Campbell v. Shaw

OPINION OP THE COURT, BY JUDD, C.J., (Frear, J., dissenting.) These cases came before a Circuit Judge of the First Circuit Court and pro forma decrees were entered sustaining the demurrer interposed. By agreement the cases were heard by us in vacation, on the 5th and 6th instant. The' Legislature of 1896, passed on the 12th of June of that year Act 65 entitled “An Act to Provide Revenue for the Gov113 eminent by tbe Assessment and Collection of Tax on Income.” By the terms of tbe Act returns are to be made by tbe 31st of August of this year. Tbe actions are bills in equity, claiming that tbe Act in question is unconstitutional and void and pray that tbe Act may be-so declared and that tbe defendant as Tax Assessor for tbe First Taxation District may be enjoined from assessing and collecting-the tax by tbe said Act imposed. Tbe demurrers aver tbe constitutionality of tbe Act. In Campbell’s case, tbe ten points made were that tbe Act is unconstitutional and void because— (a) Tbe said income tax law requires tbe plaintiff to pay taxes on income, either in tbe form of money or in investments representing tbe same, upon which tbe plaintiff is taxed under tbe provisions of Act 51. (b) Tbe said income tax law exempts from income tax all persons having an income of less than $2,000 and also corporations, companies or associations organized and conducted solely for charitable, religious, educational or scientific purposes, including fraternal beneficiary societies, orders or associations operating upon tbe lodge system and providing for tbe payment of life, sick, accident or other benefits to tbe members of such societies, orders or associations, and dependents of such members: the stocks, shares, funds, real and personal property, or securities held by any fiduciary or trustee for charitable, religious, educational or scientific purposes. (c) Tbe said income tax law allows an exemption of two thousand dollars upon incomes under four thousand dollars, whereas no such exemption is allowed upon incomes over four thousand dollars. (d) Tbe said income tax law exempts from an income tax all profits realized from sales of real estate purchased more than two years previous to tbe close of tbe year for which income is estimated. (e) Tbe said income tax law makes no deduction for any — 114 — ¡amount paid out for new buildings, permanent improvements or betterments made to increase tbe value of any property or estate. (f) Tbe said income tax law taxes the salaries of the President and of the Justices of the Supreme Court as officers of -the Republic. \{g) The said income tax law necessarily requires double 'and duplicate taxation of property. (h) The said income tax law unreasonably and unlawfully exempts ]Dersons and property from taxation. (i) The said income tax law does not require each member of society to contribute his proportion or share of taxes. (j) The said income tax law requires no returns or taxes of mercantile firms and imposes no taxes on partnership property, income or gains other than by requiring returns from and taxing individual members of such firms in' respect of their several interests in the firm property and income derived therefrom, whereby much partnership property and income are necessarily untaxed, resulting in an unlawful discrimination against the property and income of incorporated mercantile associations, as well as of other corporations and of individuals. (k) The said income tax law is otherwise unconstitutional and void. In the Honolulu Iron Works Company’s case fourteen reasons that the Act is unconstitutional and void are alleged, as follows: (l) That the. exemption of incomes under two thousand dollars from taxation is unconstitutional, being in conflict with Article 11, Section 2, and (or) Article 12 of the Constitution of the Republic of Hawaii. (2) The provision allowing an exemption of two thousand dollars upon incomes under four thousand dollars, whereas no such exemption is allowed to incomes over four thousand dollars is unconstitutional and void, being.in conflict with Article 11, Section 2, and (or) Article 12 of the Constitution of the Republic of Hawaii. (B) The provision allowing an exemption of two- thousand — 115 — dollars upon all incomes of persons having an income under four thousand dollars whereas no such exemption whatever is allowed corporations having an income under four thousand dollars, is unconstitutional and void as being in conflict with Article 11, Section 2, and (or) Article 12 of the Constitution of the Republic of Hawaii. (4) The provision making it lawful for any assessor who shall be of the opinion that a i*eturn is false or fraudulent or coxxtains any under-statemexxt to summoxx axxy persoxx, vice-president, nxanagex’, residexxt maxxager or ag’exxt of, or any persoxx having the possession, cxxstodv or care of books of account containing entries relating to the business of such person or corporatioix, wherever residing or found, to appear before him and produce such books at a time and place named in the sxxmmoixs, and to give testimony or answer interrogations under oath respecting any objects liable to tax or the returns thereof, and in case of any return of a false or fraudulent list, the imposition of two hundred per cent, penalty in addition to the tax imposed, is unconstitutional and void, being in conflict with Article S axxd (ox’) Article 6 of the Constitution of the Republic of Hawaii. (5) The provision that when any person or corporation having a taxable income refuses or neglects to render any return! or list of ixxcome requix’ed by law, or renders an understated, false or fraudulent return or list, that the assessor shall make according to the best infox’ixxatioxx which he caxx obtain, axxd oxx his own view axxd information, such return accox’ding to the fonn prescribed of the income liable to tax possessed by such person or corporation, and that the said assessor shall assess the incoxxxe; and in case of any x-etum of a false or fraudulent list or valuation that he shall add 200 per cent, to such tax, axxd in case of a refusal or neglect to make a list or return, or to verify the same, he shall add 100 per cent, to such tax, is unconstitutioxxal axxd void, being in conflict with Article 6 and (or) Axiicle 8 of the Constitution of the Republic of Hawaii. (6) The provision maldng it lawful for the assessor of the division in which any corporation is assessable, whenever he — 116 — shall believe that a true and correct return of the income of such corporation has not been made, to make an affidavit of such belief and of the grounds on which it is founded, and if the Minister of Finance shall on examination thereof conclude there are good grounds for such belief, then and thereupon making it lawful for him to issue a request in writing to such corporation to permit an inspection of the books of such corporation to be made, and if such corporation refuses to comply with such request, then making it lawful for the assessor of the division to make, from such information as he can obtain, an estimate of the amount of such income and then add one hundred per cent, thereto, which said assessment so made is made the lawful assessment of such income, and not subject to appeal, is unconstitutional and void, being in conflict with Article 10 and (or) Article 8 of the Constitution of the Republic of Hawaii. (7) The entire law imposing a tax on incomes is unconstitutional and void for the reason that in connection with Section 17 of Act 51 of the Session Laws of 1896, passed prior to the income tax law, which section provides that: “In estimating the aggregate value of each such enterprise for profits there shall be taken into consideration the net profits made by the same, and also the gross receipts and actual running expenses,” etc., the said income tax law results in duplicate taxation, and is in conflict with Article 11, Section 2, and (or) Article 12 of the Constitution of the Republic of Hawaii. (8) The entire income tax law is unconstitutional and void for the reason that, taken in connection with Sections 14 and 16 of Act 51, Session Laws of 1896, passed prior to said income tax law, said income tax law results in duplicate taxation of all income received between the 1st day of July and the 1st day of January of each year, and remaining as money on hand on the 1st day of January, thus conflicting with Article 11, Section 2, and (or) Article 12 of the Constitution of the Republic of Hawaii. (9) The entire income tax law is unconstitutional and void for the reason that, taken in connection with Sections 14, 15 — 117 — and 16 of Act 51, Session Laws of 1896, passed prior to said income tax law, it results in duplicate taxation of all income received between tbe 1st day of July and tbe 1st day of January of each year, and invested in real and (or) personal property within the jurisdiction of this Republic, thus conflicting with Article 11, Section 2, and (or) Article 12 of the Constitution of the Republic of Hawaii. (10) The said income tax law is unconstitutional and void in that it exempts from its operation corporations, companies and associations organized and conducted solely for charitable, religious, educational and scientific purposes, including fraternal beneficiary societies, orders or associations operating upon the lodge system, and providing for the payment of life, sick, accident or other benefits to the members of such societies, orders and associations, and dependents of such members; and insurance companies taxed on a percentage of the premiums under the authority of any other act; and the stock, shares, funds, real and personal property or securities held by any fiduciary or trustee for charitable, religious, educational and scientific purposes, and is therefore in conflict with Article 11, Section 2, and (or) Article 1, Section 2, of the Constitution of the Republic of Hawaii. (11) The said income tax law is unconstitutional and void in that it exempts from its operation all copartnerships consisting of two or more persons carrying on business together, and is therefore in conflict with Article 1, Section 2, and (or) Article 11, Section 2, of the Constitution of the Republic of Hawaii. (12) The provisions of the income tax law imposing a tax of one per cent, on the incomes of every servant or officer of the Republic is unconstitutional and void so far as it relates to the salaries of the President and Justices of the Supreme Court, being in conflict with Article 25 of the Constitution of the Republic of Hawaii, and of Article 83 of the Constitution of the Republic of Hawaii. (13) The entire income tax law is unconstitutional and void for the reason that such portions of it as are unconstitutional and void for any or all of the reasons above stated render — 118 — the conclusion, inevitable that the Legislature would not have passed the remaining portions of the law. (14) The entire income tax law is unconstitutional and void for the reason that the exclusion and non-enforcement of such portions of it as are unconstitutional and void results in the entire tax being borne by only a portion of the community, and is therefore in conflict with Article 11, Section 2, and (or) Article 1, Section 2, of the Constitution of the Republic of Hawaii. We will consider first the questions raised upon the first section of the Act. The section reads as follows: “From and after the first day of July, A. D. 1897, there shall be levied, assessed, collected and paid annually upon the gains, profits and income derived by every person residing in the Republic, and by every person residing without the Republic, from all property owned, and every business, trade, profession, employment or vocation carried on in the Republic, and by every servant or officer of the Republic, wherever residing, a tax of one per cent, on the amount so derived; provided, that where the gains, profits or income of any such person who resides within the Republic, or of any servant or officer of the Republic wherever residing, shall not have exceeded the sum of four thousand dollars for the preceding twelve months, only so much of such gains, profits or income as exceeds the sum of two thousand dollars, shall be liable to such tax, and the tax herein provided for shall be assessed by the assessors and collectors for the time being for the several tax divisions of the Republic, and collected and paid upon the gains, profits and income for the year ending the 30th day of June next preceding the time for levying, assessing, collecting and paying the said tax.” The plaintiffs claim that this section is violative of Article Eleven of the Constitution which reads: Section 1. No subsidy, duty or tax of any description shall be established or levied without the consent of the Legislature; nor shall any money be drawn from the Public Treasury with — 119 — out such consent, except in the manner directed by this Constitution. Section 2. Each member of society has the right to be protected in the enjoyment of his life, liberty and property, according to law; and therefore, he shall be obliged to contribute his proportion or share to the expense of this protection; and to give his personal services, or an equivalent when necessary, as may be provided by law. The Act in question is claimed to be repugnant to other articles of the Constitution, especially Article 1, Section 2, which reads: The Government is conducted for the common good, and not for the profit, honor or private interest of any one man, family or class of men. Article 8. No person shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property, without due process of law. Article 10. Every person has the right to be secure from all unreasonable searches and seizures of his person, his house, his papers and effects; and no warrant shall issue, except on probable cause, supported by oath or affirmation and describing the place to be searched and the persons or things to be seized. It is urged by plaintiffs’ counsel that Article 11 of the Constitution which declares that each member of society “shall be obliged to contribute his proportion or share to the expense of this protection,” etc., means that each person may be obliged to pay only his proportion or share of such tax, that is, that the tax to be paid by each shall be in proportion to the income from property owned by him. To express it in another way, each person can only be taxed on his income rateably with the incomes of others. The tax of one must bear the same ratio to his income as the tax of others bears to their incomes. The attorney for the defendant urges that there is no limitation to the power of taxation since we have no provision in the Constitution that taxes shall be “equal and uniform” as in — 120 — many other states, and that Article 11 of the Constitution is not a limitation of the taxing power and if it is, the legislature is the proper judge of what is the proportion or share that each member of society must contribute for the expenses of government. "We do not agree with this contention. The power to tax for its support is inherent in every government, for it could not exist without such power, but this power is limited by Article 11, for by it taxes can only be imposed by the legislature and not by the executive, and the legislature can only exercise this power in the method pointed out, so that each person shall pay his “proportion or share.” The inhibition to tax in any other way than that which accomplishes the result that each member of society bears only his proportion or share of the whole expense of government, does not differ essentially from a provision that taxation shall be equal and uniform. Certainly the taxing of A upon property of the same value as that of B more than the tax laid upon B would be compelling A to pay more than his “proportion or share” and the taxation would not be “equal and uniform.” In the light of this reasoning to tax A one per cent, of his entire annual income, if it exceeds the sum of four thousand dollars, and to tax B on only two thousand dollars of his income if the whole does not exceed four thousand dollars, and to impose no tax at all upon 0 if his income be less than two thousand dollars would be obliging A to pay more than his “proportion or share” of the tax, and such taxation would not be “equal and uniform.” To this it is replied that the legislature has the power to exempt from taxation such subjects as it deems proper. But by all the authorities the exemptions must be supported by public considerations and tend to promote the general welfare. Of this character is the exemption from taxation long existing in this country to every taxpayer property to the value of three hundred dollars, the obvious purpose being not to tax at all those who are so poor as to possess property of only that value or less. But the statute in question does not exempt from taxation all incomes to the amount of two thousand dollars, but im — 121 — poses upon him who receives over $4,000 a year a tax of one per cent, upon the whole amount, whereas the person whose income is less than four thousand dollars pays only on the excess of income over two thousand dollars. It is well settled that the legislature has the power to classify objects of taxation, but it is equally well settled that selections cannot be made out of a class for taxation and others of the same class be exempted. The effect of this section of the Act would be to place the burden of this tax upon those whose annual incomes are over four thousand dollars, and who constitute a minority of the community. It is argued that the exemption of incomes of two thousand dollars is reasonable and in furtherance of a public purpose, because the sum of two thousand dollars is the average annual cost of living of a family. This' is a mere supposition and not to be taken for granted as true in our community. But if it be once conceded that exemptions so large as this can be made as a public benefit then exemptions of a much larger amount can be made which might place the whole burden upon the rich and if pushed to an extreme be a confiscation and not the proportional taxation authorized by the Constitution. It may be argued that if that part of the statute which provides for these exemptions is inoperative and void because of its repugnancy to Article 11 of the Constitution, the rest of the section imposing the tax upon every one, might stand. But we do not know that the legislature would have passed that part of the section imposing the tax upon all persons were it not for the exemptions made. To mutilate the section by holding that the first part which imposes a tax upon all incomes of persons is constitutional, all exemptions being cut off, would be in effect the making of a new statute which we have no authority to do. The entire section expresses the intention of the legislature and its solidarity must either be preserved or the whole fails. The same reasoning will apply to Section 2 which imposes a tax of one per cent, upon the net income of corporations. It was the evident intention of the legislature to establish a general scheme of taxation and place a tax upon incomes of every description — 122 — whether derived by individuals or by corporations. It is not at all certain that the legislature would have passed the Act if it imposed the tax upon incomes of corporations alone and exempted incomes of individuals whether alone or in association as partners. The question before us is one of difficulty, upon which able minds differ and we have come to our opinion with caution. We have no disposition to interfere with the prerogatives of the legislature, but being convinced that the distinction made by the first section of the Act between the subjects of taxation of the same class violates the constitutional principle that taxation must be proportional, we declare the whole Act to be unconstitutional and void. A. S. Hartwell, Kinney & Ballou, for plaintiffs. A. G. M. Robertson, for defendant. The demurrers are overruled. OPINION OF WHITING, J. I agree with the opinion of the Chief Justice in so far as it declares the law unconstitutional as being in violation of Article 11 of the Constitution, for the reason that there is an unjust discrimination in the imposition of the tax on incomes over $4,000 without the allowance of the exemption given to those having a less income. The exemption of $2,000 of income from taxation ought to be allowed to all, in order that each member of society may bear his proportion or share of the burdens of taxation. The legislature may classify the objects of taxation, but when classified, there must be no discrimination. I am of opinion that the division of the income under Sec. 1 of the Income Tax Act of 1896 into $2,000, $2,000--$4,000, and $4,000 and over, is not classification of-objects of taxation. I also agree that the whole Act falls, and the demurrer should be overruled.