Opinion
No. 33380.
April 29, 1935.
Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; James D. Womack, Judge.
Suit for mandatory injunction by the State, on the relation by Gaston L. Portorie, Attorney General against Alice Lee Grosjean, Supervisor of Public Accounts, in which the Standard Oil Company of Louisiana intervened. A rule nisi issued to show cause why a preliminary injunction should not issue, and from a judgment on a trial on the rule and on the merits recalling the rule nisi and dismissing the suit, plaintiff appeals.
Affirmed.
Gaston L. Porterie, Atty. Gen., Geo. M. Wallace, First Asst. Atty. Gen., and James O'Connor, Second Asst. Atty. Gen., for appellant.
F.A. Blanche, of Baton Rouge, for supervisor of public accounts.
T.M. Milling, F.L. Hargrove, and A.M. Curtis, all of New Orleans, for Standard Oil Co. of Louisiana, intervener.
Huey P. Long, of New Orleans, amicus curiæ.
Act No. 15 of the Third Extra Session of 1934, approved December 21, 1934, is an act imposing occupation-license taxes upon those engaged in various businesses, trades, and professions.
Section 41 of this act levies a tax of 5 cents per barrel of 42 gallons upon every person, firm, corporation, etc., "engaging, being occupied or continuing in the business of refining, heating, cracking, or distilling petroleum, crude oil or products thereof, and manufacturing, refining or distilling products out of said petroleum, crude oil or products thereof."
The tax is due and payable quarterly, the first payment being due March 31, 1935. Paragraphs (f) and (g), § 41, Act No. 15 of the Third Extra Session of 1934.
At its Extra Session of 1935, by House Concurrent Resolution No. 1, designated as Act No. 25 of the First Extra Session of 1935, the Legislature authorized the Governor to suspend the provisions of section 41 in so far as the same levies or imposes a tax in excess of 1 cent per barrel.
By section 2 of Act No. 5 of the First Extra Session of 1935, the Legislature also authorized the Governor, by adding a new section, 41 1/2, to Act No. 15 of the Third Extra Session of 1934, to suspend section 41 by placing the tax at 1 cent per barrel of 42 gallons, "under the authority vested in him by Concurrent Resolution No. 1."
On March 2, 1935, the Governor issued his proclamation suspending the law, as authorized, for a period of 8 months from January 9, 1935, the effective date of Act No. 15 of the Third Extra Session of 1934, and ending September 9, 1935.
Asserting that the proclamation, and House Concurrent Resolution No. 1 (Act No. 25 of the First Extra Session of 1935) and section 2 of Act No. 5 of the First Extra Session of 1935, adding section 41 1/2, were unconstitutional, and that the state of Louisiana has a pecuniary interest in the whole of the tax levied by Act No. 15 of the Third Extra Session of 1934, the state of Louisiana, on the relation of the Attorney General, filed this suit for a mandatory injunction to compel the supervisor of public accounts, the officer charged with the collection of the tax, to collect the full amount levied by Act No. 15, 5 cents per barrel, and to restrain that official from collecting less than the full amount of the tax. A rule nisi issued to show cause why a preliminary injunction should not issue.
On the date set for the trial of the rule, the supervisor of public accounts answered, alleging the validity of the proclamation made by the Governor, and the constitutionality of House Concurrent Resolution No. 1 and of section 2 of Act No. 5 of the First Extra Session of 1935, adding section 41 1/2, and averring her intention to collect a 1 cent refining occupational tax in this case.
The Standard Oil Company of Louisiana intervened, and also alleged the validity of the proclamation made by the Governor, and the constitutionality of the Resolution, and of section 2 of Act No. 5 of the First Extra Session of 1935, adding section 41 1/2.
Answers were filed by the state and by the supervisor of public accounts to the intervention of the Standard Oil Company. The whole matter was then put at issue by the various pleadings and was tried on the rule and on the merits.
The trial judge rendered a judgment, maintaining the validity of the proclamation made by the Governor, and the constitutionality of House Concurrent Resolution No. 1, and of section 2 of Act No. 5 of the First Extra Session of 1935, adding section 41 1/2 to Act No. 15 of the Third Extra Session of 1934, etc., and recalling the rule nisi, and dismissing the suit of the state, and from this judgment the state has appealed.
(1) The Governor is authorized to make the suspension in this case by proclamation "pursuant to the authority vested in the Legislature by Section 5 of Article XIX of the Constitution," which provides that: "No power of suspending laws of this State shall be exercised unless by the Legislature, or by its authority."
The Attorney General has attacked the constitutionality of House Resolution No. 1 and of section 2 of Act No. 5 of the First Extra Session of 1935, adding the new section 41 1/2 to Act No. 15 of the Third Extra Session of 1934, on the ground that both authorize the Governor, "in his discretion," to make the suspension, and that the Legislature has no power to vest the authority to suspend a law in any person to be exercised at his discretion.
The two controlling paragraphs of House Concurrent Resolution No. 1 (Act No. 25 of the First Extra Session of 1935) are as follows:
"Whereas, for the purpose of securing better employment and promoting more business in the United States of America it is advisable that the Chief Executive of the State be vested with the power to suspend the provisions of the law insofar as the same provides for the collection of said occupation-license tax in excess of 1¢ per barrel, and ***
"Be it further resolved by the Legislature of Louisiana, the House of Representatives and the Senate concurring, that the Governor of the State be and he is hereby empowered and authorized to suspend the provisions of sub-division (b) of Section 41 of Act No. 15 of the Third Extraordinary Session of the Legislature of Louisiana, insofar as the same levies or imposes an occupation-license or privilege tax for the manufacturing, refining, heating, cracking or distilling petroleum, crude oil or products thereof in excess of one cent (1¢) per barrel of forty-two (42) gallons; that the said Governor shall by proper proclamation or proclamations make such suspension on such dates or occasions and for such period or periods of time or duration as may be prescribed by him in the proclamation making such suspension, such suspensions not to be effective beyond noon of the twentieth day after the adjournment of the Regular Session of the Legislature of Louisiana for the year 1936, and. * * *" (Italics ours.)
It is true that the Governor is authorized, "in his discretion," to make the suspensions, but it will appear hereafter in this opinion that the advisability and the necessity for same are controlled by "conditions, circumstances and emergencies" stated in Resolution No. 1.
The Legislature itself, in Concurrent Resolution No. 1, has fixed the reduction of the tax to 1 cent, and the Governor has no discretion whatever to fix the tax at 2 cents or 3 cents or 4 cents, or at anything that he may wish between 1 cent and 5 cents. The only discretion conferred upon the Governor is that he may "make such suspension on such dates or occasions and for such period or periods of time or duration as may be prescribed by him in the proclamation making such suspension," which are limited in duration to "noon of the twentieth day after the adjournment of the Regular Session of the Legislature of Louisiana for the year 1936."
The legislative reason and intent in passing Resolution No. 1, designated as Act No. 25 of the First Extra Session of 1935, is specifically declared, in the preamble of the resolution, to be "for the purpose of securing better employment and promoting more business in the United States," and that "it is advisable that the Chief Executive * * * be vested with the power to suspend the provisions of the law in so far as the same provides for the collection of said occupation-license tax in excess of 1¢ per barrel"; that "the advisability of and the necessity for the same is controlled by conditions, circumstances and emergencies which arise and subside from time to time and which are varied and modified in such manner and to such extent as renders it a matter of practical impossibility for reasonable or satisfactory regulation or suspension to be made by positive provision of the law"; and that the Legislature "does by this Act repose confidence and authority in the Governor of the State as a practical means of effectuating such desired objects." (Italics ours.)
Necessarily, in making such suspensions, the Governor must consider the "conditions, circumstances and emergencies" enumerated in the act, and the fact-finding involved under this general authority covers a large field. The suspensions which the Governor may make are not left, therefore, to his arbitrary discretion.
(2) Under section 41 1/2, the new section added to Act No. 15 of the Third Extra Session of 1934, the General Occupation-License Tax Law, the Governor may make suspensions, "under the authority vested in him by Concurrent Resolution No. 1 of the First Extra Session of the Louisiana Legislature for the year 1935."
It is provided in section 41 1/2 that "no tax in excess of 1¢ per barrel shall ever accrue or be collected for the period of suspension named in the said proclamation and no tax liability in excess of 1¢ per barrel of 42 gallons shall be incurred by any person, firm or corporation, subject to the provisions of said Section 41 during the period of suspension." (Italics ours.)
It is clear, therefore, that, in section 41 1/2, the Legislature itself has also limited the tax to 1 cent per barrel, during the period of suspension.
The case of Lacoste v. Department of Conservation, 151 La. 909, 92 So. 381, later affirmed by the Supreme Court of the United States, 263 U.S. 545, 44 S. Ct. 186, 68 L. Ed. 437, is a case directly in point.
In the Lacoste Case it is said by the court: "An inspection of section 3 of Act No. 135 of 1920 discloses the fact that the so-called severance tax is fixed by said section at two cents on the dollar on the value of all skins or hides taken from any wild fur-bearing animal or alligators in this state. Said act does not, therefore, delegate to the Department of Conservation of the state the taxing power of the Legislature, which has itself fixed in said section with exactness the rate of said so-called tax. The quantum of said severance tax is not then left to the arbitrary discretion or determination of said Department, which is without authority under said section to either increase or diminish the rate established by the statute." 151 La. 909, page 923, paragraph 3, 92 So. 381, 386. (Italics ours.)
There is no uncertainty here as to the legislative intent and policy; no discretion is attempted to be given to the Governor to determine what the policy shall be; the law imposes upon him no duties, and confers upon him no powers except to execute the law. When the Governor proclaims a change of tax, the new rate does not come into being as a result of the proclamation, but the proclamation and the rate of the tax result from the law.
It is also well to remember that in determining what the Legislature may do in seeking assistance from another branch of the government, "the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental coordination." (Italics ours.) See J.W. Hampton, Jr., Co. v. United States, 276 U.S. 394, 48 S. Ct. 348, 351, 72 L. Ed. 624.
(3) The Lacoste Case is also direct authority against the contention of the Attorney General that the proclamation made by the Governor, and House Resolution No. 1, and section 2 of Act No. 5 of the First Extra Session of 1935, adding the new section 41 1/2, are unconstitutional and invalid, since there can be no delegation to a state department, or a state board or agency of the taxing power of the state, when the rate of tax has been fixed by the Legislature itself, and the powers delegated are purely executive, as in the case at bar.
It is apparent, therefore, that neither the proclamation nor the resolution, nor the additional section 41 1/2, violates section 1, article 10 of the Constitution, as amended by Act No. 81 of 1934, and which declares that: "The power of taxation shall be vested in the Legislature; shall never be surrendered, suspended or contracted away." (Italics ours.)
Nor has "the power of taxation" vested in the Legislature been suspended in this case since, at the expiration of the present proclamation by the Governor, the tax will again come back to 5 cents per barrel, and it will remain there, unless, under the conditions as established by the Legislature, it becomes again the duty of the Governor to reissue a second proclamation, leaving the tax at 1 cent per barrel. This is proof also that the "power of taxation" has not been surrendered. Had it been surrendered, the rate of taxation could never come back to 5 cents.
By the same argument, the tax has not been suspended because the tax comes back to 5 cents in the absence of further proclamation; and, in truth, remains at 1 cent during the period of proclamation. Therefore, there has been no suspension of or surrender of "the taxing power" vested in the Legislature.
Similarly, it is evident that the power of taxation was not contracted away, for it never is extinguished and arises anew to its maximum at the expiration of each proclamation.
(4) It is provided by section 13 of article 4 of the Constitution that: "The Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishment, in whole or in part, of the indebtedness, liability or obligation of any corporation or individual to the State, or to any parish or municipal corporation thereof."
The Attorney General contends that the Legislature has no power to remit the payment of the tax in this case.
House Concurrent Resolution No. 1 became effective on its final passage by the Legislature, by the concurrence of the Senate on March 1, 1935.
On March 2, 1935, the Governor issued his proclamation suspending the law as authorized for a period of 8 months, from January 9, 1935, the effective date of Act No. 15 of the Third Extra Session of 1934, which levies an annual tax of 5 cents per barrel on the business of refining oil, etc., payments to be made quarterly.
Act No. 5 of the First Extra Session of 1935, § 2, adding section 41 1/2 to Act No. 15 of the Third Extra Session of 1934, did not go into effect until March 22, 1935. By assuming that the tax accrued from day to day, it is contended by the Attorney General that, even admitting the validity of the Concurrent Resolution and of Act No. 5, the tax accrued from January 9, 1935, to March 22, 1935. The supervisor of public accounts, in her answer, asserts, to the contrary, that the tax imposed by Act No. 15 of the Third Extra Session of 1934 is a quarterly tax, and does not become due and payable from day to day, but only becomes due and payable at the end of each quarter, March 31, 1935, etc.
It is provided in the act that the tax levied is "an annual occupation-license or privilege tax, to be paid and collected quarterly as hereinafter provided, in the amount and to be calculated, computed, measured and ascertained," and "shall be computed according to the amount of products * * * at the rate of five cents (5¢) per barrel of forty-two (42) gallons." Section 41 (a) and (b), Act No. 15 of the Third Extra Session of 1934.
It is further provided that "Every person, firm, association of persons, partnership, or corporation," subject to the tax, "shall, within thirty (30) days after the expiration of each quarter-annual period expiring, respectively, on the last day of March, June, September and December of each year, file with the Supervisor of Public Accounts a statement, under oath on forms prescribed by him, of the business and operations conducted * * * during the last preceding quarter-annual period, or part of quarter-annual period, showing the amount of products of petroleum, crude oil, or products thereof so manufactured, refined or distilled; the amount, quantity and number of barrels of products of petroleum, crude oil, or products thereof obtained thereby or produced therefrom; the locations, capacities and methods of his, its, or their respective plants, and any and all such other reasonable and necessary information pertaining thereto, as the Supervisor of Public Accounts may require for the proper enforcement of the provisions of this act." Section 41 (f) of Act No. 15, Third Extra Session of 1934. (Italics ours.)
It is further provided in paragraph (g) of the above act: "That at the time of rendering such quarter-annual report each such person, firm, association of persons, partnership or corporation shall pay to the Supervisor of Public Accounts the occupation-license or privilege tax, calculated, computed, measured and ascertained in the manner hereinabove provided." (Italics ours.)
Considering the above provisions of the act, the contention of the supervisor of public accounts that the tax does not accrue day by day, but becomes due and payable at the end of each quarter, is, in our opinion, clearly correct, for the tax is not even ascertainable before that time.
We do not find Succession of Popp, 146 La. 464, 83 So. 765, 26 A.L.R. 1446, relied upon by the Attorney General, contrary to the conclusion which we have reached.
In that case Mrs. Popp died in Mississippi, where she and her husband were residing, in 1910, leaving property situated in Louisiana, consisting of securities. The state of Louisiana sought to collect an inheritance tax from her husband, and the case involved the reduction of this tax from 5 per cent., established by Act No. 109 of 1906, and reduced to 2 per cent. by Act No. 42 of 1912. Mrs. Popp died two years before the reduction had taken place, and, as an inheritance tax is imposed on the right to inherit, and becomes due and payable immediately on the death of the person from whom the inheritance descends, the tax claimed by the state in that case had already accrued under the 5 per cent. rate fixed by Act No. 109 of 1906. The decision in the Popp Case is correct, but is not applicable, for obvious reasons, to the case at bar.
Besides, the article and section of the Constitution, upon which the Attorney General bases his contention, means, in our opinion, that no isolated industry or individual can be selected from the body politic and preferred with rebates or special advantages.
In the instant case, the change of the tax from 5 cents to 1 cent is in favor of all persons or corporations engaged in business, as defined in the statute.
Furthermore, this is not, properly, a rebate of any tax, any more than it could be said that the President of the United States was rebating a tax when he lowered the tariff. It is simply changing the basis of taxation, and leaving in abeyance that part which is not to the general public advantage, within the limits carefully circumscribed by the Legislature.
It is certain that, with the tax changed from 5 cents to 1 cent per barrel, a new and fresh impetus will be given to the drilling of more oil wells within the state; that employment will be materially increased and bettered thereby; that depressed business will be invigorated and benefited; and that royalties also will be received by the owners of the newly developed mineral lands.
(5) The Attorney General contends that the title of Act No. 5 of the First Extra Session of 1935, § 2, by which section 41 1/2 was added to Act No. 15 of the Third Extra Session of 1934, is not indicative of the object of the act, as required by article 3, § 16 of the Constitution, as new matter was contained in the amending act that was not in the original, and that the title of the original act should have been amended.
The title of the original act, Act No. 15 of the Third Extra Session of 1934, is fully set forth in the title of the amending act, Act No. 5 of the First Extra Session of 1935, and its object is stated to be to amend and re-enact certain named sections of the original act, "and to add an additional Section to said Act No. 15 approved December 21, 1934, to be known as Section 41 1/2, so as to authorize the Governor to suspend the operation of the provisions of Section 41 of said Act, and providing for the effect of any such suspension." (Italics ours.)
The new section 41 1/2, added to Act No. 15 of the Third Extra Session of 1934, was not an amendment, but an addition to the original act.
As section 41 of Act No. 15 of the Third Extra Session of 1934 was not amended by Act No. 5 of the First Extra Session of 1935, it was not necessary that the title of the original act should have been amended.
It is not pretended that the new added section is not germane to the original text, since it is obviously so; and it cannot be contended, even if the added matter were new matter, that it is not stated in the title of the amending act.
We do not find, therefore, that the title of Act No. 5 of the First Extra Session of 1935 violates either article 3, § 16 of the Constitution, or article 3, § 17 of the Constitution, which provides that: "No law shall be revived or amended by reference to its title, but in such cases the act revived, or section as amended, shall be re-enacted and published at length." (Italics ours.)
Every section of Act No. 15 of the Third Extra Session of 1934 purported to be amended and re-enacted in the title of Act No. 5 of the First Extra Session of 1935, the amending act, was re-enacted and published at length in that act, as was the new added section 41 1/2.
We find no violation of either section of article 3 of the Constitution.
"Legislators, as well as judges, are bound to obey and support the Constitution, and it is to be understood that they have weighed the constitutional validity of every act they pass. Hence the presumption is always in favor of the constitutionality of the statute. Every reasonable doubt must be resolved in favor of the statute, not against it; and the court will not adjudge it invalid unless its violation of the Constitution is, in their judgment, clear, complete, and unmistakable." Black on Constitutional Law, p. 61. (Italics ours.)
(6) Concurrent resolutions by the Legislature have long been a part of the state's judicial and legislative history.
The Attorney General has himself ruled upon the power of the Legislature to suspend laws relating to the collection of taxes by concurrent resolution. (Opinions Attorney General 1932-34, p. 956.) There he passed upon a definite suspension of such laws in their entirety for a definite period by the Legislature itself by concurrent resolutions, which became Acts Nos. 2 and 3 of 1932.
The Legislature of 1934 also, by concurrent resolutions (Acts 1934, pp. 665, 666), suspended the laws relating to the collection of taxes in their entirety and for a definite period, as in the instant case, which were also held to be valid by the Attorney General in opinions not yet published.
Of course, the rulings of the Attorney General were based upon article 19, § 5 of the present Constitution, which provides: "No power of suspending laws of this State shall be exercised unless by the Legislature, or by its authority." (Italics ours.)
As there are no constitutional provisions regulating the method of suspending a law, there is no prohibition against suspension by concurrent resolution. The right of the Legislature, therefore, to suspend, or to authorize the suspension of a law under article 19, § 5, would carry with it the right to make suspension effective in any way it sees fit, unless there was some constitutional provision to the contrary. It is familiar doctrine that the Legislature of a state, unlike Congress, which cannot do anything which the federal Constitution does not authorize, may do everything which the state Constitution does not prohibit. Hughes v. Murdock, 45 La. Ann. 935, 13 So. 182. Suspension in the case at bar, under the authority of a concurrent resolution, was therefore permissible.
(7) The trial judge rendered and signed in open court the following judgment in this case: "It is ordered, adjudged and decreed that there be judgment in favor of the defendant, Alice Lee Grosjean, Supervisor of Public Accounts, and the intervenor, Standard Oil Company of Louisiana, and against the plaintiff, the State of Louisiana, declaring the House Concurrent Resolution No. 1 (Act No. 25) of the First Extraordinary Session of the Louisiana Legislature for the year 1935, section 2 of Act No. 5 of the First Extraordinary Session of the Louisiana Legislature for the year 1935, adding section 41 1/2 to Act No. 15 of the Third Extraordinary Session of the Louisiana Legislature for the year 1934, to be valid and constitutional; that there be further judgment in favor of the defendant, the Supervisor of Public Accounts, and the intervenor, Standard Oil Company of Louisiana, and against the plaintiff, the State of Louisiana, decreeing that the proclamation issued by the Governor of the State of Louisiana on the 2nd day of March, 1935, suspending the tax levied by section 41 of Act No. 15 of the Third Extraordinary Session of the Louisiana Legislature for the year 1934 in excess of one cent per barrel for a period of eight months, beginning January 9, 1935 and ending September 9, 1935, to be valid, constitutional, legal and binding on the Supervisor of Public Accounts, prohibiting that officer from collecting more than one cent per barrel as an occupational license tax for the privilege of engaging in the business of refining, heating, cracking or distilling crude oil, petroleum or the products thereof, as provided for in section 41 of Act No. 15 of the Third Extraordinary Session of the Louisiana Legislature for the year 1934; that there be further judgment in favor of said defendant, the Supervisor of Public Accounts, and the said intervenor, the Standard Oil Company of Louisiana, against the plaintiff, the State of Louisiana, decreeing that section 2 of Act No. 5 of the First Extraordinary Session of the Louisiana Legislature for the year 1935, adding section 41 1/2 to Act No. 15 of the Third Extraordinary Session of the Louisiana Legislature of the year 1934, to be valid, legal, and constitutional.
"It is further ordered, adjudged and decreed that there be judgment in favor of the intervenor, Standard Oil Company of Louisiana, against the State of Louisiana, prohibiting the said State of Louisiana, the Supervisor of Public Accounts, or any other official of the State of Louisiana, from now or hereafter collecting or attempting to collect from the said intervenor, the Standard Oil Company of Louisiana, an occupational license tax in excess of one cent per barrel for engaging in the business of refining, heating, cracking or distilling crude oil, petroleum or the products thereof, as provided for in section 41 of Act No. 15 of the Third Extraordinary Session of the Louisiana Legislature for the year 1934 for the said eight months' period, beginning January 9, 1935, and ending September 9, 1935.
"It is further ordered, adjudged, and decreed that the rule herein issued be recalled, and that the plaintiff's suit be dismissed at its cost."
We find no error in the judgment from which the plaintiff, the state of Louisiana, has appealed.
Judgment affirmed.
O'NIELL, C.J., and ODOM, J., dissent.
I concur in the opinion of the Attorney General, that the Concurrent Resolution, No. 1 (Act No. 25 of 1935, 1st Ex. Sess.), and Act No. 5 of the Extra Session of 1935 are unconstitutional for the following reasons: First, that the Legislature did not prescribe a standard, or condition, or finding of fact, on which the Governor should suspend the law (section 41 of Act No. 15 of the Third Extra Session of 1934) as to four-fifths of the tax; and, second, that, by the concurrent resolution and the statute in question, the Legislature undertook to surrender or suspend — though only temporarily and to a limited extent — the power of taxation; and, third, as to the manufacturing or refining of petroleum or crude oil that was done while section 41 of Act No. 15 of the Third Extra Session of 1934 was in full force and effect, and before the Governor issued his proclamation to reduce the tax, the Legislature was forbidden by section 13 of article 4 of the Constitution to release or extinguish, or to authorize a release or extinguishment of, the obligation or liability of the manufacturers or refiners who were then liable for the tax.
I think House Concurrent Resolution No. 1, which became Act No. 25 of the First Extra Session of 1935, is clearly unconstitutional. It violates section 1, art. 10, Constitution of 1921, which says that "The power of taxation shall be vested in the Legislature; shall never be surrendered, suspended or contracted away," and section 5, art. 19, which says that "No power of suspending laws of this State shall be exercised unless by the Legislature, or by its authority."
I concur in the view expressed by the Attorney General in his brief at page 23, that "The Legislature has no right to surrender or suspend its power of taxation by authorizing the Governor to fix a tax at either 1¢ or 5¢ per barrel, and to suspend the payment of that tax over any period of time in his discretion." Citing section 1, article 10, of the Constitution.
The Attorney General further says in his brief on the same page: "The concurrent resolution and section 2 of Act No. 5 of the Extra Session of 1935, adding additional section 41 1/2 to Act No. 15 of the Third Extra Session of 1934, surrender to the Governor the right to fix the amount of the occupational-license tax at either 1¢ or 5¢ per barrel, and the right to say when the tax shall go into effect, as well as the amount of the tax, the amount of the tax, however, not being in his discretion any further than that he either suspends the law so that the tax is 1¢ per barrel, or he leaves the tax at 5¢ per barrel. Section 41 1/2 provides that when the Governor suspends the law so as to fix the tax at 1¢ per barrel, that such suspension shall be irrevocable, and no tax shall thereafter accrue, for the period of suspension. For the period of any suspension, the Legislature has surrendered to the Governor its right to levy a tax in excess of the amount fixed by the Governor in his proclamation."
It is perfectly clear that it was the purpose of the Legislature to delegate to the Governor discretionary power and authority to so change the law as to fix the tax at 1 cent per barrel instead of 5 cents. In other words, he was authorized, but not directed, to remit 4 cents of the 5 cents tax levied if he thought it wise and proper to do so. It was left to him to decide whether the oil refiners should pay a tax of 1 cent or 5 cents per barrel on their refined products. He was made the sole judge of conditions which might warrant a remission of four-fifths of the tax levied by the Legislature. Clearly this is a complete surrender of the power of taxation, which power is vested exclusively in the Legislature.
The majority opinion states that the power of taxation was not surrendered in this case "since, at the expiration of the present proclamation by the Governor, the tax will again come back to 5 cents per barrel."
Even though the tax may come back to five cents per barrel at the end of eight months, which was the time fixed in the proclamation for the suspension, the tax is suspended during eight months, and it is not suspended because the Legislature itself suspended it or directed that it be suspended upon the happening of designated conditions, but because the Governor suspended it under the delegated and purely discretionary authority conferred by the act. The Constitution says that the power of taxation "shall never be surrendered." That means that the power shall not be surrendered at all, either for a specified time or indefinitely. If the Legislature can surrender its power to tax for eight months, it can surrender it for eight years or longer.
The question then is whether the Legislature, by adopting Act No. 25 of the First Extra Session of 1935, did in fact surrender its power of taxation. It unquestionably did. It conferred upon the Governor of the state the right and power to require the oil refining companies to pay a tax of either 1 cent or 5 cents on each barrel of their refined products. He could not remit all of the 5 cent tax, but he could remit 4 cents of it or none of it, as he saw fit. He did reduce the tax to 1 cent for a period of eight months, at the end of which time, as said in the majority opinion, the tax "will come back to 5¢" if he fails or refuses to issue another proclamation prolonging the period of suspension. He is given the power to fix the amount of the tax over such period as he sees fit, not beyond noon of the twentieth day after the Legislature of 1936 adjourns.
The power to fix the amount of a license tax is the power to tax. That, I think, cannot be disputed, nor has it been.
With reference to the suspension of laws, it is said in the majority opinion: "Necessarily, in making such suspensions, the Governor must consider the `conditions, circumstances and emergencies' enumerated in the act, and the fact-finding involved under this general authority covers a large field."
If the Legislature had enumerated certain conditions, circumstances and emergencies under which the act was not to be operative and had delegated to the Governor authority to ascertain whether or not such designated conditions, circumstances, and emergencies did in fact exist and had authorized him to suspend the payment of four-fifths of the license tax levied during the existence of such conditions, the act might not have been defective on this ground. But with due respect I call attention to the fact that the Legislature did not in fact state the conditions, circumstances, and emergencies under which the law was to be suspended. The act says that the advisability and necessity for suspending the laws is controlled by "conditions, circumstances and emergencies which arise and subside from time to time," but does not say what those conditions, etc., are. It is left entirely with the Governor to say what conditions, etc., would warrant a suspension of the law, and just here is where the act is fatally defective, because the Legislature is the lawmaking body of the state and cannot subordinate its own wisdom and discretion to that of the Governor or any one else.
Conceding that the Legislature might authorize the suspension of a law in case a certain event should take place and authorize its suspension during the existence of specifically designated conditions or emergencies, it does not follow that it could confer upon the Governor or any one else the discretionary power to determine what kind of an event or what conditions and emergencies would warrant its suspension. That is precisely what the Legislature did by enacting the statute here involved.
Elaboration is unnecessary. Mr. Justice Harlan discussed at great length the principle here involved in the case of Union Bridge Co. v. United States, 204 U.S. 364, 27 S. Ct. 367, 51 L. Ed. 523. See also "Constitutional Law", 6 R.C.L. 164, §§ 165 et seq., 8 Cyc. 830, 12 C.J. 844, § 329, State ex rel. Higgins, District Attorney pro tem., v. Aicklen, 167 La. 456, 119 So. 425.
I dissent.