Opinion
No. 6335.
January 23, 1937.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.
Action for injunction to restrain Commissioner of Law Enforcement and Attorney General from enforcing provisions of Chapter 65, 1935 Session Laws (First Extraordinary Session). Judgment for plaintiff granting injunction against defendants. Defendants appeal. Reversed.
Bert H. Miller, Attorney General, Ariel L. Crowley, Assistant Attorney General, and Oppenheim Lampert, for Appellants.
The state may, without violating the constitutional provisions for equal protection of the laws or uniformity of taxation, select for taxation those engaged in one class of business if all similarly situated are brought within the class and all members of the class are dealt with according to uniform rules. ( Oliver Iron Min. Co. v. Lord, 262 U.S. 172, 43 Sup. Ct. 526, 67 L. ed. 929 at 936; Southwestern Oil Co. v. Texas, 217 U.S. 114 at p. 121, 30 Sup. Ct. 496, 54 L. ed. 688 at p. 692; State ex rel. Mudking v. Parr, 109 Minn. 147 at p. 152, 123 N.W. 408, 134 Am. St. 759.)
The term "taxes" as used in section 2 and in section 5 of article 7, Idaho State Constitution, has reference only to property tax where the tax is assessed and collected upon property values. ( State v. Nelson, 36 Idaho 713, 213 Pae. 358; State v. Jones, 9 Idaho 693, 75 P. 819; J. C. Penney Co. v. Diefendorf, 54 Idaho 374, 32 P.2d 784.)
The act here in question imposes a license tax upon the privilege of mining or extracting ore, and a license system is a separate and distinct way of raising revenue independent of tax upon property. ( State v. Union Central Life Ins. Co., 8 Idaho 240, 67 P. 647; State v. Jones, supra; Northern Pac. Ry. Co. v. Gifford, 25 Idaho 196, 136 P. 1131.)
Hawley Worthwine, for Respondents.
The 1935 tax act is void and unenforceable because of the various uncertainties and ambiguities contained therein so that the enforcement thereof would constitute arbitrary administrative action, without legislative guide, and thus take plaintiffs' property without due process of law, and said act cannot be applied uniformly to the mining industry in Idaho. (Par. 1, art. 3; par. 5, art. 7; par. 17, art. 3, Const. Ida.; sec. 1, Fourteenth Amendment to the Constitution of the United States; Hettinger v. Good Roads Dist. No. 1, 19 Idaho 313; Knight v. Trigg, 16 Idaho 256, 100 P. 1060; Epperson v. Howell, 28 Idaho 338, 154 P. 621; Connally v. General Const. Co., 269 U.S. 385, 46 Sup. Ct. 126, 70 L. ed. 322; United States v. Capital Traction Co., 34 App. Cas. (D.C.) 592, 19 Ann. Cas. 68; Western Union Tel. Co. v. State, 62 Tex. 630.)
The 1935 act is void because it violates section 6 of article 7 of the Constitution of the state of Idaho. ( Fenton v. Board of County Commrs., 20 Idaho 392, 119 P. 41; School District v. Twin Falls, etc., 30 Idaho 400, 164 P. 1174; Curry v. District Township, 62 Iowa, 102, 17 N.W. 191.)
The 1935 License Tax Act is void because it is unreasonable, discriminatory, and confiscatory. ( Hanley v. Federal Min. Smelting Co., 235 Fed. 769; Postal Tel.-Cable Co. v. Taylor, 192 U.S. 64, 24 Sup. Ct. 208, 48 L. ed. 342; 37 C. J., pp. 186, 187.)
This action involves the constitutionality of chapter 65 of the Session Laws of the First Extraordinary Session of 1935 (1935 Extra. Sess., p. 182). On application of the plaintiffs (respondents here), the trial court ordered an injunction against appellants, the commissioner of law enforcement and the attorney general, enjoining and restraining them from proceeding in any manner or form to enforce or execute the provisions of the said act, popularly known as the "Mine Tax Law." Plaintiffs in their complaint set up a large number of objections to the act and urged the same as grounds evidencing the unconstitutionality of the act in question. Among other objections, that plaintiffs urge in their complaint, against the act, is, that it provided no appropriation or means for its proper or adequate enforcement, and also allege as follows:
"The defendants, Commissioner and Attorney General, propose and have threatened to enforce, and will endeavor to enforce, through appropriate action and the imposition of fines and penalties prescribed by the said Act hereinbefore referred to, the collection of the taxes thereby attempted to be imposed upon the plaintiffs, notwithstanding the manifest invalidity of such Tax Act as hereinbefore alleged."
Among other things set up in the answer of the defendants is the following paragraph, which is reiterated in the course of the pleadings, and likewise in the briefs:
"These defendants deny that they contemplate or intend to take any proceedings for the enforcement of said act or to assess or inflict any penalty accruing thereunder until it is judicially determined whether or not there are any funds in the Idaho State Treasury appropriated for the payment of such expenses as may be necessary thereto."
The judgment here entered was rendered upon motion for judgment on the pleadings. A motion for judgment on the pleadings admits the truth of the allegations of the adversary, and, for the purpose of such motion, also admits the untruth of all the allegations of the moving party which have been denied by the adversary. ( Walling v. Bown, 9 Idaho 184, 72 P. 960; Idaho Placer Min. Co. v. Green, 14 Idaho 294, 304, 94 P. 161; Mills Novelty Co. v. Dunbar, 11 Idaho 671, 676, 83 P. 932; Coe v. Bennett, 39 Idaho 176, 226 P. 736.)
For our present purposes, it stands admitted that the defendants are making no effort to enforce the act in question and do not intend to do so unless it be first judicially determined that funds are available to pay the expense of administration, or a legislative appropriation is made for that purpose. Because of this admitted fact alone, the injunction should not have issued; and under no consideration should a legislative act be declared unconstitutional upon such a state of facts.
"Under the well established rule in this court the constitutionality of a law will not be passed upon unless it is absolutely necessary for the determination of the case." ( Mills Novelty Co. v. Dunbar, supra; In re Brainard, 55 Idaho 153, 158, 39 P.2d 769; Kimbley v. Adair, 32 Idaho 790, 793, 189 P. 53; Williams v. Baldridge, 48 Idaho 618, 284 P. 203; In re Allmon, 50 Idaho 223, 294 P. 528.)
In the state of the issues as they were made up in the trial court, it was error for the court to pass upon the constitutionality of the act, or order the issuance of an injunction. For that reason the judgment will be reversed.
In view of the fact that the attorney general and the commissioner of law enforcement, against whom the judgment was entered, have gone out of office, and a new attorney general, and another law enforcement commissioner, have taken over the respective offices, and that a new administration is now in power, and another legislature is in session, the cause will be remanded, with direction to the trial court to dismiss the action.
Morgan, C.J., and Holden, Budge and Givens, JJ., concur.
Petition for rehearing denied.