a

iv INDEX

Ohio Oil Co. v. Conway, 281 U. S. 146, 74 L. Ed. 775, ™—

508. Ct. 310... 9,14

Orient Ins. Co. v. Daggs, 172 U. 8. 557, 43 L. Ed.

552, 19 8. Ct. 281 8,11

Puget Sound Co. v. King County, 264 U. 8. 22, 68 L.

Ed. 541, 44 8. Ct. 261 9,14

Rapid Transit Corp. v. City of New York, 303 U. 8.

Pee eee 17

om, A v. County of Los Angeles, 262 U. S. 700, 67

Pred omy Ad v. ‘Kansas, 323 U. 8. 32, 89 L. Ed. 25,

1 4} ee 57,71

Southwestern Oil Co. v. Texas, 217 U. 8. 114, 54 L.

Ed. 688, 30 8. Ct. 496... i]

State v. Snyder, 29 Wyo. 199, 212 Pac. 771 57

Stebbins v. Riley, 268 U. 8S. 137, 69 L. Ed. 884, 45

S. Ct. 425, “ALR 1454

Strickley v. "Highland Boy Mining Co., 200 U. 8. 527,

50 L. Ed. 581, 26 8S. ct.4 301 56, 66

Sugarman v. United States, 249 U.S. 182, 63 L. Ed.

550, 39 S. Ct. 191 ....... 6,7

Thomas v. Gay, 169 U. 8. 264, 42 L. Ed. 740, 18 S. Ct.

EA Py a ae 19, 56

Tigner v. Texas, 310 U. 8. 141, 84 L. Ed. 1124, 60 S.

<a Rot 9, 19, 26

Toyota v. Ter. of Hawaii, 296 U. S. 184, 57 L. Ed.

180, 53 8. Ct. 47...... . 9, 37, 42

Union Lime Co. v. C. d N. W. Ry. Co., 233 U. 8. 211,

58 L. Ed. 924, 348. Ct.522............ 56

United States v. Johnson, 327 U. 8. 106, 90 L. Ed. 562,

66 8. Ct. 464 6

Viles v. lowa State Board of Assesement and Re-

view, 233 Iowa 604, 273 N. W. 338, 302 U. S. 637, 82

L. Ed. 496, 58 8. Ct. 38 6

Walls v. Midland Carbon Co. 254 U. S. 300, 65 L. Ed.

276, 41 8. Ct. 118....... 37, 45

Williams v. Mayor and City Council of Baltimore,

289 U. 8. 36, 77 L. Ed. 1015, 53S. Ct. 431... 9, 15, 56, 69

Zucht v. King, 260 U. S. 174, 67 L. Ed. 194, 43 S.

Ct. 24 6,7

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INDEX Vv

Statutes Crrep

Code of Iowa, 1946, Chapter 426, pages 1228, 1229,

as amended by Chapter 152, Laws of the 52nd Gen-

eral Assembly :

Section 161.2

Constitution of the United States, 14th Amendment,

: 2, 8, 10, 18, 36, 36, 38, 43, 71

Homestead Tax Credit Act, Chapter 325, Code of

Iowa, 1946 ........ Wexu thie es 4 61

Laws of the 17th General Assembly of Iowa, 1878,

Chapter 169 .......... ES ene ry 32

Military Service Tax Credit Fund (Ch. 231, Laws o

ER co ecg vane ius ape vine barmeseuyeoe’ 64

Rules of the Supreme Court of the United States:

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oo

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1949

—_—_—_----sr-

No. 174

LAURA DICKINSON,

Appellant,

vs.

C. FRED PORTER, State Comrrroi.er or THE STaTr oF

low, ET Al.

APPEAL FROM THE SUPREME COURT OF THE STATE OF IOWA

STATEMENT IN RESISTANCE TO JURISDICTION

Appellees hereby resist the jurisdiction of this Court and

as grounds therefor state:

_ (1) The Appellant has not stated substantial grounds

meriting review by this Court;

(2) It is the duty of this Court to decline jurisdiction

whenever it appears that the alleged Federal Constitutional

question is not substantial in character ;

(3) Questions of violation of State Constitution will not

be reviewed by this Court;

pm WO OR EE OR, REET BIT eters a

2

(4) The Fourteenth Amendment invoked by Appellant

permits classification, and the Courts will not interfere

with a legislative classification unless it is arbitrary, capri-

cious, hostile, palpably erroneous, and very wide of any

reasonable mark;

(5) The Fourteenth Amendment to the Federal Consti-

tution does not require an ironclad rule of equal taxation

by states, and this Court will not interfere unless the clas.

sification adopted by the state is arbitrary, capricious, hos-

tile, and palpably erroneous;

(6) In the matter of classification, the states have a wide

discretion; and in the field of taxation the states have a

broader power of classification than in other fields of legis.

lation;

(7) The Legislative Enactment challenged by Appellant

merely classifies agricultural land for different tax treat-

ment from other real estate for school purposes, and such

classification is not arbitrary, capricious, hostile and pal-

pably erroneous, and is not prohibited by the First Section

of the Fourteenth Amendment to the Federal Constitution;

(8) The classification of agricultural lands into tracts

of ten acres or more is not an arbitrary, hostile, nor capri-

cious classification, and is not prohibited by the First Section

of the Fourteenth Amendment to the Federal Constitution;

(9) The classification of school districts into those hav-

ing a millage rate of more or less than 15 mills is not arbi-

trary, hostile, nor capricious and is not prohibited by the

First Section of the Fourteenth Amendment to the Federal

Constitution;

(10) The Record in the instant case shows on its face

that the legislative enactment here under attack is based

upon clear constitutional power of the State Legislature,

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a —

3

and does not violate the First Section of the Fourteenth

Amendment to the Federal Constitution, as interpreted by

this Court; and

(11) This Court should deny the review sought by Appel-

lant.

ny

4

BRIEF IN SUPPORT OF RESISTANCE TO APPEL.

LANT’S STATEMENT OF JURISDICTION

Introduction

The legislative enactment, the constitutionality of which

is challenged herein by Appellant, is found in Chapter 426,

pages 1228, 1229, Code of Iowa, 1946, as amended by Chap-

ter 152, Laws of the 52nd General Assembly of Iowa. The

pertinent portions of said enactment are set forth cor.

rectly in paragraph ‘‘B’’ of Appellant’s ‘‘Statement As to

Jurisdiction’’ except that there should be added to Section

426.6 (P. 3 of Statement) the following enacted as a part of

Chapter 152, Section 13, Laws of 52nd General Assembly

of Iowa:

‘‘The owner may, within thirty days thereafter,

appeal to the board of supervisors of the county wherein

the land involved is situated by serving notice of said

appeal upon the chairman of said board. The board

shall hear such appeal promptly and shall determine

anew all questions involved in said appeal and shall

within ten (10) days after such hearing, mail to the

owner at his last known address, notice of its decision.

In the event of disallowance the owner may, within

ten (10) days from the date such notice is mailed,

appeal such disallowance by the board of supervisors

to the district court of that county by serving written

notice of appeal on the county auditor. The appeal

shall be tried de novo and may be heard in term time

or vacation. The decision of the district court thereon

shall be final.’’

Appellant’s challenge to the constitutionality of this leg-

islative enactment is based upon certain provisions of the

Constitution of Iowa. This challenge was denied by the

Supreme Court of Iowa in its opinion filed December 14,

1948, and reported in 35 N. W. (2d) 66. It is therefore ele-

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5

mentary that this Court will not review the opinion of the

State Court on state constitutional questions.

Appellant’s challenge to the constitutionality of the legis-

lative enactment under the Constitution of the United

States (and the only question pertinent to this appeal) is

that the classifications under the enactment are violative

of Section One of the Fourteenth Amendment to the Con-

stitution of the United States in that Appellant alleges and

argues that said classifications grant to certain citizens and

taxpayers rights and privileges not equally granted to all

citizens and taxpayers.

The classifications complained of are:

(1) Classification of agricultural lands used for agricul-

tural or horticultural purposes in a class separate and apart

from other real estate for ‘‘eredits’’ upon taxes for gen-

eral school purposes;

(2) The further classification of agricultural lands upon

the basis of tracts of ten acres or more in order to be en-

titled to the credits; and

(3) The limitation of said agricultural lands to school

districts wherein the levy for general school (operational) j

purposes exceeds fifteen mills, and the application of the

moneys (credits) appropriated from the state treasury :

to those school districts wherein the said levy exceeds fifteen y

mills.

It is to be noted that the appropriation is made, and the

funds paid, to the school district wherein the ‘‘credits’’ are

effected and the actual operation amounts to legislative de-

termination that a ‘‘ceiling”’ of fifteen mills is placed upon

‘agricultural lands’’ as defined in the legislative enact-

ment, and the appropriation from the state treasiry merely

re-imburses the school district for the revenue lost by reason

of such ceiling.

——

6

I

Proposition

It is the duty of this Court to decline jurisdiction unless

the Federal constitutional question is substantial in charac.

ter.

AUTHORITIES

Sugarman v. United States of America, 249 U. 8. 199

at 185, 63 L. Ed. 550 at 551, 39 S. Ct. 191 at 192;

Zucht v. King, 260 U. S. 174 at 176, 177, 67° L. Ed. 194

at 198, 43 S. Ct. 24 at 25;

Campbell v. Olney, 262 U. S. 352, 67 L. Ed. 1021, 43

S. Ct. 559;

Corrigan et al v. Buckley, 271 U. S. 323 at 329, 70 L,

Ed. 969 at 972, 46 S. Ct. 521 at 523;

Loftus v. Department of Agriculture, 211 Iowa 566,

232 N. W. 412;

(Dismissed on appeal for want of a substantial Fed-

eral question), 283 U. S. 809, 75 L. Ed. 1427, 51 §.

Ct. 647;

Vilas v. Iowa State Board of Assessment and Review,

223 Iowa 604, 273 N. W. 338;

(Dismissed on appeal for want of a substantial Fed-

eral question), 302 U. S. 637, 82 L. Ed. 496, 58 §.

Ct. 38;

United States v. Johnson, 327 U. S. 106 at 113, 90 L.

Ed. 562 at 566, 66 S. Ct. 464 at 467;

Missouri v. Dockery, 191 U. S. 165 at 170, 171, 48 L.

Ed. 133 at 134, 24 S. Ct. 53 at 54.

Application of Cases Cited

The rule is elementary that a substantial Federal con-

stitutional question must be raised to justify review by

this Court.

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7

In Sugarman v. United States, supra, (249 U.S. at 184)

this Court stated the rule as follows:

‘‘But mere reference to a provision of the Federal

Constitution, or the mere assertion of a claim under it,

does not authorize this court to review a criminal pro-

ceeding ; and it is our duty to decline jurisdiction unless

the writ of error presents a constitutional question

substantial in character and properly raised below.”’

This rule was applied by this Court in Zucht v. King,

supra, wherein this Court (260 U. S. at 176) said:

‘‘But, although the validity of a law was formally

drawn in question, it is our duty to decline jurisdiction

whenever it appears that the constitutional question

presented is not, and was not at the time of granting

the writ, substantial in character. Sugarman v. United

States, 249 U. S. 182, 184.”’

See also Corrigan v. Buckley, supra, wherein this Court

(271 U. S. at 329) stated the rule as follows:

‘The mere assertion that the case is one involving

the construction or application of the Constitution, and

in which the construction of federal laws is drawa in

question, does not, however, authorize this Court to

entertain the appeal; and it is our duty to decline

jurisdiction if the record does not present such a con-

stitutional or statutory question substantial in char-

acter and properly raised below. Sugarman v. United

States, 249 U. S. 182, 184; Zucht v. King, 260 U. S.

174, 176.”’

The Appellant states no substantial Federal question in

her ‘‘Statement as to Jurisdiction.’’ In Paragraph ‘‘G,”’

page 10 thereof she merely asserts that the legislative en-

actment constitutes arbitrary classification, appropriates

state funds for a private purpose, and is unconstitutional

in the amount, manner, and method by which the exemption

or tax credit and the allocation of the funds to the school

be BR ent

+

district is determined under the statute; that the legisla.

tive enactment appropriates five million dollars annually

to pay the tax credits provided therein; that the money

so appropriated is raised by general statewide taxation;

and that every taxpayer in Iowa, as well as Appellant herein

has a vital interest in the matter.

This is a ‘‘mere assertion that the case is one involving

the * * * application of the Constitution’ and ** does

not authorize this Court to entertain the appeal’’ in this

case, nor justify this Court in so doing. Sugarman v. U. S.,

249 U.S. at 184; Zucht v. King, 260 U. S. at 176.

II

Proposition

The Fourteenth Amendment permits classification, and

does not prescribe any ironclad rule of equality in taxation,

and the Courts will not interfere unless the legislative

classification is arbitrary, capricious, hostile, palpably er-

roneous, and very wide of any reasonable mark

8

AUTHORITIES

Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. 8. 232 at

237, 33 L. Ed 892 at 895, 10 S. Ct. 533;

Home Ins. Co. v. New York, 134 U. 8. 594 at 606, 33

L. Ed. 1025 at 1032, 10 S. Ct 593 at 597 ; :

Orient Ins. Co. v. Daggs, 172 U. 8. 557 at 562, 43 L. Ed.

552 at 554, 19 8. Ct. 281 at 282;

American Sugar Ref. Co. v. State of Louisiana, 179

U. S. 89 at 92, 94, 95, 45 L. Ed. 102 at 104, 105, 21

S. Ct. 43 at 45, 46;

Michigan Central R. Co. v. Powers, 201 U. S. 245 at

293 and 302, 50 L. Ed. 744 at 761 and 765, 26 S, Ct.

459 at 462 and 466;

Southwestern Oil Co. v. Texas, 217 U. 8. 114 at 123, 54

L. Ed. 688 at 692, 693, 30 S. Ct. 496 at 499;

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9

Brown-Forman Co. v. Kentucky, 217 U. S. 563 at 572,

54 L. Ed. 883 at 886, 887, 30 S. Ct. 578 at 579, 580;

Toyota v. Ter. of Hawaii, 226 U. S. 184 at 191, 192,

57 L. Ed. 180 at 184; 53 S. Ct. 47 at 48;

Citizens Tel. Co. v. Fuller, 229 U. 8. 322 at 329, 332,

57 L. Ed. 1206 at 1213, 1214, 33 8, Ct. 833 at 835, 836;

Heisler v. Thomas Colliery Co., 260 U. 8. 245 at 255,

67 L. Ed. 237 at 241, 25 S. Ct. 83 at 84, 85;

Puget Sound Co. v. King County, 264 U. S. 22 at 27, 28,

68 L. Ed. 541 at 546, 44 S. Ct. 261 at 263;

Stebbins v. Riley, 268 U. S. 137 at 142, 143, 69 L. Ed.

884 at 888, 889, 45 S. Ct. 424 at 426, 44 A. L. R. 1454

at 1459, 1460;

Ohio Oil Co. v. Conway, 281 U. S. 146 at 159, 160, 74

L. Ed. 775 at 782, 50 S. Ct. 310 at 314;

Lawrence v. State Tax Com. of Mississippi, 286 U. 8.

276 at 284, 76 L. Ed. 1102 at 1108, 52 S. Ct. 556 at 559;

Williams v. Mayor and City Council of Baltimore, 289

U. S. 36 at 42 and 46, 77 L. Ed. 1015 at 1022 and 1024,

53 S. Ct. 431 at 433 and 434, 435;

Metropolitan Casualty Co. of New Y ork v. Brownell,

294 U. 8. 580 at 584, 79 L. Ed. 1070 at 1073, 55 S. Ct.

538 at 539, 540;

Aero Transit Co. v. Georgia Pub. Service Com., 295

U. S. 285 at 290, 293, 79 L. Ed. 1439 at 1444, 1445,

55 8. Ct. 709 at 711, 712;

Carmichael v. So. Coal & Coke Co., 301 U. S. 495 at ‘

509, 510, 81 L. Ed. 1245 at 1253, 57 S. Ct. 868 at 872;

New York Rapid Transit Corp. v. New York, 303 U. 8.

573 at 578, 579, 82 L. Ed. 1024 at 1030, 58 S. Ct. 721

at 724, 725;

Madden v. Commonwealth of Kentucky, 309 U. 8. 83 at

87, 90, 82 L. Ed. 590 at 593, 60 S. Ct. 406 at 408;

Tigner v. Texas, 310 U. 8. 141 at 145, 146, 84 L. Ed.

1124 at 1127, 60 S. Ct. 879 at 881.

The ‘‘parent’’ cases, among more recent authorities oy

the proposition that the Fourteenth Amendment permits

classification, do not preseribe any ironclad rule of taxa.

tion, and that a classification determined upon by a legis-

lature will not be disturbed by the Courts unless it is clearly

arbitrary, capricious, hostile, and palpably erroneous are

Bell’s Gap R. R. Co. v. Pennsylvania, supra, and Home

Ins. Co. v. New York, supra.

In Bell’s Gap R. R. Co. v. Pennsylvania, this Court, 134

U. S. at 237, stated the rule as follows:

‘‘The provision in the Fourteenth Amendment, that

no State shall deny to any person within its jurisdie-

tion the equal protection of the laws, was not intended

to prevent a State from adjusting its system of taxation

in all proper and reasonable ways. It may, if it

chooses, exempt certain classes of property from any

taxation at all, such as churches, libraries and the

property of charitable institutions. It may impose dif-

ferent specific taxes upon different trades and pro-

fessions, and may vary the rates of excise upon various

products ; it may tax real estate and personal property

in a different manner; it may tax visible property only,

and not tax securities for payment of money; it may

allow deductions for indebtedness, or not allow them.

All such regulations, and those of like character, so

long as they proceed within reasonable limits and gen-

eral usage, are within the discretion of the state leg-

islature, or the people of the State in framing their

Constitution. But clear and hostile discriminations

against particular persons and classes, especially such

as are of an unusual character, unknown to the practice

of our governments, might be obnoxious to the consti-

tutional prohibition. It would, however, be impracti-

cable and unwise to attempt to lay down any general

rule or definition on the subject, that would include

all cases. They must be decided as they arise. We

10

Application of Cases Cited

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11

think that we are safe in saying, that the Fourteenth

Amendment was not intended to compel the State to

adopt an iron rule of equal taxation. If that were its

proper construction, it would not only supersede all

those constitutional provisions and laws of some of

the States, whose object is to secure equality of taxa-

tion, and which are usually accompanied with quali-

fications deemed material ; but it would render nugatory

those discriminations which the best interests of society

require; which are necessary for the encouragement

of needed and useful industries, and the discourage-

ment of intemperance and vice; and which every State,

in one form or another, deems it expedient to adopt.’’

(Italics supplied)

And in Home Ins. Co. v. New York, 134 U. S. at 606, this

Court said:

‘But the amendment does not prevent the classifica-

tion of property for taxation—subjecting one kiad of

property to one rate of taxation, and another kind of

property to different rate—distinguishing between

franchises, licenses and privileges, and visible and

tangible property, and between real and personal

property. Nor does the amendment prohibit special :

legislation. Indeed, the greater part of all legislation

is special, either in the extent to which it operates, or

the objects sought to be obtained by it.”’

In Orient Ins. Co. v. Daggs, 172 U.S. at 562, this Court,

with reference to classification under the Fourteenth

Amendment said: ;

‘It is not necessary to state the reasoning upon

which classification by legislation is based or justified.

This court has had many occasions to do so, and only

lately reviewed the subject in Magoun v. Illinois Trust

and Savings Bank, 170 U. 8S. 283. We said in that

case that ‘the State may distinguish, select and classify

objects of legislation, and necessarily the power must

have a wide range of discretion.’ And this because of

FF

the function of legislation and the purposes to which

it is addressed. Classification for such purposes is not

invalid because not depending on scientific or marked

differences in things or persons or in their relations,

It suffices if it is practical, and is not reviewable unless

paipably arbitrary.’’ (Italics supplied)

In Citizens Tel. Co, v. Fuller, 229 U. 8. at 329, 331, this

Court said:

12

‘‘The power of exemption would seem to imply the

power of discrimination, and in taxation, as in other

matters of legislation, classification is within the com-

petency of the legislature. We said in American Sugar

Refining Co. v. Louisiana, 179 U. 8S. 89, 92, that from

time out of mind it has been the policy of this Govern-

ment to classify for the purpose of taxation, and a

discrimination was supported between taxation of pro-

ducers and manufacturers of products; and yet in

Billings v. Illinois, 188 U. 8S. 97, 102, we compared the

rule with that in Connolly v. Union Sewer Pipe Co.,

184 U. S. 540, where a distinction between buyers of

products and the producers of them was held an illegal

discrimination.

It may, therefore, be said that in taxation there is a

broader power of classification than in some other

exercises of legislation. * * *

To these cases may be added others. They illustrate

the power of the legislature of the State over the sub-

jects of taxation and the range of discrimination

which may be exercised in classifying those subjects

when not obviously exercised in a spirit of prejudice

and favoritism. Cook v. Marshall County, 196 U. S.

261, 274; Missouri v. Dockery, 191 U. S. 165. The cases

decided subsequent to the decision in Bell’s Gap Rail-

road Vo. v. Pennsylvania, have applied its principle to

many varying instances. Granting the power of classi-

fication, we must grant Government the right to select

the differences upon which the classification shall be

based, and they need not be great or conspicuous.

Keeney v. New York, 222 U. S. 525, 536. The State is

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13

not bound by any rigid equality. This is the rule ;—its

limitation is that it must not be exercised in ‘clear and

hostile discriminations between particular persons and

classes.’ See 223 U. S. 59, 62, 63. Thus defined and

thus limited, it is a vital principle, giving to the Gov-

ernment freedom to meet its exigencies, not binding

its action by rigid formulas but apportioning its bur-

dens and permitting it to make those ‘discriminations

which the best interests of society require.’ ”’

In Heisler v. Thomas Colliery Co., 260 U. S. at 255, this

Court stated the rule as follows:

‘In its exercise in taxation, we have said, it is com-

petent for a State to exempt certain kinds of property

and tax others, the restraints upon it only being against

‘clear and hostile discriminations against particular

persons and classes.’ Discriminations merely are not

inhibited, for, it was recognized, that there are ‘dis-

criminations which the best interests of society re-

quire.’ Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. 8.

232, 237.

The principle of that case, and its concession to the

power of a State, has received expression and illustra-

tion in cases which concerned the exercise of the power

in the classification of objects for taxing purposes. In

Watson v. State Comptroller, 254 U. S. 122, 124, it is

said, ‘Any classification is permissible which has a rea-

sonable relation to some permitted end of governmental

action. . . . It is enough, for instance, if the classi- ;

fication is reasonably founded in ‘the purposes and ;

policy of taxation.’ In other cases it is said that facts ;

which can be reasonably conceived of as having existed

when the law was enacted will be assumed to justify it.

Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78; {

Crescent Cotton Oil Co. v. Mississippi, 257 U. S. 129,

137. And ‘it makes no difference that the facts may be

disputed or their effect opposed by argument and

opinion of serious strength. It is not within the com- :

petency of the courts to arbitrate in such contrariety.’ ’’

Wr

To this point, and to the question of violation of the pro-

visions of the state constitution, this Court in Puget Sound

Co, v. King County, 264 U. 8. at 27, 28, said:

‘*We are considering this case only from the stand.

point of the Fourteenth Amendment to the Federal

Constitution. The objections based on the state con.

stitution of Washington have been settled adversely

and conclusively for us by the decision herein of the

State Supreme Court. Counsel cite us cases which

have little relation to the federal question before us,

Johnson v. Wells Fargo & Co., 239 U. S. 234; Ewert v.

Taylor, 38 8. D. 124; State ex rel. Owen v. Donald, 161

Wise. 188, and like cases involved the application of

somewhat stringent provisions of state constitutions ag

to equality of taxation on all kinds of property which

left but little room for classification. Such restrictions

have much embarrassed state legislatures because

actual equality of taxation is unattainable. The theo-

retical operation of a tax is often very different from

its practical incidence, due to the weakness of human

nature and anxiety to escape tax burdens. This justi-

fies the legislature, where the Constitution does not

forbid, in adopting variant provisions as to the rate,

the assessment and the collection for different kinds of

property. The reports of this Court are full of cases

which demonstrate that the Fourteenth Amendment

was not intended, and is not to be construed, as hav-

ing any such object as these stiff and unyielding re-

quirements of equality in state constitutions. No bet-

ter statement of the unvarying attitude of this Court on

this subject can be found than in the often quoted lan-

guage of Mr. Justice Bradley in speaking for the Court

in Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. S. 232,

237.”’

14

See also Ohio Oil Co. v. Conway, 281 U. S. at 159 wherein

this Court said:

‘*The States have a wide discretion in the imposition

of taxes. When dealing with their proper domestic

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15

concerns, and not trenching upon the prerogatives of

the national government or violating the guarantees of

the Federal Constitution, the States have the attribute

of sovereign powers in devising their fiscal systems to

insure revenue and foster their local interests. The

States, in the exercise of their taxing power, as with

respect to the exertion of other powers, are subject to

the requirements of the due process and the equal pro-

tection clauses of the Fourteenth Amendment, but that

Amendment imposes no iron rule of equality, prohibit-

ing the flexibility and variety that are appropriate to

schemes of taxation. The State may tax real and per-

sonal property in a different manner. It may grant

exemptions. The State is not limited to ad valorem

taxation. It may impose different specific taxes upon

different trades and professions and may vary the

rates of excise upon various products. In levying such

taxes, the State is not required to resort to close dis-

tinctions or to maintain a precise, scientific uniformity

with reference to composition, use or value. To hold

otherwise would be to subject the essential taxing

power of the State to an intolerable supervision, hos-

tile to the basic principles of our Government and

wholly beyond the protection which the general clause

of the Fourteenth Amendment was intended to assure.’’

(Italics supplied.)

In Lawrence v. State Tax Com., 286 U. S. at 284, it is said

that tax burdens ‘‘which are based upon discriminations

not shown to be arbitrary or capricious, do not fall within

constitutional prohibitions.’”’ :

Williams v. Mayor and City Council of Baltimore, 289 4

U. S. 36, sustained an exemption from taxation of a single :

railroad. This Court (289 U. S. at 46) said: ;

‘Time with its tides brings new conditions which

must be cared for by new laws. Sometimes the new

conditions affect the members of a class. If so, the

correcting statute must apply to all alike. Sometimes

the new conditions affect one only or a few. If so the

16

correcting statute may be as narrow as the mischief.

The Constitution does not prohibit special laws inflex.

ibly and always. It permits them when there are spe.

cial evils with which existing general laws are incom.

petent to cope. The special public purpose will then

sustain the special form. Baltimore v. United Rail.

ways Co., supra. The problem in last analysis is one

of legislative policy, with a wide margin of discretion

conceded to the lawmakers. Only in cases of plain

abuse will there be revision by the courts.’’

In Carmichael v. Southern Coal & Coke Co., 301 U. S. at

508, 510, this Court stated the rule as follows:

‘*Taxes, which are but the means of distributing the

burden of the cost of government, are commonly levied

on property or its use * * *. It is inherent in the

exercise of the power to tax that a state be free to select

the subjects of taxation and to grant exemptions.

Neither due process nor equal protection imposes upon

a state any rigid rule of equality of taxation. See

Bell’s Gap R. Co. v. Pennsylvania, 134 U. 8. 232, 237;

Lawrence v. State Tax Comm’n, 286 U. S. 276, 284,

This Court has repeatedly held that inequalities which

result from a singling out of one particular class for

taxation or exemption, infringe no constitutional limi-

tation. Magoun v. Illinois Trust d Savings Bank, 170

U. S. 283, 293; Amerircan Sugar Refining Co. v. Louisi-

ana, 179 U. S. 89, 94; Armour Packing Co. v. Lacy,

200 U. S. 226, 235; Brown-Forman Co. v. Kentucky, 217

U. S. 563, 573; Quong Wing v. Kirkendall, 223 U. S. 59,

62, 63; Armour & Co. v. Virginia, 246 U. 8. 1, 6; Alaska

Fish Co. v. Smith, 255 U. 8. 44, 48; State Board of Tax

Comm’rs v. Jackson, 283 U. S. 527, 537; Broad River

Power Co. v. Query, 288 U.S. 178, 180; Fox v. Standard

Ou Co., 294 U. 8. 87, 97; Cincinnati Soap Co. v. United

States, ante, p. 308; Great Atlantic d Pacific Tea Co. v.

Grosjean, ante, p. 142.

Like considerations govern exemptions from the op-

eration of a tax imposed on the members of a class. A

legislature is not bound to tax every member of a class

a

DLEED THROU GH-—POOR COPY

17

or none. It may make distinctions of degree having a

rational basis, and when subjected to judicial scrutiny

they must be presumed to rest on that basis if there is

any conceivable state of facts which would support it.

Rast v. Van Deman & Lewis Co., 240 U. S. 342, 357;

Heisler v. Thomas Colliery Co., 260 U. 8. 245, 255;

Swiss Oil Corp. v. Shanks, 273 U. 8. 407, 413; Lawrence

r. State Tax Comm’n, supra; ef. Metropolitan Casualty

Insurance Co. v. Brownell, 294 U. 8. 580, 584.

This restriction upon the judicial function, in pass-

ing on the constitutionality of statutes, is not artificial

or irrational. A state legislature, in the enactment of

laws, has the widest possible lattitude within the limits

of the Constitution. In the nature of the case it cannot

record a complete catalogue of the considerations which

move its members to enact laws. In the absence of such

a record courts cannot assume that its action is capri-

cious, or that, with its informed acquaintance with local

conditions to which the legislation is to be applied, it

was not aware of facts which afford reasonable basis

for its action. Only by faithful adherence to this guid-

ing principle of judicial review of legislation is it pos-

sible to preserve to the legislative branch its rightful

independence and its ability to function.’’

See also Rapid Transit Corp. v. City of New York, 303

U.S. at 578; and Madden v. Kentucky, 309 U. S. 83, wherein

this Court at pp. 87, 88, said:

“The broad discretion as to classification possessed

by a legislature in the field of taxation has long been

recognized. This Court fifty years ago concluded that

‘the Fourteenth Amendment was not intended to com-

pel the State to adopt an iron rule of equal taxation,’

and the passage of time has only served to underscore

the wisdom of that recognition of the large area of

discretion which is needed by a legislature in formu-

lating sound tax policies. Traditionally classification

has been a device for fitting tax programs to local needs

and usages in order to achieve an equitable distribution

of the tax burden. It has, because of this, been pointed

=

out that in taxation, even more than in other fields,

legislatures possess the greatest freedom in classijica-

tion. Since the members of a legislature necessarily

enjoy a familiarity with local conditions which this

Court cannot have, the presumption of constitution.

ality can be overcome only by the most explicit demon.

stration that a classification is a hostile and oppressive

discrimination against particular persons and classes,

The burden is on the one attacking the legislative ar.

rangement to negative every conceivable basis which

might support it.’’

18

From the foregoing cases, and hundreds more which

might be cited, it is apparent that the Fourteenth Amend.

ment permits classification for tax purposes; that it does

not prohibit a state from adjusting its tax burdens upon

any basis deemed fair and equitable by the legislature

thereof; that the Amendment does not prescribe any iron-

clad rule of tax equality, but permits discriminations; and

that the Courts will not interfere with a legislative classifi-

cation unless it is clearly arbitrary, capricious, hostile, and

palpably erroneous.

Ill

Proposition

A legislative classification of agricultural or horticultural

lands or producers in a class and according them partial tax

exemption or tax credits is a reasonable exercise of legisla-

tive discretion and within the legislative power, and is not

clearly arbitrary, capricious, hostile or palpably erroneous;

and is therefore not in violation of Section 1 of the Four-

teenth Amendment to the Constitution of the United States.

AUTHORITIES

American Sugar Refining Co. v. Louisiana, 179 U. 8. 89

at 92, 94, 95, 45 L. Ed. 102 at 104, 105, 21S. Ct. 43 at

45, 46;

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>"

19

Lawrence v. State Tax Commission of Miss., 286 U. Ss.

296 at 280, 281, 76 L. Ed. 1102 at 1106, 52 S. Ct. 556

at 557;

Continental Baking Co. v. Woodring, 286 U.S. 352 at

372, 76 L. Ed. 1155 at 1167, 52 S. Ct. 595 at 602;

Hicklin v. Coney, 290 U. S. 169 at 176, 78 L. Ed. 247 at

952, 54S. Ct, 142 at 145;

Aero Transit Co. v. Georgia Pub. Serv. Com., 295 U.S.

285 at 291, 7% L. Ed. 1439 at 1444, 1445, 55 S. Ct. 709

at 711, 712;

Carmichael v. So. Coal € Coke Co., 301 U. 8. 495 at 512,

@1 L. Bad. 1245 at 1255, 57 8. Ct. 868 at 873, 874;

Tigner v. Texas, 310 U. S. 141 at 145, 147, 84 L. Ed.

1124 at 1127, 1128, 60 S. Ct. 879 at 881;

Nashville, C. € St. L. Ry. v. Browning, 310 U. 8. 362 at

368, 369, 60 S, Ct. 968 at 972, 84 L. Ed. 1254 at 1257,

1258;

Lake Superior Consolidated Iron Mines v. Lord, 271

U. 8. 577 at 582, 70 L. Ed. 1093 at 1101, 46 S. Ct. 627

at 629;

Cook v. Marshall County, 196 U. S. 261 at 274, 49 L. Ed.

471 at 476, 25S. Ct. 233 at 237;

Liberty Warehouse Co. v. Burley Tobacco Grower's

Cooperative, 276 U.S. 71 at 89, 90 and 96, 72 L. Ed.

473 at 480 and 483, 48 S. Ct. 291 at 294 and 297 ;

Clark v. Kansas City, 176 U.S. 114 at 117, 119, and 120, ‘

44 L. Ed. 392 at 397, 20S. Ct. 284 at 286 ; :

Thomas v. Gay, 169 U. S. 264 at 978 and 280, 281, 42

L. Ed. 740 at 746, 747, 18 S. Ct. 340 at 345, 346;

Henderson Bridge Co. v. City of Henderson, 173 U. 8.

592 at 603, 615, and 620, 621, 43 L. Ed, 823 at 827 and

832, 833, 19 S. Ct. 553 at 557, and 562, 564;

Great Northern Ry. Co. v. Whitfield, 272 N. W. 787 at

792, 794, 65 S. D. 173;

i

Hill v, Rae, 158 Pac. 826 at 828, 829, 52 Montana 378;

Apartment Operators’ Ass'n v. City, 254 N. W. 443 at

444, 445, 191 Minn. 365;

Leicht v. City of Burlington, 73 Iowa 29 at 30, 32, 34,

N. W. 494;

Farwell v. Brick Mfg. Co., 97 lowa 286 at 294, 66 N. W.

176;

Clear Lake Co-op L. 8. S. Ass’n v. Weir, 200 Iowa 1293

at 1298, 206 N. W. 297 at 299;

Blume v. Crawford Co., 217 Iowa 545 at 550, 551, 250

N. W. 733 at 735.

Application of Cases Cited

The Supreme Court of Iowa held, in the instant case, that

the legislative enactment was enacted in aid of agriculture,

and that the classification of ‘‘agricultural lands’’ as ‘‘ajl

tracts of land of ten acres or more, and not laid off into lots

of less than ten acres or divided by streets and alleys into

parcels of less than ten acres lying within any school cor-

poration in this state and in good faith used for agricultural

or horticultural purpeses. Any land laid off or platted into

lots of less than ten acres belonging to and a part of other

lands of more than ten acres and in good faith used for

agricultural or horticultural purposes shall be entitled to the

benefit: of this chapter’’ (Italics supplied.) See Par. B,

Appellant’s Statement as to Jurisdiction (Section 426.2,

Code of Iowa), at page 2) was not in violation of Section 1, |

Fourteenth Amendment to the Constitution of the United |

States.

This question has been determined by this Court so many

times that it no longer presents a substantial Federal ques-

tion.

The opinion of the Supreme Court of Iowa (Filed Decem-

ber 14, 1948, and reported in 35 N. W. (2d) 66 and appended

DLEED THROU GH=—POOR COPY

21

to Appellant’s Statement as to Jurisdiction as Appendix

«@”’) that this classification for the purposes of taxation,

rtial tax exemption, or tax ‘‘eredits’’? was amply sup-

ported by opinions of this Court, the Supreme Court of

Iowa, and the Courts of highest jurisdiction of many states

of the United States.

Time will not permit treatment of all such cases. Refer-

ence to all cases hereinbefore cited is respectfully requested.

In American Sugar Ref. Co. v. Lowisiana, 179 U.S. 89 at

95, this Court sustained a classification of sugar refiners for

the purpose of taxation into those who refined the products

of their own plantations, and those who engaged in a general

refining business, and at the cited page said:

“The discrimination is obviously intended as an en-

couragement to agriculture, and does not deny to per-

sons and corporations engaged in a general refining

business the equal protection of the laws.’’ (Italics

supplied)

This last cited case has been cited and followed many

times by this Court and by the Courts of highest jurisdiction

in the States of the United States.

It is true that the tax there involved was a license tax, but

this is immaterial. This Court, in Lawrence v. State Tar

Com., 286 U. S. 276 at 280, said:

“The present tax has been defined by the Supreme

Court of Mississippi as an excise and not a property

tax, Hattiesburg Grocery Co. v. Robertson, 126 Miss.

34; 88 So. 4; Knox v. Gulf, M.& N. R.Co., 138 Miss. 70;

104 So. 689, but in passing on its cons(iiutionality we

are concerned only with its practi“. operation, not its

definition or the precise for.s of descriptive words

which may be applied ‘ it. See Educational Films

Corp. v. Ward, 282 U. 8. 379, 387; Pacific Co. v. John-

son, 285 U. 8. 480; Shaffer v. Carter, supra, pp. 54-55.”’

This Court sustained as reasonable and not arbitrary the

exemption of farmers as & class from a license fee required

22

of other carriers. In Acro Mayflower Transit Co. v. Geor.

gia Pub. Service Com., 295 U.S. 285 at 290, 291, this Court

said:

‘*The court took notice of a common opinion, ‘well

justified by the facts,’ that the farm lands of the state

had been ‘accustomed to bear an undue proportion of

the taxes.’ The effect of the exception would be to

equalize the burden. ‘Every one knows that as a gen-

eral rule a tax of this kind finally reaches the consumer

of the product, or user of the service; and hence an

exemption of carriers of such products is to be taken

as an exemption of the products themselves, and not

of the carrier.’’ The enumeration of rational bases of

distinction was not put forward as exhaustive. The

court expressed the belief that others could be added.

We think a classification thus designed to ameliorate

the lot of the producers of farm and dairy products is

not an arbitrary preference within the meaning and

the condemnation of the Fourteenth Amendment, The

plight of the Georgia farmer has been pictured by the

state court in words already quoted. To free him of

fresh burdens might seem to a wise statecraft to be a

means whereby to foster agriculture and promote the

common good."’

The Supreme Court of South Dakota in Great Northern

Ry. Co. v. Whitfield, 65 S. D. 173, 254 N. W. 787 likewise

took judicial notice of the fact that lands used exclusively

for agricultural purposes receive less benefits from school

taxes than other lands. In the cited case, the Court, 272

N. W. at 792, 793, said:

‘*We believe it true also that the Legislature could

reasonably conclude that the benefit to agricultural land

from school taxes is less than the benefit to other lands

from the same source. See Clark v. Kansas City, 176

U.S. 114, 20 S. Ct. 284, 44 L. Ed. 392, which held valid

a statute which excepted from its operation lands used

exclusively for agricultural purposes if owned by indi-

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23

viduals, but not if owned by corporations. It is con-

ceivable that the benefits from education so far as real

estate is concerned, whether it be the enhanced value

of that real estate due to adequate educational facilities

offered or some other benefit, reflects itself less in real

estate used exclusively for agricultural purposes than

any other land, For example, a merchant’s business

or even a railroad’s business, which is dependent some-

what upon real estate in the operaticn of the business,

might be quite differently affected by an adequate edu-

cational system located in the community, than the

business of agriculture. So far as concerns real estate,

which is set apart primarily for homes or residences

by being platted, obviously educational advantages

reflect themselves in that real estate differently from

the manner in which they reflect themselves in land used

exclusively for agriculture.”’

The Supreme Court of Iowa in the instant case, 35 N. W.

9d 66 at 73 said:

‘Tt is true of course there are common characteristics

between agricultural land and other realty in the mat-

ter of taxation for school purposes. But we cannot say

there are not characteristics which differentiate it from

other realty in relation to school taxes. We are not con-

vineed the legislature could not with reason conclude

that agricultural land derives less benefit, in enhanced

value or otherwise, from the money raised by school

taxes than other real estate. City or town residence

property or real estate used for business purposes may

well be affected by our school system in quite a differ-

ent way than land used for agricultural purposes which

consists of comparatively large tracts. The legislature

could reasonably have concluded that agricultural lands

are taxed excessively for school purposes as compared

with property devoted to other uses and that such taxes

should be equalized in accordance with benefits re-

ceived. * * °

Leicht v. City of Burlington, 1887, 73 Iowa 29, 31, 34

N. W. 494, 495, upheld as uniform in the constitutional

ae

ad

EPAPER SET PCE RE TENS PONG SW

RS rae ey

7

sense chapter 47, Acts 16th General Assembly (as

amended section 616, Code, 1897, section 404.4, Code,

1946), which completely exempted from taxation for

any municipal purpose, except road tax, lands within

the extended limits of a city or town containing more

than ten acres, occupied and used for agricultural pur-

poses. The opinion states ‘the design of the legislature

evidently was to exempt property which is used es.

sentially for agricultural purposes.’

The language just quoted is repeated in Farwell y.

Des Moines Brick Mfg. Co., 97 Iowa 286, 294, 295, 66

N. W. 176, 35 L. R. A. 63, apparently as stating the effect

of the decision in Leicht v. Burlington, supra. 1 Cooley,

4th Ed., Section 284, page 599, says that in Iowa an

exemption from city taxation of agricultural or un-

platted land in a city has been upheld, citing the Leicht

case.’’

24

See Appellant’s Statement as to Jurisdiction, Appendix

*C’’, p. 8, 9.

Furthermore, this fact was substantiated by proof. Ex-

hibit ‘‘B’’ (certified to this Court) shows that the ratio

of taxable farm property per child to taxable non-farm

property per child in Iowa in 1941 in the 99 counties in

Iowa was from 1.85 to 1 in Dubuque County to 8.97 in Mills

County. Exhibit ‘‘C’’ shows the ratio in 97 consolids’sd

schools of Iowa was from .97 to 1 in the Cotter District 0

62.80 to 1 in the Sommers District. Exhibit ‘‘D’’ shows

that the ratio of taxable farm property to non-farm prop-

erty in 99 city or town independent districts was from 1.17

to 1 in Ridgeway District to 68.37 to 1 in Jewell District.

In other words the farm or agricultural property paid

from 1.17 to 68.37 times as much school taxes per child

as did the non-farm property. To say that the legislature

could not under the Fourteenth Amendment equalize this

school tax burden ‘‘ would render nugatory those discrimina-

tions which the best interests of society require; which are

necessary for the encouragement of needed and useful in-

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_ ——

25

dustries.”” Bell’s Gap. R. R. Co. v. Pennsylvania, 134 U.S.

at 237.

This Court, in Carmichael v. Southern Coal é Coke Co.,

301 U. S. at 512, said:

‘‘Reasons for the selections, if desired, readily sug-

gest themselves. Where the public interest is served

one business may be left untaxed and another taxed, in

order to promote the one, American Sugar Refining Co.

». Louisiana, supra; Heisler v. Thomas Colliery Co.,

supra; Aero Transit Co. v. Georgia Public Service

Comm’n, supra; or to restrict or suppress the other,

Magnano Co. v. Hanailton, 992 U. 8. 40; Fox v. Standard

Oil Co., supra; Quong Wing v. Kirkendall, supra; Singer

Sewing Machine Co. v. Brickell, 233 U. S. 304; Alaska

Fish Co. v. Smith, supra, 48: Great Atlantic & Pacific

Tea Co. v. Grosjean, supra. The legislature may with-

hold the burden of the tax in order to foster what it con-

ceives to be a beneficent enterprise. This Court has

often sustained exemption for the encouragement of

agriculture, American Sugar Refining Co. v. Louisiana,

supra, 95; Aero Transit Co. v. Georgia Public Service

Comm’n, supra, 291. Similarly, the legislature is free

to aid a depressed industry such as shipping. The

exemption of business operating for less than twenty

weeks in the year may rest upon similar reasons, or

upon the desire to encourage seasonal or unstable in-

dustries.’’ (Italics supplied.)

That property may be classified for tax purposes, taxing

one class and exempting another, without violating the

equal protection of the Fourteenth Amendment, is settled

beyond peradventure of doubt by this Court in Nashwille

C. & St. L. Ry. v. Browning, 310 U. S. 362, wherein at p.

368 it is said:

“This Court had previously had occasion to advert to

the narrow and sometimes cramping provision of these

state uniformity clauses, and has left no doubt that their

inflexible restrictions upon the taxing powers of the

state were not to be insinuated into that meritorious

_

conception of equality which alone the Equal Protection

Clause was designed to assure. See Puget Sound Co,

v. King County, 264 U. S. 22, 27.

That the states may classify property for taxation;

may set up different modes of assessment, valuation

and collection; may tax some kinds of property at

higher rates than others; and in making all these dif.

ferentiations may treat railroads and other utilities

with that separateness which their distinctive char.

acteristics and functions in society make appropriate—

these are among the common-places of taxation and of

constitutional law.’’ * * * Since, so far as the Fed.

eral Constitution is concerned, a state can put railroad

property into one pigeonhole and other property into

another, the only question relevant for us is whether

the state has done so. If the discrimination of which the

Railway complains had been formally written into the

statutes of Tennessee, challenge to its constitutionality

would be frivolous. If the state supreme court had

construed the requirement of uniformity in the Tennes-

see Constitution so as to permit recognition of these

diversities, no appeal could successfully be made to the

Fourteenth Amendment.”’ (Italics supplied.)

26

Referring to Connolly v. Union Sewer Pipe Co., 184 U. 8.

540, this Court, in Cook v. Marshall County, 196 U. 8. at

274 said:

‘Tt can scarcely be doubted that, if the Connolly case

had dealt with the subject of taxation, a discriminative

tax upon producers of agricultural products, either

greater or less than that imposed upon other manv-

facturers or producers, might have been held valid with-

out denying to either party the equal protection of the

laws.’’

Also referring to Connolly’s case, this Court in Tigner v. |

Texas, 310 U.S, at 145, 146, said:

‘Since Connolly’s case was decided, nearly forty

years ago, an impressive legislative movement bears

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27

witness to general acceptance of the view that the dif-

ferences between agriculture and industry call for

differentiation in the formulation of public policy. The

states as well as the United States have sanctioned

cooperative action by farmers; have restricted their

amenability to the anti-trust laws; have relieved their

organizations from taxation.”’

See also Lake Superior Con. Iron Mines v. Lord, 271 U.S.

577, wherein a classification of ‘‘ore’’ lands was sustained.

Liberty Warehouse Co. v. Burley Tobacco Grower's Co-

operative Marketing Ass’n., 276 U.S. at 96 ‘‘recognized as

permissible some discrimination intended to encourage

agriculture”’ citing American Sugar Refining Co. v. Louisi-

ana, 179 U. 8. 89, 95.

In Clark v. Kansas City, 176 U. S. 114, this Court sus-

tained a tax statute which excepted ‘‘from its operation

lands used for agricultural purposes if owned by individ-

uals.’’ The Court, p. 120, said:

‘In the case at bar the distinction is between tracts

of agricultural lands in a certain relation to cities and

lands used for other purposes in such relation.

We think the distinction is justified by the principle

of the cases we have cited. That principle leaves to the

State the adaptation of its laws to its conditions.”’

In Henderson Bridge Co. v. City of Henderson, 173 U. 8.

592, this Court sustained an attack upon the city charter

which exempted tracts of land of ten acres devoted to farm-

ing purposes. At p. 620, 621, this Court said:

“The assignments of error embrace the contention

that the judgment below denies to the Bridge Company

the equal protection of the laws, ‘in that its property

has been subjected to taxation from which all other land

not divided into lots has been exempted, although the

only reason for exemption apply with much greater

force to the property of the plaintiff in error than to

the property which enjoys the exemption.’

4

This contention is based upon the proviso in the city’s

charter declaring that ‘no land embraced within the

city limits, and outside of ten-acre lots as originally

laid off, shall be assessed and taxed by the city council,

unless the same is divided or laid out into lots of five

acres or less, and unless all of same is actually used

and devoted to farming purposes.’ Kentucky Acts

1887-88, Vol. 2, p. 991.

We are of opinion that this proviso has no reference

to bridges, their approaches, piers, etc., but refers only

to lands capable of being cultivated or used and divided

into lots upon which buildings may be erected or over

which streets or other highways may be constructed,

This is the better interpretation of both the old and

the new charter of the city. Besides, the construction

placed by the state court upon the charter of the city in

respect of its power to tax the bridge property neces.

sarily leads to the conclusion that the provision forbid.

ding the taxation of lands not divided into lots of five

acres or less does not apply to a bridge erected over the

Ohio River within the city’s limits. In this view there

is no basis for the suggestion of a denial of the equal

protection of the laws,’ * * °,

28

The Courts of highest jurisdiction in numerous states of

the United States have followed the foregoing cited cases

decided by this Court.

In Hill v. Rae, 52 Montana 578, 158 Pac. 826 at 828, 829,

the Supreme Court of Montana said:

‘That classification is permissible, because in the

essential nature of things and in any due appreciation

of equality in the operation of the law it is necessary in

legislation for purposes of revenue, or in the applica-

tion of the police power strictly so-called, or in legisla-

tion designed to increase the industries of the state,

develop its resources, or add to its wealth and prosper-

ity, is abundantly settled by judicial decision as well as

by the course of legislation. To cover the entire field

of this subject is impossible within any reasonable

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29

limits. Suffice it to say that by the Supreme Court of

the United States, construing this very amendment,

classifications have been sustained based upon differ-

ences in the amount of legacies, differences ‘petween

corporations, differences between land dependent on its

us for agricultural and other purposes, differences be-

tween fire insurance and other insurance, differences in

the character of work, differences between hiring per-

sons to labor in the state and hiring persons to labor

out of the state, differences between sugar refineries

based entirely on whether the sugar refined was pur-

chased or produced by the refiner, as well as various

other differences too numerous to mention. Magoun v.

Illinois T. & S. Bank, 170 U. S. 283, 18 Sup. Ct. 594,

42 L. Ed. 1037; Clark v. Kansas City, 176 U.S. 114, 20

Sup. Ct. 284, 44 L. Ed. 392; Gundling v. Chieago, 177

U S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725; Petit v. Minne-

sota, 177 U. S. 164, 20 Sup. Ct. 666, 44 L. Ed. 716; Wil-

liams v. Fears, 179 U. S. 270, 21 Sup. Ct. 128, 45 L. Ed.

186, American Sugar Refining Co. v. Louisiana, 179

U. 8. 89, 21 Sup. Ct. 43, 45 L. Ed. 102; and cases cited

in these decisions. * * °’’

‘In Clark v. Kansas City, supra, a state statute was

under consideration which authorized certain cities to

annex lands adjoining the city limits, but provided that

‘nothing in this act shall be taken or held for agricul-

tural purposes when the same is not owned by any rail-

road or other corporation,’ and the court upheld the

distinction, declaring that it was justified by the prin-

ciple of the cases cited above :

:

‘That principle leaves to the state the adaptation of

its laws to its conditions. The growth of cities is in-

evitable, and in providing for their expansion it may

be the judgment of an agricultural state that they

should find a limit in the lands actually used for

agriculture.’ )

‘In American Sugar Refining Co. v. Louisiana, supra,

a state statute imposing a license tax upon persons

and corporations carrying on the business of refining

7

sugar and molasses, but exempting from its operation

‘planters and farmers grinding and refining their own

sugar and molasses,’ was sustained with the remark

that:

30

‘The discrimination is obviously intended as an en.

couragement to agriculture, and does not deny to

persons and corporations engaged in a general refin.

ing business the equal protection of the laws.’

‘So, too, legislative activity having for its avowed

purpose the encouragement of this or that particular

industry deemed of importance to the state has been

prolific of results.’’ (Italics supplied)

The Supreme Court of South Dakota, in Great Northern

Ry. Co. v. Whitfield, 65 S. D. 173, 254 N. W. 787 likewise took

judicial notice of the fact that lands used exclusively for

agricultural purposes receive less benefits from school taxes

than other land, sustained a classification of agricultural

lands for tax purposes, and cited numerous eases from this

Court construing the Fourteenth Amendment to the Fed-

eral constitution.

In the cited case, the Court, 272 N. W. at 792, 793, said:

‘“‘We believe it true also that the Legislature could

reasonably conclude that the benefit to agricultural land

from school taxes is less than the benefit to other lands

from the same source. See Clark v. Kansas City, 176

U.S. 114, 20 S. Ct. 284, 44 L. Ed. 392, which held valid a

statute which excepted from its operation lands used

exclusively for agricultural purposes if owned by in-

dividuals, but not of owned by corporations. I? is con-

cewvable that the benefits from education so far as real

estate is concerned, whether it be the enhanced value of

that real estate due to adquate educational facilities

offered or some other benefit, reflects itself less in real

estate used exclusively for agricultural purposes than

any other land. For example, a merchant’s business or

even a railroad’s business, which is dependent some-

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31

what upon real estate in the operation of the business,

might be quite differently affected by an adequate edu-

cational system located in the community, than the

business of agriculture. So far as concerns real estate,

which is set apart primarily for homes or residenced

by being platted, obviously educational advantages re-

flect themselves in that real estate differently from the

manner in which they reflect themselves in land used

exclusively for agriculture. Land used exclusively for

agriculture consists of a comparatively large tract

which is the whole base of the business. This is not true

of land used in other businesses. It seems to us that

repeatedly courts have sustained classifications founded

upon reasons much more obscure than those here pre-

sented.

We believe it reasonable for a Legislature, in an agri-

cultural state, to offer inducements to agriculture

through its tax laws. Southwestern Oil Co. v. Texas,

217 U. S. 114, 30 S. Ct. 496, 54 L. Ed. 688; American

Sugar Refining Company v. Louisiana, 179 U. S. 89,

21 S. Ct. 43, 45 L. Ed. 102; Bell’s Gap Railroad Co. v.

Pennsylvania, supra.

In all probability other considerations occurred to

the Legislature in making the distinction, but the pos-

sible considerations herein pointed out are sufficient in

our opinion to prevent us from holding that there could

be no possible rational basis for the legislative classi-

fication. This opinion is further confirmed by a reading

of the case of Heisler v. Thomas Colliery Co., 260 U. S.

245, 43 S. Ct. 83, 67 L. Ed. 237, wherein it was held that

the differences between bituminous coal and anthracite ,

forms a just basis for their different classification under

the tax laws, and the case of State Tax Board of Com’rs

v. Jackson, 283 U. S. 527, 51 S. Ct. 540, 75 L. Ed. 1248,

73 A. L. R. 1464, wherein it was held that the differences

between chain store operation and the conduct of a

single store was a sufficient basis for legislative classi-

fication for taxation.’’ (Italics supplied)

< EPC VN

The State of Iowa has, for more than 70 years, had a

statute which exempted lands used for agricultural pur-

I

poses (in tracts of ten acres or more) from municipal taxes,

except for library purposes and at not to exceed one and

one-fourth (14%) mills for road purposes. Section 404.4,

Code of Iowa, 1946, provides as follows:

‘*404.4 Agricultural lands. No land included within

the limits of any city or town which shall not have

been laid off into lots of ten acres or less, or which

shall not subsequently be divided into parcels of ten

acres or less by the extension of streets and alleys,

and which shall also in good faith be occupied and used

for agricultural or horticultural purposes, shall be

taxable for any city or town purpose, except that said

lands and all personal property necessary to the use

and cultivation of said agricultural or horticultural

lands shall be liable to taxation for city and town road

purposes, at not exceeding one and one-fourth mills;

and for library purposes.”’

This statute was first enacted as Chapter 47, Laws of

the 16th General Assembly of Iowa in 1876. It then pro-

vided for its application to tracts of land of twenty acres

or more used for agricultural purposes. This statute was

amended by Chapter 169, Laws of the 17th General Assem-

bly of Iowa in 1878 to reduce the size of the tracts to ten

acres.

This statute was attached in Leicht v. City of Burlington,

73 Iowa 29, 34 N. W. 494 upon the grounds that the classi-

fication was purely arbitrary, discriminatory, and capri-

cious, and denied the plaintiff of the equal protection of

the laws.

The Supreme Court of Iowa, in 73 Iowa at 31, 34 N. W.

at 495, said:

‘It is urged by the plaintiffs, to be sure, that the

distinction which the legislature has attempted to make

between lots containing more than 10 acres, and those

containing 10 acres or less, is purely arbitrary, and that

for this reason tke act cannot be said to have a uniform

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33

operation, as it might if the larger lots as provided

could be said to constitute a class, as distinguished

from the smaller lots. As to this we think it may be

said that the design of the legislature evidently was

to exempt property which is used essentially for agri-

cultural purposes. Where the limits of a city are ex-

tended so as to take in what is used essentially as a

farm, there is much reason for exempting it from city

fares. But where the property is substantially resi-

dence property, as distinguished from agricultural,

and valuable only as such whether improved or not,

there is less reason, when it becomes city property,

that it should be exempt from city taxes.’’ (Italics

supplied)

In Farwell v. Brick Mfg. Co., 97 Iowa 286 at 294, 295; 66

N. W. 176 at 179, in commenting on Leicht v. City of Burl-

ington, supra, said:

“Tn Leicht v. City of Burlington, 73 Iowa, 29 (34 N. W.

Rep. 494), in which was involved the constitutionality

of the act of the Sixteenth General Assembly, it was

said that ‘the design of the legislature evidently was

to exempt property which is used essentially for agri-

cultural purposes.’ ”’

In Blume v. Crawford County, 217 Iowa 545 at 550, 551;

250 N. W. 733 at 735, 736, the Supreme Court of lowa sus-

tained a declaration of public policy of the legislature of

Iowa to aid agriculture against attack on the grounds of

unconstitutionality. At the cited page, 217 Iowa at 550, 551,

950 N. W. 735, 736, the Court said:

‘So in the case at bar the legislature in chapter 138

of the Code has declared the public policy of this

state, with reference to extending aid to agriculture,

the great basic industry of this state. There is no

inhibition against this power in any of the provisions

of the Constitution, and it is not repugnant to any con-

stitutional provision. The legislature, under the pow-

ers vested in it by the state, has extended aid to farm

ee eee

7

associations for the purpose of aiding agriculture,

horticulture, animal industry, and similar kindred oe.

cupations. The unconstitutionality of this act is raised

at a time when the national government, and all state

governments, are bending every effort to aid agricul-

ture in their present distressed condition. The de-

fendant farm bureau was not organized for private

purposes. On the contrary, it is an enterprise engaged

in furthering the welfare and benefit of agriculture,

the great basic industry of this state, and for the benefit

of the public generally. The act in question is a valid

exercise of the state’s governmental functions, and

does not delegate the taxing power of the state to a

nonofficial body. The lower court held this legislation

constitutional, and we find no error therein.’’

34

To the same effect, see Carman v. Hickman County, 215

S. W. (Ky.) 408.

The Supreme Court of Iowa has held that classifications

based upon agriculture are natural, and obvious, and not

arbitrary, unreasonable and discriminatory. In Clear Lake

Co-Op L. € S. Ass'n v. Weir, 200 Iowa 1293 at 1298, 1299;

206 N. W. 297 at 299, the Supreme Court of Iowa said:

‘Agriculture, of which stock-raising is a part, is a

basic industry in this state, as well as in a large part

of the nation, north and south. A much larger pro-

portion of the people of this state are engaged in agri-

culture than in any other industry or business. There

is no industry to be found anywhere in which classifica-

tions based thereon are more natural, obvious, and

exclusive than in agriculture. It is as distinct in its

character as mining, manufacturing, banking, or any

other branch or division into which society is economi-

cally divided.’’ (Italics supplied)

Numerous classifications of agricultural products for tax

purposes appear in the laws of Iowa, some dating back

as far as 1851. Examples are exemption from taxation of

agricultural produce harvested by or for the person as-

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35

sessed within one year of assessment, all wool shorn from

his sheep within said time, swine under nine months of

age, all other domestic animals under one year of age, and

all farming utensils of any person who makes a living by

farming. Other classifications in said laws exempt family

equipment, tools of mechanics, books of lawyers, all up

to $300 in value, and the team, wagon and harness of

teamsters, and capital stock of electric utilities, and manu-

facturing, and mercantile corporations. See Section 427.1,

Code of Iowa, 1946.

Classifications for exemptions or different tax treatment

are therefore within the ‘‘ purposes and policy of taxation’’

inIowa. ‘‘Traditionally classification has been a device for

fitting tax programs to local needs and usages in order to

achieve an equitable distribution of the tax burden.”’

Madden v. Kentucky, 309 U. S. 83 at 87, 88.

These authorities clearly support such tax exemptions.

The statute here under consideration may properly be held

as Appellees contend as placing a ceiling upon the tax

levied upon agricultural land, as defined in the law, and

an appropriation to the school district to reimburse it for

the revenue lost. The State of Iowa through its legislature

long ago placed a ceiling upon such land within cities and

towns and made no such appropriation. In no event is

Appellant’s tax on her land raised. It would be if the

ceiling were placed on the agricultural land, as defined by

the legislative enactment, and the funds not appropriated

to reimburse the school district for the revenue lost.

In so far as the Fourteenth Amendment is concerned, the

language of this Court in Missouri v. Dockery, 191 U. 8.

165, 48 L. Ed. 133, 24 S. Ct. 53 is applicable. In the last

cited case, in 191 U.S. at 170, 171, this Court said:

‘‘However this may be, the petitioner admitted at

the argument that his own tax was correct, and that he

would have had no case under the Fourteenth Amend-

ae

BR kt

7

ment if the companies had been exempted altogether.

Magoun v. Illinois Trust & Savings Bank, 170 U. g,

283, 293-295; Connolly v. Union Sewer Pipe Co., 184

U. 8S. 540, 562. But his rights under that amendment

turn on the power of the State, no matter by what

organ it acts. Virginia v. Rives, 100 U. S. 313, 318,

Therefore, if the Supreme Court of the State cop.

strued the statutes as exempting express companies

from this tax and substituting another, as it is argued

on behalf of the defendants in error that the statutes

do, the petitioner cannot complain here. For the legis.

lature could exempt them, and the question whether it

has done so or not is for the state courts to decide

in their construction of its acts. Furthermore, if the

State could grant a total exemption it could grant a

partial exemption, and if it has done so, de facto,

through its officers, the petitioner cannot come here on

an allegation that the officers acted as they did without

the authority of the State. That again is for the state

court to decide. The petitioner has no case under the

Constitution of the United States, and nothing else

is open.’’

Certainly, the Appellant in the case at bar has not raised

any substantial Federal question under Section One of

the Fourteenth Amendment to the Constitution of the

United States, and this Court should decline jurisdiction

to review the opinion and decision of the Supreme Court

of Iowa.

IV

Proposition

The classification of agricultural lands at ten acres in

size in order that the tax credit may apply is not arbitrary,

hostile, capricious, or unreasonable, and does not violate

Section 1, of the Fourteenth Amendment to the Constitu-

tion of the United States.

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37

AUTHORITIES

King v. Mullins, 171 U. S. 404 at 435, 436, 43 L. Ed.

214 at 226, 18 S. Ct. 925 at 937 ;

Leicht v. City of Burlington, 73 lowa 29, 34 N. W. 494;

Henderson Bridge Co. v. City of Henderson, 173 U.S.

592 at 620, 621, 43 L. Ed. 823 at 833, 19 S. Ct. 553 at

564 ;

Toyota Vv. Hawaii, 226 U. 8. 184 at 191, 192. 57 L. Ed.

180 at 184, 53 S. Ct. 47 at 48;

Booth v. State of Indiana, 937 U. S. 391 at 397, 398,

59 L. Ed. 1011 at 1017, 35 S. Ct. 617 at 619, 620;

Northwestern Laundry V. City of Des Moines, 239 U.S.

426 at 495, 60 L. Ed. 396 at 402, 36 S. Ct. 206 at 210;

Walls v. Midland Carbon Co., 254 U. 8. 300 at 314, 315,

65 L. Ed. 276 at 282, 283, 41 S. Ct. 118 at 121;

Louisville Gas € Electric Co. v. Coleman, 277 U. S. 32

at 41, 72 L. Ed. 770 at 775, 48 S. Ct. 423 at 426;

Carmichael v. Southern Coal € Coke Co., 301 U. 8. 495

at 510, 511, 81 L. Ed. 1245 at 1254, 57 S. Ct. 868 at 873;

Madden v. Kentucky, 309 U. S. 83 at 88, 84 L. Ed. 590

at 593, 60 S, Ct. 406 at 408 ;

Apartment Operator’s Ass’n. v. City of Minneapolis,

191 Minn. 365 at 370, 954 N.W. 443 at 449;

Baker v. Town of West Hartford, 89 Conn. 394, 94

Atl. 283 at 285.

Application of Cited Cases

Appellant complains that the classification of ‘‘agricul-

tural lands’’ at 10 acres or more for the purposes of the

legislative enactment constitutes an arbitrary and unrea-

sonable classification and grants to certain citizens and tax-

payers rights and privileges not equally granted to all citi-

zens and taxpayers. (See Appellant’s Assignment of Er-

rors, p. 2.)

7

Specifically, Appellant’s complaint is that, since she owns

4.13 acres of land devoted exclusively to agricultural pur.

poses, and does not fall within the benefited class, whereas

land in tracts of 10 acres or more devoted to the same uses

fall within the benefited class, the classification at 10 acres

or more renders the legislative enactment in violation of

Section One, Fourteenth Amendment to the Federal Cop.

stitution as an arbitrary and unreasonable discrimination

against her.

That size may be taken into consideration or become the

basis of classification is settled beyond doubt by the adjudi-

cated cases, both in this Court, and in Courts of highest

jurisdiction of the states of the United States.

Illustrations in state statutes are too numerous to men-

tion more than a few.

In Iowa, it has been the policy of the state to base

tax laws as well as others upon size or number. Many

statutes apply only to cities of a certain population, and the

classification is not objectionable if any city reaching that

population comes within the terms of the Act.

Homesteads in Iowa are classified at one-half (1%) acre

within corporate limits and forty (40) acres without such

limits with a limitation of $2500 in value for tax ‘‘credits”’

purposes. In Minnesota, homesteads are classified for par-

tial tax exemption purposes at eighty (80) acres in un-

platted lands within corporate limits or without corporate

limits, and in cities or towns of less than 5000 population

at one-half (14) acre, and in cities of more than 5000 popula-

tion at one-third (1) acre with an assessment of twenty

(20% ) percent of actual value provided that if the valuation

of the homestead is in excess of $4000, the excess is assessed

at 3314 per cent of actual value.

In Nebraska a homestead is limited to $2000 in value, and

may consist of up to 160 acres outside corporate limits and

not over 2 lots within corporate limits. In Kansas, the

38

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39

homestead may consist of 160 acres of farm land, or 1 acre

within corporate limits.

In Iowa, forest reservations of not less than 2 acres, of

continuous area, and fruit tree reservations of not less

than 1 acre nor more than 10 acres are assessed at #4 per

acre. The fruit tree reservation is assessed ut this amount

for a period of 8 years after planting. See Section 161.2,

Code of Iowa, 1946 and Section 441.5, same Code. These

statutes date back to 1906. Other states in forest areas

have similar laws.

For this Court to enter the field of determining the ‘‘size’’

or ‘‘acreage’’ of tracts of land would constitute an invasion

of the power of the legislature to classify property for taxa-

tion, This the Court will not do.

In King v. Mullins, supra, this Court sustained a classi-

fication of lands at 1000 acres against the attack that the

classification was arbitrary, capricious and unreasonable.

This Court in the cited case, 171 U. 8. at 435, 436 said:

‘Another point made by the plaintiff in error is,

that the provision of the constitution of Virginia ex-

empting tracts of less than one thousand acres from

forfeiture is 4 discrimination against the owners of

tracts containing one thousand acres or more, which

amounts to a denial to citizens or landowners of the

latter class of the equal protection of the laws. We do

not concur in this view. The evil intended to be reme-

died by the constitution and laws of West Virginia was

the persistent failure of those who owned or claimed

to own large tracts of lands, patented in the last cen-

tury, or early in the present century, to put them on

the land books, so that the extent and boundaries of

such tracts could be easily ascertained by the officers

charged with the duty of assessing and collecting taxes.

Where the tract was 4 small one, the probability was

that it was actually occupied by some one, and its .

extent or boundary could be readily ascertained for pur-

poses of assessment and taxation. We can well under-

——

stand why one policy could be properly adopted as to

large tracts which the necessities of the public revenue

did not require to be prescribed as to small tracts, The

judiciary should be very reluctant to interfere with

the taxing systems of a State, and should never do go

unless that which the State attempts to do is in palpable

violation of the constitutional rights of the owners of

property. Under this view of our duty, we are unwil.

ling to hold that the provision referred to is repugnant

to the clause of the Fourteenth Amendment forbidding

a denial of the equal protection of the laws.’’

This specific classification was sustained by the Supreme

Court of Iowa in 73 Iowa 29, 34 N. W. 494. The legislative

enactment challenged in the case at bar, in so far as the

classification in tracts of 10 acres or more, was modeled after

Section 404.4, Code of Iowa, 1946 hereinbefore quoted. This

latter statute and classification was attacked on the grounds

that this specific classification is purely arbitrary. The

Supreme Court of Iowa, 73 Iowa at 30, 31; 34 N. W. at 494,

495, said:

‘It is said that, in exempting lots of over 10 acres in

size, and not exempting those of less size, of like charac-

ter and situation, the act in question does not have a

uniform operation, and that certain citizens are allowed

privileges and immunities which do not belong to all.

But this act was not made to apply to specific property,

nor to specific persons. It was made to apply to a cer-

tain class of property, and to the owners of such prop-

erty, whoever they might be. It is true that privileges

and immunities cannot be granted to a class of citizens.

But those who happen to be owners of a certain class

of property do not themselves become a class in any

proper sense. They do not sustain a relation to each

other, but a mere property relation. They are affected

by the statute in consequence merely of the circum-

stances in which they happen to be. It was said in Iowa

Railroad Land Co. vy. Soper, 39 Iowa, 112: ‘If the law

operates upon every person within the relations and

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41

circumstances provided for, it is sufficient.’ The prin-

ciple involved appears to us to be not unlike what has

peen frequently decided. McAunich v. Miss. & M. R’y

Co., 20 lowa 338; U. 8. Express Co. v. Ellyson, 28 Id.,

370; State v. Shroeder, 51 Id. 197.

It is urged by the plaintiffs, to be sure, that the dis-

tinction which the legislature has attempted to make

between lots containing more than 10 acres, and those

containing 10 acres or less, is purely arbitrary, and that

for this reason the act cannot be said to have a uniform

operation, as it might if the larger lots as provided

could be said to constitute a class, a8 distinguished from

the smaller lots.”’ (Italies supplied.)

The Court answered this contention in the following iang-

uage at 73 Towa at 31, 32 N. W. at 495 where the Supreme

Court of Towa said:

“The legislature seems to have thought that large

lots bought within the city, and used for agricultural

rposes do constitute a class, as distinguished from

small lots, though agricultural products be grown upon

them to some extent; and we think that it cannot be

denied that the thought is correct. Proceeding mam-

festly upon this thought, it fixed the limit between what

might be considered as belonging to one class and what

to the other. This was necessary as a practical guide

to the assessor. It is of no use to consider the imper-

fection of the division. Absolute justice in taxation is

wnattainable.’’ (Italics supplied)

The statutes of Connecticut exempt from taxation for a

period of 20 years forest reservations of one acre oF more

planted to trees specified in the statute. This statute was

attacked upon the grounds that it ‘‘provides a special

privilege’ to the owner of the tract. The Supreme Court

of Connecticut sustained the classification. See Baker v.

Town of West Hartford, 89 Conn. 394; 94 Atl. 283.

en ee ee

_ a

The case of Leicht v. Burlington, supra, has been cited

repeatedly by the Courts of highest jurisdiction of the

several states,

In Henderson Bridge Co. v. City of Henderson, 173 U. §,

592 this Court sustained an attack upon the city charter

which exempted tracts of land of ten acres devoted to farm.

ing purposes.

This case is quoted at length on pp. 27, 28 of this Brief

and will not be repeated here.

This Court also sustained a licensing statute enacted by

the Territorial Legislature of Hawaii which classified the

District of Honolulu and other districts of the Islands, for

the purpose of a differentiation in the license fee required.

The plaintiff appellant claimed discrimination in this re-

spect. This Court in Toyota v. Hawaii, 226 U. S. at 191,

192 held that the classification was reasonable and within

the legislative discretion.

This Court, 226 U. S. at 191, 192, said:

‘‘The remaining contention, urged in various forms

by the assignments of error, comes to the single point

that the statute created an arbitrary classification. It

cannot be said, however, that there was no reasonable

basis for a distinction between Honolulu and other dis-

tricts. And it was the province of the legislature to

decide upon the amount of the fees which should be

charged. It must be assumed that in so deciding it took

into account varying conditions in the respective locali-

ties, as, for example, in the amount of business trans-

acted and in the corresponding value of such licenses.

Necessarily, as was said in Magoun v. Illinois Trust

and Savings Bank, 170 U. S. 283, 294, the power of

classification ‘must have a wide range of discretion.’

It is not reviewable ‘unless palpably arbitrary.’ Orient

Insurance Co. v. Daggs, 172 U. S. 557, 562; Louisville &

Nashville R. R. Co. v. Melton, 218 U. S. 36, 52-55; Engel

v. O'Malley, 219 U. S. 128; Lindsley v. Natural Carbonic

Gas Co., 220 U. S. 61, 78; Mutual Loan Co. v. Martell,

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a

43

922 U. S. 225, 235. With its intimate knowledge of

local conditions, the Supreme Court of the Territory

said upon this point: ‘The great bulk of the business

of the Territory is done in Honolulu. It is not for us

to say whether we would make the difference in the

amount of license fees in this case as large as the legis-

lature has made it. It is sufficient that we cannot 497

that the difference is unreasonable or that the statu‘e is

unequal or arbitrary in its operation.’ ’’

In Booth v. State of Indiana, supra, this Court sustained,

against a challenge that the classification was arbitrary and

in violation of Section 1, of the 14th Amendment to the

Federal Constitution, a law of Indiana which required

operators of coal mines to provide a wash house upon re-

quest of 20 miners, and if the mine did not employ 20 miners,

then upon request of one-third (14) of the miners employed.

The Court, in the cited case 937 U. 8. at 397, 398, pointed

out the reasoning by which the Courts sustain ‘* fixed bounda-

ries’ in the field of classifications. At the cited pages this

Court said:

“Tt is, however, further objected that the law dis-

criminates because it may be applied to one mine and

not to another, all other conditions being the same but :

the desire of the miners—indeed, discriminates upon 4 |

distinction more arbitrary that that, upon the desire of

twenty in one mine as against a lesser number, nineteen,

it may be, in another. The objection is a familiar one

and has an instance and answer in McLean v. Arkan-

sas, 211 U. S. 539. It is the usual ground of attack upon

a distinction based on degree, and seems to have a

special force when the distinction depends upon a dif-

But there are many practical analogies. The juris-

diction of a court is often made to depend upon amounts

apparently arbitrarily fixed. For instance, the juris-

diction of the District Court of the United States (for-

merly the Cireuit Court) is limited to civil suits in law

a

44

and equity in certain instances in which the amount in

controversy is $3,000. It could be objected, as it js

here objected, that the amount is arbitrary and that

there cannot be any difference in principle between suits

for $3,000 and suits for $2,999, a distinction dependent

upon one dollar. Indeed, in more acute illustration,

the distinction may be made of one cent only. And so

might there be objection to any amount which might be

selected, as it might be also to any number of petition.

ing miners which the legislature of Indiana might have

selected. Indeed, would not an objection have the same

legal strength if the law had been made to depend upon

anything else than unanimity of desire? To require

that it might well have been thought by the legislature

would render the legislation nugatory, and that a lesser

number would call it into exercise and attain its object.

The conception, no doubt, was that a lesser number—in-

deed, the number selected—would be fairly representa-

tive of the desire and necessity of the miners and that

use would breed a habit, example induce imitation and

a healthful practice starting with a limited number

might become that of all. And such consummation

justified the effort, the manner adopted attaining the

end sought as well as if not better than a direct and

peremptory requirement of the miners and mine

owners.”’

In Northwestern Laundry v. Des Moines, 239 U. 8. 486

sustained a law which applied to laundries in cities of the

State of Iowa. ‘‘Now or hereafter having a population of

sixty-five thousand (65,000) inhabitants or over.”’ This

statute was attacked upon the grounds that the classifica-

tion was arbitrary and an illegal classification in violation

of Section 1, Fourteenth Amendment to the Federal Con-

stitution. This Court sustained the classification and in

239 U.S. at 495 said:

‘* As to the attack upon the ordinance because of arbi-

trary classification, this question has been so often dis-

cussed that nothing further need be said. The ordi-

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45

nance applies equally to all coming within its terms,

and the fact that other businesses might have been in-

cluded, does not make such arbitrary classification as

annuls the legislation. Nor does it make classification

illegal because certain cities are included and others

omitted in the statute. Eckerson v. Des Moines, 137

lowa, 452.’’

In Walls v. Midland Carbon Co., 254 U. S. 300, 65 L. Ed.

976, 41 S. Ct. 118, this Court sustained a law of the State

of Wyoming which designated the location of gas wells as

“within ten miles of any incorporated town or industrial

plant’’ for the operation of a classification statute. After

citing Bacon v. Walker, 204 U. 8. 311, and with reference

to Bacon v. Walker, supra, in 254 U. S. at 315, this Court

said:

‘*Pertinent cases were cited, and the exclusion from

grazing within two miles of the possessory claim of an-

other was decided to be legal, that ‘the selection of

some limit is a legislative power,’ and that it was ‘only

against the abuse of the power, if at all, that the courts

may interpose.’ The mere distance expressed noth-

ing.”’

To this same point of legislative power to fix a limit or

line of demarcation between the taxed and the untaxed, Mr.

Justice Holmes in a dissenting opinion in Louisville Gas &

Electric Co. v. Coleman, 277 U. 8. at 41, said:

‘‘When a legal distinction is determined, as no one

doubts that it may be, between night and day, childhood

and maturity, or any other extremes, a point has to be

fixed or a line has to be drawn, or gradually picked out

by successive decisions, to mark where the change takes

place. Looked at by itself without regard to the neces-

sity behind it the line or point seems arbitrary. It

might as well or nearly as well be a little more to one

side or the other. But when it is seen that a line or

point there must be, and that there is no mathematical

or logical way of fixing it precisely, the decision of the

my

46

legislature must be accepted unless we can say that it

is very wide of any reasonable mark.’’

The dissenting opinion of Mr. Justice Brandeis in Lowis.

ville Gas & Electric Co., supra, becomes important for the

reason that it is cited and followed by this Court in Madden

v. Kentucky, 309 U. 8. 83 at p. 88. Mr. Justice Brandeis, in

his dissenting opinion in Louisville Gas € Electric Co,,

supra, 277 U. S. at 44, 47, said:

‘In Magoun »v. Illinois Trust & Savings Bank, 170

U. S. 283, 300, 301, the inheritance tax, in the case of

strangers to the blood, exempted estates of $500, but

did not allow that exemption to larger estates. More.

over, it prescribed progressive rates, rising in steps

with the amount of the gift and applying to the entire

gift and not merely to the excess. Under the law a

legatee of $10,000, being subject to a 3 per cent tax,

would receive net $9,700, whereas a legatee of $10,001,

being subject to a 4 per cent tax on the entire legacy

would receive net only $9,600.96. The Court held the

classification reasonable, saying:

‘The condition is not arbitrary because it is deter-

mined by that value (of the inheritance) ; it is not

unequal in operation because it does not levy the

same percentage on every dollar; does not fail to

treat ‘all alike under like circumstances and condi-

tions, both in the privilege conferred and the liabili-

ties imposed.’ The jurisdiction of courts is fixed by

amounts. The right of appeal is. As was said at bar

the Congress of the United States has classified the

right of suitors to come into the United States courts

by amounts. Regarding these alone, there is the

same inequality that is urged against classification

of the Illinois law. All license laws and all specific

taxes have in them elements of inequality, neverthe-

less they are universally imposed and their legality

has never been questioned.’

The Court has likewise sustained a statute which im-

posed an ad valorem tax upon telephone companies with

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47

annual earnings of $500 or,more, while exempting

others similarly situated whose earnings were less than

$500, Citizens Telephone Co. Vv. Fuller, 229 U. 8. 322,

329; a statute which imposed a license fee upon ‘all

persons’ engaged in the laundry business but exempted

concerns employing not more than two women, and

steam laundries, Quong Wing v. Kirkendall, 223 U. 8.

59, 62; an ordinance under which a $5 tax was laid

upon merchants whose gross sales were $1,000, and a

tax of $10 upon those similarly situated whose sales

were $1,001, Clark v. Titusville, 184 U. 8. 329, 331; an

ordinance which laid a tax of $1,000 upon theatres whose

admission was $1 or more, but only $400 upon those

similarly situated whose admission prices were less

than #1 and more than 50 cents, Metropolis Treatre

Co. v. Chicago, 228 U. S. 61, 69-70.

In the light of these decisions, I should have supposed

the validity of the classification made by the Legis-

lature of Kentucky to be clear. Recognizing that mem-

bers of the legislature of the State which made the

classification, and members of the court which sane-

tioned it, necessarily possessed greater knowledge of

local conditions and needs than is possible for us, I

should have assumed that this classification, which ob-

viously is not invidious, was a reasonable one, unless

some facts were adduced to show that it was arbitrary.

Compare Heisler v. Thomas Colliery Co., 260 U.S, 245,

255; Clarke v. Deckebach, 274 U. 8. 392, 397. No such

facts have been adduced by the Company. On the other

hand, facts called to our attention by counsel for the

Commonwealth and of which we may take judicial

notice, McLean v. Denver & Rio Grande R. R. Co., 208

U. 8. 38, 50; Sligh v. Kirkwood, 237 U. 8. 52, 61, show

that the classification was adopted by the Legislature

of Kentucky in an effort to equalize the tax burden

incident to loans.’’

And again Mr. Justice Brandeis in the last cited case,

277 U. S. at 53, said:

“Wherever the line might be drawn, the statute would

sometimes operate unjustly. But such occasional in-

—

stances of injustice would not render the classification

arbitrary. As was said in Metropolis Treatre Co. y,

Chicago, 228 U. 8. 61, 69, 70: ‘The problems of govern.

ment are practical ones and may justify, if they do not

require, rough accommodations—illogical, it may be,

and unscientific.’ ’’

In Madden v. Kentucky, 309 U. S. 83, this Court spoke

definitely upon the question of classification, and at p. 88

cited the dissenting opinion of Mr. Justice Brandeis in Louis-

vile Gas & Electric Co. v. Coleman, supra.

Extensive quotation from Madden v. Kentucky, supra, is

made at p. 17, 18 of this Brief and same will not be repeated

here. Appellees respectfully ask the Court to refer to the

previous quotation.

Carmichael v. Southern Coal & Coke Co., 301 U. 8S. 495,

construes the unemployment compensation Act of Alabama

in which it was charged that the classification of employers

who had eight or more employees for the operation of the

statute was arbitrary and in violation of Section 1, Four-

teenth Amendment to the Constitution of the United States.

Speaking to this question, this Court, in reversing the

Trial Court (301 U. S. at 510, 511), said:

‘*Distinetions in degree, stated in terms of differences

in number, have often been the target of attack, see

Booth v. Indiana, 237 U. 8. 391, 397. It is argued here,

and it was ruled by the court below, that there can be

no reason for a distinction, for purposes of taxation,

between those who have only seven employees and those

who have eight. Yet, this is the type of distinction

which the law is often called upon to make. It is only a

difference in numbers which marks the moment when

day ends and night begins, when the disabilities of in-

fancy terminate and the status of legal competency is

assumed. It separates large incomes which are taxed

from the smaller ones which are exempt, as it marks

here the difference between the proprietors of larger

businesses who are taxed and the proprietors of smaller

businesses who are not.

48

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49

‘‘ Administrative convenience and expense in the col-

lection or measurement of the tax are alone a sufficient

justification for the difference between the treatment

of small incomes or small taxpayers and that meted

out to others.’’

It is to be noted that the language of this Court in the

above quotation is distinctly similar with respect to when

‘*q point has to be fixed or a line has to be drawn’’ to the

language of Mr. Justice Holmes in his dissenting opinion

in Louisville Gas & Electric Co. v. Coleman, supra.

It may have been determined by the legislature of Iowa

that the administrative convenience and expense in apply-

ing the legislative enactment challenged in the case at bar

to many small tracts of land would be greater than the

benefits. This would have been sufficient distinction if

there were none other. Or it may have been, as was said

by the Supreme Court of Iowa in Leicht v. Burlington,

supra, fixed at 10 acres as @ guide to the assessor or other

taxing officials. At any rate, it is as logically placed at

10 acres as at 8 acres, or any other figure. The classifica-

tion at 10 acres for tax exemption purposes of lands used

for agricultural purposes has existed in the law of Iowa

for more than 70 years, and was held constitutional by the

Supreme Court of Iowa as a reasonable classification more

than 60 years ago. See Leicht v. City of Burlington, su-

pra, decided in 1887. Surely, under the rules of construc-

tion of the 14th Amendment to the Federal Constitution

hereinbefore quoted, this Court cannot say that the classi-

fication is in the remotest chance arbitrary, capricious,

hostile, or palpably erroneous, and that a substantial Fed-

eral question is raised by reason of the 10 acre line of de-

marcation; especially in view of the long established hold-

ings of this Court. This Court should, therefore, decline

jurisdiction in this case.

50

V

Proposition

The classification of school districts wherein the millage

levy is 15 mills for general (operational) school purposes

in order that the tax credit may apply is =ot plainly arbi-

trary, hostile, capricious, or palpably erroneous; and js

therefore not violative of Section 1, of the 14th Amend.

ment to the Constitution of the United States.

AUTHORITIES

See cases and quotations in Division IV of this Brief:

Miller v. Childers, 107 Okla. 57, 238 Pac. 204 at 206, 207,

Great Northern R’y Co. v. Whitfield, 65 S. D. 173, 272

N. W. 787 at 790, 791.

Apartment Owners Ass'n v. City of Minneapolis, 191

Minn. 365, 254 N. W. 443.

Myers v. Board of Education, 48 Oh. App. 43, 192

N. E. 393.

Application of Cited Cases

The cases cited and quoted in Division IV, P. 35, relating

to the classification at 10 acres for the operation of the

legislative enactment apply with equal force to the 15 mill

classification. The Legislature of Iowa determined that

where millage levies are below 15 mills for general oper-

ating expenses, the school taxes were not a burden on agri-

cultural lands. This Court has said that where a line must

be drawn the Courts will leave it to the legislative body

as to where it may be drawn.

The 15 mill limitation for the purpose of tax limitation

or ceiling, or for the purpose of appropriations to aid edu-

eation are not unusual. The Constitution of Oklahoma

provides that school districts are authorized to levy up to

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51

15 mills for general school purposes. The legislature made

an appropriation to aid school districts where such millage

did not raise sufficient funds to carry on a school. The

Supreme Court of Oklahoma sustained the legislative en-

actment against an attack that the Act was arbitrary and

an unreasonable classification.

The Supreme Court of Oklahoma, 238 Pac. at 206, said:

“The Constitution has specifically authorized each

school district to levy and collect a 15-mill tax levy,

to be by it expended in carrying on this work. There

the Constitution terminates the expenditure by a school

district, and from there, where the school district’s

work must end, tk > Legislature must ‘carry on’ to the

point where we can say that there is satisfied the con-

stitutional mandate for the maintenance of a free

publie school system. The Legislature, with authority

so to do, has said an 8 months annual school term is

necessary. Affirming its decree, we adopt its judg-

ment as our own. With the maximum levy expended,

many school districts will have perhaps only a 3 months

term, while others may have a 12 month school if

they so desire. Without affirmative aid by the Legis-

lature, the constitutional mandate for an efficient free

school system will be unexecuted in those weak school

districts.”

And further, 238 Pace. at 207, that Court said:

“The act makes the appropriation available in all

school districts in the state where, under the restric-

tion of the Constitution, such districts are unable to

maintain the public schools for such length of terms

as the Legislature, acting within its constitutional au-

thority, and the exercise of sound legislative discre-

tion, has declared must be provided. The classification

is a reasonable one. The act applies to all then or

thereafter coming within the classification, and is not

violative of the section of the Constitution to which

we have referred.”’ (Italics supplied)

—

52

In Great Northern Ry. Co. v. Whitfield, 65 S. D. 173, 272

N. W. 787 at 790, 791, the Supreme Court of South Dakotg

sustained a law of that state which fixed the maximum levy

on agricultural lands at 8 mills against an attack that the

law constituted an arbitrary classification in violation of

Section 1, 14th Amendment to the Constitution of the

United States.

Appellees here point out that the statute attacked in the

case at bar applies to any and all school districts in the

state, either now or in the future, where the millage rate

for general tax purposes exceeds 15 mills. Naturally, the

millage rates in school districts vary from time to time

and the statute applies in any and all school districts where-

in the levy exceeds 15 mills in any year.

Assessment statutes may be fitted to the state’s tax sys-

tem either by maximum tax levies in mills on a class of

property, or by a percentage of the assessed valuation.

In the laws of Minnesota, property has long been classi-

fied on the basis of a percentage of actual value. This

scheme of taxation was sustained against an attack that

it violated the equal protection clause of the Fourteenth

Amendment to the Federal Constitution. In Apartment

Operators’ Ass’n v. City of Minneapolis, 254 N. W. at 444,

the Supreme Court of Minnesota, citing many opinions

of this Court, sustained the law and at the cited page said:

‘In classifying property for the purpose of taxation,

the Legislature is determining a matter of state policy

and is not tied down to any narrow or technical rule.”’

Dohs v. Holm, 152 Minn. 529, 189 N. W. 418, 420.

Prior to the 1933 enactment here considered, real

property was divided into three general classes, viz.:

‘Real estate in which iron ore is known to exist’ (the

iron ore, mined or unmined, assessed at 50 per cent

of its true value) ; ‘unplatted real estate’ at 33% per

cent of its true value, and all other real estate at 40

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53

per cent of its true value. Mason’s Minn. St. 1927,

p. 1933. Chapter 359 provides:

‘Class 3 b. All unplatted real estate, * * * which

is used for the purposes of a homestead, shall consti-

tute class three ‘b’ (3b) and shall be valued and as-

sessed at twenty (20) per cent of the true and full value

thereof. Provided, if the true and full value is in

excess of the sum of $4,000.00, the amount in excess of

said sum shall be valued and assessed as provided for

by class three (3) hereof. (Property coming within

class 3 is valued and assessed at 3344 per cent of its

true value.)

‘All platted real estate * * * which is used for the

purposes of a homestead, shall constitute class 3c and

assessed as provided for by class four (4) hereof.

(Property coming within class 4 is valued and as-

sessed at 40 per cent of its true value.)’

“The classification of platted and unplatted land still

remains. That classification is again divided into

homestead and nonhomestead lands, the former being

assessed at a lesser percentage of true value. The

distinction is predicated upon the use made of the

property. The other change is based upon value and

gives a preference to homesteads of a value of $4,000

or less.’’

And again at p. 445 the Court said:

‘Placing homesteads in two classes on the basis of

valuation was within the scope of the broad power 0”

the Legislature to classify property for the purpose

of taxation. Its selection of property for one classt-

fication or another is binding upon the courts, ‘unless

it appears beyond a reasonable doubt that the legis-

lative body acted arbitrarily and without sufficient m-

formation.’ McReavy v. Holm, 166 Minn. 22, 206 N. W.

942, 944. The United States Supreme Court, in Citi-

—

54

zens’ Tel. Co. v. Fuller, 229 U. S. 322, 33 S. Ct. 833, 836,

57 L. Ed. 1206, stated: ‘Granting the power of classi.

fication, we must grant government the right to select

the differences upon which the classification shall be

based, and they need not be great or conspicuous, * * *

The state is not bound by any rigid equality. This is

the rule; its limitation is that it must not be exercised

in ‘clear and hostile discriminations between particu-

lar persons and classes.’ We conclude that the class-

ification here considered does not come within the

above quoted limitations.’’ (Italics supplied.)

A classification of school districts at 15 mills was sus-

tained against an attack that it was not uniform in opera-

tion in Myers v. Bd. of Education, 48 Ohio App. 43, 192 N. E.

393. The statute provided that school districts wherein

the millage levy for school purposes was 15 mills could

participate in the state educational equalization fund by

voting on additional school fund tax levy of not to exceed

3 mills. The first qualification for participation in the

state fund was that the levy for school purposes must ex-

ceed 15 mills in some districts and 9.5 mills in other dis-

tricts. The Court held that the Act was of uniform oper-

ation, and in 192 N. E. at 400, said:

‘*Under the provisions of section 5625-18a, the period

the levy remains in effect is the number of years the

school district may continue to participate in the equal-

ization fund, which is a matter of public record and

determinable from such record, and the rate of tax

is fixed by definite arithmetical processes, determinable

from public records, so that the rate of the tax and

the period for which it is to run are both definite and

certain. The act is of uniform operation throughout

the state, as all school districts similarly situated were

entitled to its benefits; and the tax therein provided

to be levied was by uniform rule, as it was the same

in every school district proceedings pursuant to the

act, and the object of the tax was distinctly stated.”

(Italics supplied.)

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55

Although the question of special privileges and immuni-

ties and equal protection of the laws clause of Section 1,

Fourteenth Amendment to the Federal Constitution was

not raised and decided, the question of uniformity of

operation was raised and decided, and, if uniform in

operation the Act could not be arbitrary, or hostile within

the meaning of that amendment.

These cases from state courts are not binding upon this

Court and are cited merely to show that a 15 mill limita-

tion, or other millage limitation, are common in school tax

law legislation and that the line of demarcation at 15 mills

is within legislative discretion with which the Courts will

not interfere or hold in violation of Section 1, of the

Fourteenth Amendment to the Federal Constitution.

This Court cannot say that a substantial Federal ques-

tion under the Fourteenth Amendment has been raised by

this 15 mill classification, and this Court should decline

jurisdiction on this ground.

vi

Proposition

The legislative enactment challenged in the case at bar

was enacted for a public purpose, to-wit in aid of agricul-

ture as an industry, and to encourage the reorganization

of public school districts; the legislature of the State of

Iowa, and the Supreme Court of Iowa have so determined ;

and this Court will not hold the enactment void unless ‘‘the

act be so arbitrary as to compel the conclusion that it does

not involve an exertion of the taxing power, but constitutes,

in substance and effect, the direct exertion of a different

and forbidden power, &s, for example, the confiscation of

property’’.

AUTHORITIES

Dickinson v. Porter, (The case at bar), 35 N.W. 24

(Iowa) 66 at 76, 78, 79, 81, Appellant’s Statement

as to Jurisdiction, Appendix ‘‘C’’, p. 15 to p. 28;

Fallbrook Irrigation Dist. v. Bradley, 164 U. 8. 112 at

157 to 161; 41 L. Ed. 388, 389; 17 S. Ct. 56 at 62 to 64;

Thomas v. Gay, 169 U. S. 264 at 278, 279, 42 L. Ed

740 at 746, 18 S. Ct. 345;

Strickley v. Highland Boy Mining Co., 200 U. 8S. 527

at 530, 531, 50 L. Ed. 581 at 583, 26 S. Ct. 301 at 302,

303 ;

Hairston v. Danville € Western Ry., 208 U. 8S. 598 at

606, 607, 52 L. Ed. 637 at 641, 642, 28 S. Ct. 331 at

334, 335;

Union Lime Co. v. C. d N.W. Ry. Co., 233 U. 8. 211 at

218, 58 L. Ed. 924 at 928, 34 S. Ct. 522 at 524;

Jones v. City of Portland, 245 U. 8. 217 at 221, 222, 62

L. Ed. 252 at 255;

Green v. Frazier, 253 U. 8S. 233 at 239, 240, 64 L. Ed.

878 at 881, 882, 40 S. Ct. 499 at 501;

Rindge v. County of Los Angeles, 262 U. 8S. 700 at 705,

706, 67 L. Ed. 1186 at 1192, 1193;

Mitheim v. Moffat Tunnel Dist., 262 U. S. 710 at 717,

67 L. Ed. 1194 at 1199, 43 S. Ct. 694 at 696;

Louisville Gas & Electric Co. v. Coleman, 277 U. 8. 32

at 40, 72 L. Ed. 770 at 775, 48 S. Ct. 423 at 426;

Williams v. Mayor of Baltimore, 289 U. 8S. 36 at 41, 42,

77 L. Ed. 1015 at 1021, 1022, 53 S. Ct. 431 at 433;

A. Magnano Co. v. Hamilton, 292 U. 8. 40 at 43, 44,

78 L. Ed. 1109 at 1113, 1114, 54 §. Ct. 599;

Carmichael v. Southern Coal & Coke Co., 301 U. 8.

495 at 514, 515, 81 L. Ed. 1245 at 1256, 57 S. Ct. 868

at 874, 875;

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57

Sage Stores Co. v. Kansas, 323 U. 8. 32 at 35, 89 L. Ed.

95 at 28 65 S. Ct. 9 at 10;

Asbury Hospital v. Cass County, 326 U. S. 207 at 214,

215, 90 L. Ed. 6 at 153, 14, 66 S. Ct. 62 at 65;

Everson v. Board of Education, 330 U. 8. 1 at 6, 7, 91

L. Ed. 711 at 718, 719, 67 S. Ct. 504 at 506, 507;

Board of Supervisors v. Stewart, 30 Iowe 9 at 22, 29,

1 Am. Rep. 238;

Grout v. Kendall, 195 lowa 467 at 477, 478, 192 N.W.

529 at 533;

Carroll v. City of Cedar Falls, 221 Iowa 277 at 282, 292,

261 N.W. 652 at 655, 660;

Ahrweiler v. Board, 226 lowa 229 at 233, 236, 283 N.W.

889 at 891, 892;

Apartment Operators’ Assn. V. City of Minneapolis,

195 Minn. 365, 254 N.W. at 443, 444, 445;

State v. Snyder, 29 Wyo. 199, 212 Pace. 771, 777, 782.

Application of Cases Cited

The Supreme Court of Iowa, in the opinion in the case at

bar, 35 N.W. 2d 66 at 76, held that the legislative enact-

ment for the purpose of benefiting agriculture, lowa’s

basic industry, and to encourage the reorganization of

school districts to improve the state’s educational system,

both of which are universally held to be for the general

welfare and therefore each is for a ‘‘ public’ purpose. These

holdings are assigned as error in paragraphs 5, 6, 7, and

8, p. 2, 3, Appellant’s Assignment of Errors.

The Supreme Court of Iowa in the case at bar, 35 N.W.

2d at 76; Appellant’s Statement as to Jurisdiction, p. 15,

17, said

‘As stated in Watson v. State Comptroller, 254 U.S.

122, 124, 125, 41 S. Ct. 43, 44, 65 L. Ed. 170, 175: ‘Any

classification is permissible which has a reasonable

relation to some permitted end of government action.

: |

* * * It is enough, for instance, if the classification

is reasonably founded in ‘the purposes and policy of

taxation’. (Citations.)’

The power of state legislature to adjust their tax

laws in order to encourage an industry or undertaki

deemed vital to the welfare of the state or in further.

ance of some related principle of public policy has

frequently been upheld.

The governor of the state in commenting upon the

report of the school code commission said in his mes-

sage to the legislature that enacted this law, ‘We all

know that agriculture is Iowa’s basic resource. Upon

its prosperity depends the prosperity of our great

number of small businesses and communities.’ It was

most effectively demonstrated during the depression

of the early nineteen thirties that the well-being of the

state as a whole is directly dependent upon the welfare

of agriculture. The prosperity of our basic industry

was no less vital when this act was passed nor is it less

vital now when many other countries look to us for

food and agriculture must supply their needs.

Our state constitution contains the express mandate,

‘The General Assembly shall encourage, by all suitable

means, the promotion of intellectual, scientific, moral,

and agricultural improvement.’ Art. IX. 2d div., see.

3.

We have frequently referred to agriculture as the

basic industry in this state. See for example Blume v.

Crawford County, 217 Iowa 545, 550, 551, 250 N.W.

733, 92 A.L.R. 757; Clear Lake Co-op. Live Stock

Shippers’ Ass’n. v. Weir, supra, 200 Towa 1293, 1298,

206 N.W. 297. The Blume case (217 Iowa 545, 250

N.W. 735) upholds a law directing county boards of

supervisors to appropriate funds raised by taxation

to county farm bureaus under certain conditions and

says a statute in aid of agriculture ‘is not repugnant to

any constitutional provision.’ The plain inference from

the opinion is that what benefits agriculture benefits the

state as a whole. Other decisions generally like the

Blume case appear in Annotation, 92 A.L.R. 768, 770.

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59

Pertinent here is this language from Carman v. Hick-

man County, 185 Ky. 630, 215 8.W. 408, 411:

‘* * © it is a matter of common knowledge, of which

everybody must take notice, that in the agricultural

interests of the state lie its chief source of wealth,

and that the prosperity of the state springing from this

source contributes to the growth and importance of

every other industry in the state, as well as to the

comfort and happiness of the whole people; * * °’.

It is not debatable that it is part of the public policy

of this state, evidenced by our constitution and numer-

ous statutes, to encourage agriculture. It seems equally

plain the encouragement of our basic industry serves

the public interest. We are not convinced the legisla-

ture might not fairly conclude this law in its practical

operation will both benefit and encourage agriculture.”’

(Italics supplied.)

To sustain this holding the Court cited (See 35 N.W.

9d at 77) from the opinions of this Court the following

cases:

Carmichael v. Southern Coal & Coke Co., 301 U. S.

495, 57 S. Ct. 868, 872, 81 L. Ed. 1245, 1253, 1255,

109 A. L. R. 1327, 1333, 1335;

Aero-Mayflower Transit Co. v. Georgia Pub. Serv.

Comm. 295 U. 8. 285, 291, 55 S. Ct. 709, 711, 79 L.

Ed. 1439, 1444;

American Sugar Refining Co. v. Louisiana, 179 U. 8.

89, 95, 21 S. Ct. 43, 46, 45 L. Ed. 102, 105;

A. Magnano Co. v. Hamilton, 292 U. S. 40, 54 S. Ct.

599, 78 L. Ed. 1109;

Louisville Gas & Electric Co. v. Coleman, 277 U. S.

32, 48 S. Ct. 423, 72 L. Ed. 770.

The Court also cited cases from many state jurisdictions.

With reference to the furtherance of the reorganization

eee eet

—

of school districts to improve the state’s educational 8ys-

tem, the Court, 35 N.W. 2d at 78, said:

‘*Since we have upheld the classification” of lands

used for agricultural purposes upon the reasons stated

in Division IIL and this Division IV, it is unnecessary

to consider whether, as suggested by the legislative

commission that recommended the passage of the act

and as argued by defendants, the classification might

also be sustained as in furtherance of the reorganization

of school districts in order to improve our educational

system. We may observe, however, this might well

have been one of the considerations that occurred to the

legislature in making the classification and we cannot

say such conclusion could not be reached in good faith.

The test of reasonableness of a classification is good

faith of the legislature in making it.’’ (Italics supplied)

60

The operation of the Act is simple. Sections 426.6, et seq.,

Code of Iowa, 1946, p. 2 of Appellant’s quotation of the

statutes attacked, provide that the county auditor (who

makes up the tax lists in Iowa) lists by school districts all

the tracts of lands entitled to credit under the Act together

with the taxable value, as shown by the assessment rolls

returned to him by the assessors of the county. He then

determines from this value and the budget of the school

district filed with him the millage rate in each school dis-

trict for general school purposes. If the millage rate is in

excess of 15 mills he computes the amount of credit each

and all the tracts are entitled to, by multiplying the taxable

value thereof by the millage rate in excess of 15 mills. He

totals the amounts for all school districts in his county and

forwards the total for his county to the state comptroller.

The state comptroller then totals the amount of credits for

all counties of the state and apportions the funds appropri-

ated and in his hands to the several counties in the state,

and forwards state warrants to the county auditors of the

several counties of the state. Upon receiving the warrants,

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the county auditor determines the amount of credit to be

credited to each tract of agricultural lands and enters that

amount on the tax list. He then delivers the tax lists (show-

ing the credit to each tract of agricultural land) and the

state comptroller’s warrant representing the total credits

to the agricultural land in his county to the county treasurer

who credits each school district with the total amount of the

tax credits credited on lands in the district, and enters the

amount credited to each tract of land in the county upon

the tax receipt for the land.

The Court, 35 N.W. 2nd at 81 pointed out that this proce-

dure is modeled after the Homestead Tax Credit Act, Chap-

ter 425, Code of lowa, 1946 enacted in 1937. The Court

said:

‘The law in question seems directly analogous to the

Homestead Tax Credit Act, Ch. 425, Code, 1946. It is

plainly patterned after the homestead law. The public

policy served by the former is the encouragement of the

industry on which the prosperity of the state largely

depends. The public policy served by the other, as

stated in Ahrweiler v. Board, 226 Iowa, 229, 233, 236,

283, N.W. 889, is the encouragement of home owner-

ship. Perhaps the ownership of homes is more bene-

ficial to the state than the welfare of agriculture. If

80, the distinction is largely of degree and not of kind.”’

(Italies supplied)

In the case of Ahrweiler v. Board, 226 lowa 229, 233, 236;

283 N.W. 889, 891, 892, the Supreme Court of Iowa said:

“Thus it appears that the legislature, realizing the

social and material benefits to the public at large from

the ownership of homesteads by the people, sought to

encourage and increase such ownership and occupation.

The method adopted was to grant to each homestead a

credit against the real estate taxes for each year the

property constituted a homestead.’’

1:

The Court in the cited case, 283 N.W. at 892 said:

62

‘The tax credit is not a credit to the owner, but to

the homestead, although this results in benefit to the

owner and cash refunds were allowed taxpayers who

had paid such taxes prior to the allowance of the credit.

That the credit is to the property, as distinguished

from the owner, is evident from various provisions of

the act. The credit (or refund) is given against the tax

on the homestead and the taxpayer makes claim therefor

as owner of the homestead.

‘The Homestead Exemption Law was not adopted

upon the premise that a homestead credit was a gift

or bonus with no consideration requirements in re-

turn. The principle behind the act was benefit to be

returned to the state and its people by homestead own

ership. As consideration for exemption it might be

said that the homestead earns its credit each year of

its existence. Consequently, it should not be entitled

to credit for any other year. The credit against the

1936 tax may be explained and justified upon the theory

that it was morally due for service already rendered.”

(Italics supplied)

The Court in the case at bar, 35 N.W. 2d 81, also said:

‘**Again, from 1 Cooley, 4th Ed., section 175, page

384: ‘In case of doubt, courts are largely influenced by

the public policy of the state, in determining whether

taxation is for a public purpose.’ See also 61 CJ,

Taxation, section 20.

As previously indicated, there can be no question

it is part of the public policy of this state to encourage

agriculture. And the furtherance of the reorganization

of school districts in order to improve our educational

system would be as plainly part of our public policy.

As hereinafter pointed out, it has been the policy of

the legislature from its inception to grant numerous

tax exemptions.’’ (Italics supplied)

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The Supreme Court of Iowa, in the state’s early history

(1870) sustained a tax levied to aid in the construction of

railroads as a tax for a public purpose. See 30 Iowa 9,

I Am. Rep. 238. That Court also sustained an appropri-

ation through a bond issue for the payment of a bonus to

soldiers, sailors and marines for service in World War I

as being for a public purpose. In Grout v. Kendall, 195

Iowa 467, 477, 478; 192 N.W. 529 at 533, that Court said:

‘‘Whether a particular purpose is a public purpose,

and whether it has the sanction of a moral obligation

of the state, are questions which have never been defi-

nitely answered or defined. It has been quite uniformly

held by the courts that the determination of such ques-

tions inheres largely in the legislative power. Within

the zone of doubt that is a moral obligation of the state,

and that is a public purpose, which the Legislature

deems to be such.”’

The Supreme Court of Iowa, in the case at bar, construed

the legislative enactment to place a ceiling of 15 mills upon

agricultural lands in tracts of 10 acres or more, and by ap-

propriation from funds in the state treasury reimburses

the districts wherein the ceiling applies. In the opinion, 35

N.W. 2d at 79, Appellant’s Statement as to Jurisdiction,

Appendix **C,”’ p. 22, the Iowa Court said:

‘‘In reality, however, the law separately classifies

only lands used for agricultural purposes and those not

so used and then subelassifies agricultural lands into

tracts containing ten acres or more and those not that

large (section 424.2) for the purpose of applying a dif-

ferent tax burden to the lands thus classified in order

to apportion the taxes to the actual benefits received,

to encourage agriculture and, the legislature may also

have felt, to further the reorganization school districts

so as to improve our educational system.

A ceiling of 15 mills for school taxes is placed upon

agricultural tracts of ten acres or more and the state,

|

64

to the amount of $500,000, reimburses the districts jp

which the ceiling is applied. The South Dakota law,

upheld in Great Northern R. Co. v. Whitfield, supra,

65 8.D. 173, 272 N.W. 787, 111 A.L.R. 1475, fixes eight

mills as the ceiling for school taxes on agricultural

lands.”’

The 52nd session of the lowa General Assembly created

a Military Service Tax Credit Fund, (Ch. 231, Laws of 52nd

G.A.). For more than fifty years, the State of lowa has

granted exemption in a limited amount to persons for mili-

tary service in the various wars engaged in by the United

States and that exemption has now been extended to per-

sons for military service in so-called World War II. The

legislative enactment last above referred to made an ap-

propriation to reimburse local taxing bodies for the reve-

nue lost on an analogous basis to the agricultural land credit

act cli#!lenged in the case at bar.

The Court in the case at bar, 35 N.W. 2d at 79, 80, Ap-

pellant’s Appendix, p. 23, 24, with reference to the appro-

priation feature of the challenged enactment, said:

‘*Since, as we have held, this act is a valid taxing

measure is not rendered invalid by the appropriation

provision. The public policy in furtherance of which

the classification is made for the purpose of applying

a different tax burden or a partial tax exemption, if

the law be considered a partial tax exemption measure,

is sufficient to support the appropriation. An act can-

not be said to be for a private purpose where ‘some

principle of public policy’ underlies its passage,

Whether an appropriation connected with a taxing

statute is for a public purpose depends upon whether

the remainder of the statute is for such purpose. See

1 Cooley, 4th Ed., section 177.

Without the appropriation made by the act the loss of

revenue to the school districts by the imposition of the

ceiling of 15 mills would fall wpon other property

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owners in the districts. Under the law as written, how-

ever, such loss is borne by the state up to the amount

appropriated. The money is taken from one public

fund and put into another.

That the appropriation feature of the act does not

render it invalid in the respect claimed see State ex rel.

Board v. Snyder, 29 Wyo. 199, 212 P. 771, 777, 782,

which sustains a law that exempts from taxation prop-

erty to ‘he amount of $2000 of certain war veterans

and provides for reimbursement by a state appropri-

ation to each county in the amount of county tax on the

exempted property. The court holds it a valid tax

exemption statute because the legislature might have

found it served a public purpose as an incitement to

patriotism and encouragement to defend the country in

future conflicts and the validity of the law is not aff ected

by the appropriation measure. This from the opinion is

pertinent here:

‘A lawful exemption from taxation cannot, we think,

be regarded as a gift or donation to or in aid of the

individual * * * in whose favor the exemption is de-

clared. * * * Indeed, we do not think the statute makes

a gift to the exemption claimant even indirectly. The

state may be regarded as the sole actor. It exempts

the property declared to be exempt, and stands the loss

not only of the state tax which would otherwise be col-

lected, but the county tax as well. The money appro-

priated is public money, whether in the state or county

treasury, and by the statute is taken out of one

publie pocket or fund and put into another.’ *’ (Italics

supplied)

For more than 50 years, this Court hes held that where

the legislatures and the courts of a state has construed

a legislative enactment to be a part of the public policy of

the state and to be enacted for a public purpose, this Court

will treat such determination ‘‘with very great respect

and * * * regard the decisions as embodying the delib-

—

*

erate judgment and matured thought of the courts of that

state on this question.’’ See Fallbrook Irrigation District

v. Bradley, 164 U. S. at 160, 161 where this Court said

that the rule applies to ‘‘the exercise of the right of emi.

nent domain or by that of taxation.’’

In Strickley v. Highland Boy Mining Co., 200 U. 8. at

530, this Court, speaking to the same subject of ‘‘ publie pur.

pose,’’ said:

‘*In view of the decision of the state court we assume

that the condemnation was authorized by the state laws,

subject only to the question whether those laws as con-

strued are consistent with the Fourteenth Amendment.

Some objections to this view were mentioned, but they

are not open. If the statutes are constitutional as con-

strued, we follow the construction of the state court.”

In Hairston v. Danville d Western Ry. Co., 208 U. §.

598 at 606, 607, speaking to the same subject, said:

“‘The rule of state decision is clearly established

and we have no occasion here to consider the varying

reasons which have influenced its adoption. But when

we come to inquire what are public uses for which the

right of compulsory taking may be employed, and what

are private uses for which the right is forbidden we

find no agreement, either in reasoning or conclusion.

The one and only principle in which all courts seem to

agree is that the nature of the uses, whether public or

private, is ultimately a judicial question. The deter-

mination of this question by the courts has been in-

fluenced in the different States by considerations touch-

ing the resources, the capacity of the soil, the relative

importance of industries to the general public welfare,

and the long-established methods and habits of the

people. In all these respects conditions vary so much

in the States and Territories of the Union that differ-

ent results might well be expected. * * * The pro-

priety of keeping in view by this court, while enforcing

the Fourteenth Amendment, the diversity of local eon-

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67

ditions and of regarding with great respect the judg-

ments of the state courts upon what should be deemed

publie uses in that State, is expressed, justified, and

acted upon in Fallbrook Irrigation District v. Bradley,

ub. sup., Clark v. Wells, ub. sup. and Strickley v. High-

land Boy Mining Co., ub. sup. What was said in these

eases need not be repeated here. No case is recalled

where this court has condemned as a violation of the

Fourteenth Amendment a taking upheld by the state

court as a taking for public uses im conformity with its

laws.’’ (Italics supplied.)

In Jones v. City of Portland, 245 U. S. 217, this Court ap-

plied this rule to municipal taxation to establish and main-

tain a municipa! wood, coal and fuel yard in the City of

Portland, Maine. This Court, 245 U.S. at 221, said:

‘The act in question has the sanction of the legis-

lative branch of the state government, the body pri-

marily invested with authority to determine what laws

are required in the public interest. That the purpose

is a public one has been determined upon full consid-

eration by the Supreme J udicial Court of the State

upon the authority of a previous decision of that Court.

Laughlin v. City of Portland, 111 Maine, 486.

The attitude of this court towards state legislation

purporting to be passed in the public interest, and so

declared to be by the decision of the court of last resort

of the State passing the act, has often been declared.

While the ultimate authority to determine the validity

of legislation under the Fourteenth Amendment is

rested in this court, local conditions are of such vary-

ing character that what is or is not a public use in a

particular State is manifestly a matter respecting

which local authority, legislative and judicial, has

peculiar facilities for securing accurate information.

In that view the judgment of the highest court of the

State upon what should be deemed a public use in a

particular State is entitled to the highest respect.’’

With reference to the application of the rule on publie

purpose to the taxing power, this Court, in Green v. Frazier,

253 U. S. at 239, 240, said:

‘*The taxing power of the States is primarily vested

in their legislatures, deriving their authority from the

people. When a state legislature acts within the scope

of its authority it is responsible to the people, and their

right to change the agents to whom they have entrusted

the power is ordinarily deemed a sufficient check upon

its abuse. When the constituted authority of the State

undertakes to exert the taxing power, and the question

of the validity of its action is brought before this court,

every presumption in its favor is indulged, and only

clear and demonstrated usurpation of power will au-

thorize judicial interference with legislative action.

In the present instance under the authority of the

constitution and laws prevailing in North Dakota the

people, the legislature, and the highest court of the

State have declared the purpose for which these sev-

eral acts were passed to be of a public nature, and

within the taxing authority of the State. With this

united action of people, legislature and court, we are

not at liberty to interfere unless it is clear beyond rea-

sonable controversy that rights secured by the Federal

Constitution have been violated. What is a public pur-

pose has given rise to no little judicial consideration.

Courts, as a rule, have attempted no judicial definition

of a ‘public’, as distinguished from a ‘private’ pur-

pose, but have left each case to be determined by its

own peculiar circumstances. Gray, Limitations of Tax-

ing Power, sec. 176, ‘Necessity alone is net the test by

which the limits of State authority in this direction are

to be defined, but a wise statesmanship must look be-

yond the expenditures which are absolutely needful to

the continued existence of organized government, and

embrace others which may tend to make that govern-

ment subserve the general well-being of society, and

advance the present and prospective happiness and

prosperity of the people.’ Cooley, Justice, in People

v. Salem, 20 Michigan, 452. Questions of policy are

not submitted to judicial determination, and the courts

have no general authority of supervision over the exer-

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cise of discretion which under our system is reposed in

the people or other departments of government.”’

Williams v. Mayor etc. of Baltimore, 289 U. S. 36, con-

strued a statute of the State of Maryland exempting a single

railroad which was insolvent. The Circuit Court of Appeals

held the statute in violation of the Fourteenth Amendment

to the Federal Constitution on the grounds that it granted

special privilege to a single railroad. This Court reversed

the Cireuit Court of Appeals and in the opinion, 289 U. S.

at 42, said:

‘‘Tt is not the function of a court to determine whether

the public policy that finds expression in legislation of

this order is well or ill conceived. Otis v. Parker, 187

U. S. 696, 609; Missouri Kansas & Texas Ry. Co. v.

May, 194 U. 8. 267; Sproles v. Binford, 286 U. 8. 374,

388, 389. The judicial function is exhausted with the

discovery that the relation between means and end is

not wholly vain and fanciful, an illusory pretense.

Within the field where men of reason may reasonably

differ, the legislature must haveits way. Otis v. Parker,

supra. Nor in marking out that field will a court be

forgetful of presumptions that help to fix the boun-

daries. ‘As underlying questions of fact may eondi-

tion the constitutionality of legislation of this charac-

ter, the presumption of constitutionality must prevail

in the absence of some factual foundation of record

for overthrowing the statute.’ ”’ (Italics supplied.)

In Carmichael v. Southern Coal & Coke Co., 301 U. Ss.

495, this Court construed the Alabama Unemployment Com-

pensation Act as levying a tax for a public purpose. In

the opinion, 301 U. S. at 514, 515, the Court said:

“The states, by their constitutions and laws, may

set their own limits upon their spending power, see

Loan Association v. Topeka, 20 Wall. 655; ef. Parkers-

burg v. Brown, 106 U. S. 487; Cole v. La Grange, 113

U. 8. 1, but the requirements of due process leave free

scope for the exercise of a wide legislative discretion

in determining what expenditures will serve the public

interest.

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70

This Court has long and consistently recognized that

the public purposes of a state, for which it may raise

funds by taxation, embrace expenditures for its gen-

eral welfare. Fallbrook Irrigation Dist. v, Bradley,

supra, 161; Green v. Frazier, supra, 240, 241. The

existence of local conditions, which, because of their

nature and extent, are of concern to the public as a

whole, the modes of advancing the public interest by

correcting them or avoiding their consequences, are

peculiarly within the knowledge of the legislature, and

to it, and not to the courts, is committed the duty

and responsibility of making choice of the possible

methods. See Fallbrook Irrigation Dist. v. Bradley,

supra, 160; Jones v. Portland, supra, 221, 224, 225;

Green v. Frazier, supra, 239, 240. As with expendi-

tures for the general welfare of the United States,

United States v. Butler, 297 U. S. 1, 67; Helvering v.

Davis, post, p. 619, whether the present expenditure

services a public purpose is a practical question ad-

dressed to the law-making department, and it would

require a plain case of departure from every public

purpose which could reasonably be conceived to justify

the intervention of a court.’’ (Italics supplied.)

Certainly, it is clear at first giance that legislative enact-

ments to aid and encourage agriculture, and to promote

the reorganization of school districts are a part of the public

policy of the State of Iowa. As pointed out by the Supreme

Court of Iuwa, 35 N. W. 2d at 76, the Constitution of Iowa

contains the express mandate that ‘‘The General Assembly

shall encourage, by all suitable means, the promotion of

intellectual, scientific, moral, and agricultural improve-

ment. Art. IX, 2d div., see. 3.” There is, in fact, a com-

pact with the Government of the United States to do that

very thing.

Can this Court say that a law enacted for the very pur-

poses of that mandate from the people of Iowa and that com-

pact with the Federal Government was not enacted for a

public purpose as a part of the public policy of the State of

Iowa in the face of the determination of the legislature and

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every Court of Lowa, including the Court of highest resort

that the statute was enacted as a part of the public policy

of the State of Iowa ‘‘to encourage agriculture’ and ‘‘the

furtherance of the reorganization of school districts in order

to improve our educational system’’? See 35 N. W. 2d at

81.

” Contatale, at ‘‘first blush” it is apparent that the legis-

lative enactment challenged in the case at bar is a valid

exercise of legislative power, and no substantial Federal

question is raised under Section 1, Fourteenth Amendment

to the Federal Constitution.

In Sage Stores Co. v. Kansas, 323 U. S. 32, this Court

sustained a statute of the State of Kansas prohibiting the

sale of ‘filled milk’’. In the opinion, 323 U.S. at 34, 35, this

Court said :

‘Apparently the objection under the equal protec-

tion clause is that the Kansas statute permits the sale

of skimmed milk which has less calories and fewer

vitamins than petitioners’ compound and yet forbids

the sale of the compound despite its higher nutritive

value. Such an objection is governed by the same

standards of legislation as objections under the due

process clause. It is a matter of classification and the

power of the legislature to classify is as broad as its

power to prohibit. A violation of the Fourteenth

Amendment in either case would depend upon whether

there is any rational basis for the action of the legis-

lature.”’

In Asbury Hospital v. Cass County, 326 U. 8S. 207 this

Court sustained a law of North Dakota which excepted from

compulsory sale lands acquired, lands owned by corpora-

tions whose business was dealing in farm lands and lands

belonging to certain cooperative corporations. In sustain-

ing the classifications, this Court, 326 U.S. at 214, 215, said:

‘The North Dakota Legislature may have thought

that its policy with reference to corporate-owned agri-

emmy

cultural lands would be advanced by permitting corpo-

rations engaged in the business of dealing in farm lands

to acquire and sell without restriction lands forced

upon the market by the statute. It could have t

that its policy would be in part defeated by withholding

authority from farm cooperatives to acquire and use

farm lands for agricultural purposes. Cf. United

States v. Rock Royal Co-op., 307 U. S. 533, 562-564.

Statutory discrimination between classes which are in

fact different must be presumed to be relevant to a per-

missible legislative purpose, and will not be deemed

to be a denial of equal protection if any state of facts

could be conceived which would support it. Rast v.

Van Deman & Lewis Co., 240 U. 8. 342, 357 ; Carmichael

v. Southern Coal Co., 301 U.S. 495, 509, and cases cited.”

(Italics supplied.)

In Everson v. Board of Education, 330 U. 8. 1, this Court

sustained a law of New Jersey which provided for paying

costs of transporting pupils to school, including those who

attend parochial or church schools, and to reimburse parents

for transportation costs paid. This law was attacked on

the grounds that it appropriated tax funds to private pur-

poses in violation of the Fourteenth Amendment to the

Federal Constitution.

In the opinion, 330 U. S. 1 at 6, 7, this Court said:

‘*The fact that a state law, passed to satisfy a public

need, coincides with the personal desires of the indi-

viduals most directly affected is certainly an inadequate

reason for us to say that a legislature has erroneously

appraised the public need.

It is true that this Court has, in rare instances, struck

down state statutes on the ground that the purpose for

which tax-raised funds were to be expended was not a

public one. Loan Association v. Topeka, 20 Wall. 655;

Parkersburg v. Brown, 106 U. 8S. 487; Thompson v. Con

solidated Gas Utilities Corp., 300 U. 8S. 55. But the

Court has also pointed out that this far-reaching au-

thority must be exercised with the most extreme caution.

Green v. Frazier, 253 U. 8. 233, 240. Otherwise, a state’s

72

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73

power to legislate for the public welfare might be seri-

ously curtailed, a power which is a primary reason for

the existence of states. Changing local conditions

create new local problems which may lead a state’s

people and its local authorities to believe that laws

authorizing new types of public services are necessary

to promote the general well-being of the people. The

Fourteenth Amendment did not strip the states of their

power to meet problems previously left for individual

solution. Davidson v. New Orleans, 96 U. 8. 97, 103-

104; Barbier v. Connolly, 113 U. 8. 27, 31-32; Fallbrook

Irrigation District v. Bradley, 164 U. 8. 112, 157-158.

It is much too late to argue that legislation intended

to facilitate the opportunity of children to get a secular

education serves no public purpose. Cochran v. Louisi-

ana State Board of Education, 281 U. 8. 370; Holmes, J.,

in Interstate Ry. v. Massachusetts, 207 U.S. 79, 87. See

opinion of Cooley, J., in Stuart v. School District No. 1

of Kalamazoo, 30 Mich. 69 (1874). The same thing

is no less true of legislation to reimburse needy parents,

or all parents, for payment of the fares of their children

so that they can ride in pubiic busses to and from schools

rather than run the risk of traffic and other hazards

incident to walking or ‘hitchhiking.’ See Barbier v.

Connolly, swpra, at 31. See also cases collected 63

A. L. R. 413; 118 A. L. R. 806. Nor does it follow that

a law has a private rather than a public purpose because

it provides that tax-raised funds will be paid to reim-

burse individuals on account of money spent by them

in a way which furthers a public program. See Car-

michael v. Southern Coal & Coke Co., 301 U. S. 495, 518.

Subsidies and loans to individuals such as farmers and

home-owners, and to privately owned transportation

systems, as well as many other kinds of businesses, have

been commoaplace practices in our state and national

history.’’ (Italics supplied)

It is perfectly clear, at first blush, that the classifications

in the legislative enactment attacked in the case at bar are

in no way in violation of the Fourteenth Amendment; that

the act was enacted in aid of agriculture (since it applies to

all agricultural and horticultural land in the state except

Be

—-

tracts of less than 10 acres); that the classification at 10

acres is within legislative discretion; that the act was en.

acted for a ‘‘publie purpose’’ as a part of the ‘‘ public policy

of the state’’ to encourage reorganization of school dis-

tricts; that it has been so construed by the Court of highest

jurisdiction in the State of Iowa as well as by the lower

Court; that under the decisions of this Court these deter-

minations are entitled to great respect by reason of local

conditions, and the public policy of the State; that there is

no substantial Federal question raised under Section 1, 14th

Amendment to the Federal Constitution; and that this Court

should decline jurisdiction in this case.

74

Wuenrerore, Appellees pray that an order be entered by

this Court sustaining their Resistance to the Jurisdiction in

this cause, and for their costs.

Rosert L. Larson,

Attorney General of Iowa,

Des Moines, lowa;

Dow Hiss,

First Assistant Attorney

General of lowa,

Des Moines, Iowa;

Eart F. Wisvom,

Special Assistant Attorney

General of Iowa;

1114 Register & Tribune Building,

Des Moines, Iowa;

Bert F. Wispom,

1.14 Register & Tribune Building,

Des Moines, Iowa;

F. H. Becker,

County Attorney of Dubuque County,

Dubuque, Iowa,

Cownsel for Appellees.

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APPELLEES’ MOTION TO DISMISS OR AFFIRM

Come now all of the Appellees, by Robert L. Larson, At-

torney General of lowa, Don Hise, First Assistant Attorney

General of Iowa, Earl F. Wisdom, Special Assistant Attor-

ney General of lowa, Bert F. Wisdom, and F. H. Becker,

County Attorney of Dubuque County, Iowa, their counsel,

and respectfully move this Court to dismiss the appeal taken

herein by Laura Dickinson, or affirm the decision and judg-

ment of the Supreme Court of Iowa rendered and filed

herein and as grounds therefor states:

75

(1) That the appeal is taken for the purpose of delay

only;

(2) That the cause shows upon its face that no substantial

Federal question is presented for review under Section One,

Fourteenth Amendment to the Federal Constitution;

(3) That, although the record in said cause may show that

this Court has technical jurisdiction, it is manifest that the

questions upon which the appeal is taken and the errors

cited by said Appellant are so unsubstantial that further

argument is unnecessary.

Avrnorrries ty Support or Motion

Rule 7, U. 8S. Supreme Court Rules;

Rule 12, Par. 3, U.S. Supreme Court Rules;

Missouri Pacific Ry. Co. v. Castle, 224 U. S. 541 at 544,

56 L. Ed. 875 at 878, 32 Sup. Ct. 606 at 608;

Chicago R.I. & P. Ry. Co. v. Devine, 239 U. 8. 52 at 54,

60 L. Ed. 140 at 142, 36 Sup. Ct. 27 at 28;

Boston v. Jackson, 260 U.S. 309 at 314, 67 L. Ed. 274 at

282, 43 Sup. Ct. 129 at 131;

—

76

Hoages v. Snyder, 261 U. S. 600 at 601, 67 L. Ed. 819 at

821, 43 Sup. Ct. 435 at 436.

In Missouri Pacific Ry. Co. v. Castle, 224 U. S. 541, at 544,

this Court said:

‘*Defendant in error moves to affirm the judgment

under subdivision 5 of Rule 6. The motion we think

should prevail, since the questions urged upon our

attention as a basis for a reversal of the judgment have

been so plainly foreclosed by decisions of this court as

to make further argument unnecessary.’’

This is the universal rule in this Court.

In further support of the Motion, see Authorities cited

under Proposition II to Proposition VI, inclusive, of Appel-

lees’ ‘‘ Brief in Suport of Resistance to Appellant’s State-

ment of Jurisdiction.”’

The cases cited and quoted in Proposition II to Proposi-

tion VI, inclusive, of Appellees’ ‘‘ Resistance to Appellant’s

Statement of Jurisdiction’’ show conclusively that the clas-

sifications made by the legislative enactment challenged

herein are reasonable and proper and within public policy

of the State of Iowa throughout its history. Said citations

from the opinions of this Court show conclusively that the

errors upon which Appellant bases her claim for reversal

have been so plainly foreclosed by the decisions of this Court

as to make further argument unnecessary.

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a

77

Wuererore, Appellees pray that the appeal herein be dis-

missed; or in the alternative, that the decision and judgment

of the Supreme Court of Iowa be affirmed. .

Rosert L. Larson,

Attorney General of Iowa,

Des Moines, lowa;

Dow Hise,

First Assistant Attorney

General of Iowa,

Des Moines, Iowa;

Eaart F. Wispom,

Special Assistant Attorney

General of lowa,

1114 Register & Tribune Building,

Des Moines, lowa;

Bert F. Wispom,

1114 Register & Tribune Building,

Des Moines, Iowa;

F. H. Becker,

County Attorney of Dubuque County,

Dubuque, Iowa,

Counsel for Appellees.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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