Opinion
No. 26701. En Banc.
July 21, 1937.
LICENSES — TAXATION — UNIFORMITY — EXCISE OR PROPERTY TAX. A tax upon the use of personal property is an excise tax and is not subject to the restrictions of the Federal constitution as to equal protection of the laws or the demands of equality and uniformity in taxation under the fourteenth amendment to the state constitution.
CONSTITUTIONAL LAW — TAXATION — RIGHT TO ATTACK TAX — PERSONS ENTITLED TO RAISE CONSTITUTIONAL QUESTIONS. The county can not complain of the exemption of "dealers' stocks" from the operation of an excise tax on automobiles as discriminatory and unreasonable; since it suffers no injury and only the injured party may challenge its constitutionality.
SAME. Diminution of county revenues by the withdrawal of taxes on privately owned automobiles is damnum absque injuria, since the county has no inherent powers of taxation.
TAXATION — POWER OF LEGISLATURE — CHANGE IN METHOD OF TAXATION. An act designed to change the character of an ad valorem tax on motor vehicles and the method of collecting it is not an exemption statute, and is within the plenary power of the legislature.
STATUTES — AMENDMENT — SETTING FORTH ACT AMENDED. Laws of 1937, chapter 228, § 12, simply identifying the levy of Rem. Rev. Stat., § 4936, and imposing a limitation on school taxes, is not an amendment of all former laws relating to the limitation on tax levies; and Const. Art. II, § 37, requiring an amended statute to be set out in full, does not apply.
SAME — REPEAL — IMPLIED REPEAL — ACTS PASSED AT SAME SESSION. Laws 1937, chapter 228, § 12, being the later enactment limiting tax levies, constitutes a repeal of Rem. Rev. Stat., § 4936, as amended by Laws 1937, chapter 226, § 2, so far as it relates to the levy authorized.
See 103 A.L.R. 97; 5 Am. Jur. 574.
Appeal from a judgment of the superior court for Thurston county, Wilson, J., entered April 27, 1937, upon findings in favor of the defendant, in an action in mandamus, tried to the court. Affirmed.
Smith Troy, E.A. Philbrick, and John S. Lynch, Jr., for appellants.
The Attorney General and R.G. Sharpe, Assistant, for respondent.
This action challenges the constitutionality of chapter 228, Laws of 1937, p. 1167, an act levying an excise tax on "Private Motor Vehicles." The salient features of the act, in so far as we are here concerned, are as follows: After defining the term "private motor vehicle" in § 1, p. 1167, it is provided in § 2, p. 1167, that an excise tax shall be imposed "for the privilege of using" any private motor vehicle in the amount of "one and one half (1.5) per centum of the fair market value" of such vehicle. Section 6, p. 1169, provides that the tax imposed shall be in addition to all other licenses and taxes otherwise imposed, but declares: "Such vehicles are hereby exempted from all ad valorem taxes for state, county or municipal purposes." The act further provides (§ 5, p. 1169) that the county auditor shall collect the tax and remit (§ 9, p. 1170) it to the state treasurer. The latter section further provides:
"All revenue derived from the tax imposed by this act shall upon receipt thereof be credited . . . to the state school equalization fund."
Section 10, p. 1170, provides that dealers' stocks of such motor vehicles shall be listed by county assessors and assessed for ad valorem taxes as other personal property. Section 11, p. 1171, provides that the first tax to be exacted by the act shall be for the calendar year 1938, and that, except as provided in § 10, no private motor vehicles shall be listed or assessed for ad valorem taxes "for the year 1937 or any succeeding year so long as this act remains in effect." Section 12, p. 1171, then provides for allocation of the revenues derived from the tax to counties entitled thereto for common school support, at the same time and upon the same basis as the state school equalization fund is required to be apportioned to counties under Rem. Rev. Stat., § 4936 (Laws 1933, chapter 28, § 12, p. 171). Section 12 further provides that the levy required to be made under Rem. Rev. Stat., § 4936, shall not exceed one and one-fourth mills on each dollar of assessed valuation.
The relators, the county commissioners of Thurston county, brought this action in mandamus to compel the county assessor to list and assess private motor vehicles, as defined in the act, for ad valorem taxes for the year 1937. From judgment dismissing the action, relators appeal.
Appellants attack the validity of the act on five grounds.
[1] First: It is urged that the exaction is a property tax — not an excise — and therefore denies "equal protection of the laws" guaranteed by the fourteenth amendment of the constitution of the United States, and the demands of equality and uniformity in taxation under the fourteenth amendment to the state constitution. That a tax upon the use of personal property is an excise, is no longer open to question in this state. Morrow v. Henneford, 182 Wn. 625, 47 P.2d 1016; Vancouver Oil Co. v. Henneford, 183 Wn. 317, 49 P.2d 14; Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524. Being an excise, the tax is not objectionable upon the grounds suggested. Unless the exaction is inherently oppressive, or the classification of the persons or objects affected is unreasonable, such a tax is valid. State Board of Tax Commissioners v. Jackson, 283 U.S. 527, 51 S.Ct. 540, 73 A.L.R. 1464. It is not contended that the tax is inherently oppressive.
[2] Second: But it is contended that the classification with respect to "dealers' stocks" is discriminatory and unreasonable. If it be — which we do not decide — it is a defect of which relators may not be heard to complain. For to the extent that the act exempts "dealers' stocks" from its operation, the county, as a taxing unit, suffers no injury, as such stocks are left subject to assessment for ad valorem taxes by the county. Only one who is injuriously affected by an act may challenge its constitutionality. Vance Lumber Co. v. King County, 184 Wn. 402, 51 P.2d 623.
[3] Third: We understand the relators to contend, however, that the county, as a taxing district, is injured by the exemption of private motor vehicles (except dealers' stocks) from ad valorem taxation. Conceding that county revenues may be diminished by the withdrawal of private motor vehicles from ad valorem taxation, the consequence to the county may be said to be damnum absque injuria. For the county has no inherent powers of taxation. Its power to tax derives wholly and solely from legislative enactment. Great Northern R. Co. v. Stevens County, 108 Wn. 238, 183 P. 65; State ex rel. School District v. Clark County, 177 Wn. 314, 31 P.2d 897; Love v. King County, 181 Wn. 462, 44 P.2d 175.
[4] Fourth: It is suggested that exemption of "private motor vehicles" from ad valorem taxes of itself constitutes discrimination. But this is in no sense an exemption statute. It is simply designed to change the character of the tax, the method of levying and collecting it, and the disposition of the revenues flowing from it. This, the legislature has plenary power to do, under the fourteenth amendment to the state constitution.
[5] Fifth: It is further urged that, in violation of Art. II, § 37, of the state constitution, § 12 of the act attempts to amend Rem. Rev. Stat., § 4936, by reference merely. The latter section is § 5, sub-chapter 9, of the school code (chapter 97, Laws 1909, p. 322), which relates to school revenues. In substance, § 5 (Rem. Rev. Stat., § 4936) requires the county commissioners of each county to levy a tax on all taxable property in the county sufficient to produce the sum of ten dollars for each child of school age, "provided, that such tax .. . shall in no case exceed five mills on each dollar, at the assessed valuation." The section (Rem. Rev. Stat., § 4936) again appears as § 12, chapter 28, Laws of 1933 — an act providing for school maintenance. There it appears with an amendment (with which we are not concerned), and without limiting the amount of the levy to be made. The section (Rem. Rev. Stat., § 4936) again appears in amended form as § 2, chapter 226, Laws of 1937, p. 1135, creating a fund to be known as the "State School Equalization Fund." As it appears here, the section again carries a limitation on the levy — this time not to "exceed two mills on each dollar of the assessed valuation." Section 12, chapter 228, Laws of 1937, as we have seen, limits the levy to one and one-fourth mills on the dollar at the assessed valuation.
The reference to Rem. Rev. Stat., § 4936, contained in § 12, chapter 228, Laws of 1937, is in no sense an attempt at an amendment. It does not even refer to § 4936, as amended by § 2, chapter 226, Laws of 1937. It (§ 12, chapter 228) simply identifies the levy authorized by Rem. Rev. Stat., § 4936, and imposes a limitation, which was absent in the section as amended by § 12, chapter 28, Laws of 1933. In essence, the reference to Rem. Rev. Stat., § 4936, constitutes no more of an amendment than the forty mill limit laws (chapter 1, Laws 1937, p. 3; chapter 2, Laws 1935, p. 8) constitute amendments of all former laws relating to limitation on tax levies. To such a situation, the constitutional provision (Art. II, § 37), requiring an amended statute to be set out in full, does not apply. See: Holzman v. Spokane, 91 Wn. 418, 157 P. 1086; In re Peterson's Estate, 182 Wn. 29, 45 P.2d 45.
[6] In effect, § 12, chapter 228, Laws of 1937, constitutes a repeal of that portion of Rem. Rev. Stat., § 4936, as amended by § 2, chapter 226, Laws of 1937, in so far as it relates to the limitation of the levy authorized. For in point of time, § 12, chapter 228, is the latest enactment with respect to placing a limitation on the levy authorized by Rem. Rev. Stat., § 4936, as amended. And the rule is applicable that, of conflicting provisions in different statutes passed at the same session of the legislature, the provisions of the act last passed effect a repeal of conflicting provisions in the earlier act. Commissioners of King County v. Davies, 1 Wn. 290, 24 P. 540; Whitfield v. Davies, 78 Wn. 256, 138 P. 883.
Judgment affirmed.
MAIN, HOLCOMB, BEALS, MILLARD, GERAGHTY, ROBINSON, and TOLMAN, JJ., concur.
I concur in the result, on the second, third and fifth grounds assigned in the opinion.