BEALS, C.J., BLAKE, TOLMAN, and GERAGHTY, JJ., dissent.
Alleging that the state income tax law (initiative No. 69, chap. 5, Laws of 1933, p. 49 [Rem. 1933 Sup., § 11200-1 etseq.]) was unconstitutional, respondents instituted two actions, which were consolidated for trial and appeal, against the members of the state tax commission to secure a permanent injunction restraining defendants from enforcing the act mentioned. The trial court was of the view that the challenged act offended against the uniformity requirement of the fourteenth amendment to the state constitution, and was therefore void. The demurrers to the complaints were overruled, and a decree was entered permanently restraining the enforcement of the act, from which decree comes this appeal.
The fourteenth amendment to the state constitution reads:
"The power of taxation shall never be suspended, surrendered or contracted away. All taxes shall be uniform upon the same class of property within the
territorial limits of the authority levying the tax and shall be levied and collected for public purposes only. The word `property' as used herein shall mean and include everything, whether tangible or intangible, subject to ownership. All real estate shall constitute one class: Provided, That the Legislature may tax mines and mineral resources and lands devoted to reforestation by either a yield tax or an ad valorem tax at such rate as it may fix, or by both. Such property as the Legislature may by general laws provide shall be exempt from taxation. Property of the United States and of the state, counties, school districts and other municipal corporations, and credits secured by property actually taxed in this state, not exceeding in value the value of such property, shall be exempt from taxation. The Legislature shall have power, by appropriate legislation, to exempt personal property to the amount of three hundred dollars ($300) for each head of a family liable to assessment and taxation under the provisions of the laws of this state of which the individual is the actual bona fide owner."
The income tax law provides:
"Section 1. Existing methods of taxation, primarily based on property holdings, are inadequate, inequitable and economically unsound. Present conditions point the need of a new subject matter for taxation, which should be based on the ability to pay. Earnings for a given period are a fair measure of such ability.
"The people of the state of Washington, therefore, exercising herein their supreme power and fundamental right, declare their purpose hereby to tax all annual incomes within the state as such, and not as property.
"There shall be assessed, levied, collected and paid annually, a tax on all net income as hereinafter provided, by every person residing within the state of Washington or by his personal representative in case of death; and by every non-resident of the state, upon such income as is derived from property located or business transacted within the state, except as hereinafter exempted. . . ." Rem. 1933 Sup., § 11200-1.
The system of graduated rates adopted by the income tax law imposes upon the taxpayer a rate of taxation that progresses and becomes larger with the increase in the amount of his taxable income.
[1] Respondents insist that, under the constitutional definition, "The word `property' as used herein shall mean and include everything, whether tangible or intangible, subject to ownership," a tax on income derived from property is a tax on the property from which the income is derived, therefore the method of classification adopted by the income tax law is violative of the requirements of the state constitution that "all taxes shall be uniform upon the same class of property."
Unless the income tax constitutes a tax on property, the uniformity clause of the state constitution is not violated. If income taxes
". . . are to be deemed a property tax, constitutional limitations applicable to property taxes must be applied. . . . If they are excise taxes, such limitations are not applicable." 4 Cooley, Taxation (4th ed.), § 1743.
[2] The fact that the income tax law was passed as an initiative measure is of no controlling importance, nor can it be likened to an amendment to the constitution. The constitution provides the means, methods and processes for its own amendment.
Amendment 14, which replaced art. 7 of our constitution, was adopted by the people by the proper method in 1930. The income tax law was passed by the people in 1932. All laws on any subject whatever, enacted by either the people or the legislature, must be governed by the provisions of the constitution in force at that time. "The people in their legislative capacity are not, however, superior to the written and fixed constitution." State ex rel. Berry v. Superior Court, 92 Wn. 16,159 P. 92.
[3] The pertinent portion of amendment 14 of our constitution is:
"All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax and shall be levied and collected for public purposes only. The word `property' as used herein shall mean and include everything, whether tangible or intangible, subject to ownership."
The initiative act in question is clearly one for public revenue.
It would certainly defy the ingenuity of the most profound lexicographer to formulate a more comprehensive definition of "property." It is "everything, whether tangible or intangible, subject to ownership." Income is either property under our fourteenth amendment, or no one owns it. If that is true, any one can use our incomes who has the power to seize or obtain them by foul means. There being no other classifications in our constitution but real and personal property and intangible
property, incomes necessarily fall within the category of intangible property. No more positive, precise and compelling language could have been used than was used in those words of our fourteenth amendment. It needs no technical construction to tell what those words mean. The overwhelming weight of judicial authority is that "income" is property and a tax upon income is a tax upon property.
None of the decisions from other states have any bearing upon the law before us, because of our peculiarly forceful constitutional definition and the difference in their constitutional authorization or restriction.
In State ex rel. Bolens v. Frear, 148 Wis. 456,134 N.W. 673, Ann. Cas. 1913A 1147, L.R.A. 1915B 569, an income tax act enacted in 1911 was apparently set
out in full by the court and is almost identical with our own income tax act. There are some unimportant differences not necessary to mention. The constitution of Wisconsin had been amended in 1908. It previously had provided that:
"The rule of taxation shall be uniform, and taxes shall be levied upon such property as the legislature shall prescribe,"
which provision was amended by the addition of the following words:
"Taxes may also be imposed on incomes, privileges, and occupations, which taxes may be graduated and progressive and reasonable exemptions may be provided."
Previous to the adoption of this amendment, the supreme court of Wisconsin had held an income tax law unconstitutional. In passing upon the income tax act of 1911, the supreme court of that state, among other things, said:
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BEALS, C.J., BLAKE, TOLMAN, and GERAGHTY, JJ., dissent.
Alleging that the state income tax law (initiative No. 69, chap. 5, Laws of 1933, p. 49 [Rem. 1933 Sup., § 11200-1 etseq.]) was unconstitutional, respondents instituted two actions, which were consolidated for trial and appeal, against the members of the state tax commission to secure a permanent injunction restraining defendants from enforcing the act mentioned. The trial court was of the view that the challenged act offended against the uniformity requirement of the fourteenth amendment to the state constitution, and was therefore void. The demurrers to the complaints were overruled, and a decree was entered permanently restraining the enforcement of the act, from which decree comes this appeal.
The fourteenth amendment to the state constitution reads:
"The power of taxation shall never be suspended, surrendered or contracted away. All taxes shall be uniform upon the same class of property within the
territorial limits of the authority levying the tax and shall be levied and collected for public purposes only. The word `property' as used herein shall mean and include everything, whether tangible or intangible, subject to ownership. All real estate shall constitute one class: Provided, That the Legislature may tax mines and mineral resources and lands devoted to reforestation by either a yield tax or an ad valorem tax at such rate as it may fix, or by both. Such property as the Legislature may by general laws provide shall be exempt from taxation. Property of the United States and of the state, counties, school districts and other municipal corporations, and credits secured by property actually taxed in this state, not exceeding in value the value of such property, shall be exempt from taxation. The Legislature shall have power, by appropriate legislation, to exempt personal property to the amount of three hundred dollars ($300) for each head of a family liable to assessment and taxation under the provisions of the laws of this state of which the individual is the actual bona fide owner."
The income tax law provides:
"Section 1. Existing methods of taxation, primarily based on property holdings, are inadequate, inequitable and economically unsound. Present conditions point the need of a new subject matter for taxation, which should be based on the ability to pay. Earnings for a given period are a fair measure of such ability.
"The people of the state of Washington, therefore, exercising herein their supreme power and fundamental right, declare their purpose hereby to tax all annual incomes within the state as such, and not as property.
"There shall be assessed, levied, collected and paid annually, a tax on all net income as hereinafter provided, by every person residing within the state of Washington or by his personal representative in case of death; and by every non-resident of the state, upon such income as is derived from property located or business transacted within the state, except as hereinafter exempted. . . ." Rem. 1933 Sup., § 11200-1.
The system of graduated rates adopted by the income tax law imposes upon the taxpayer a rate of taxation that progresses and becomes larger with the increase in the amount of his taxable income.
[1] Respondents insist that, under the constitutional definition, "The word `property' as used herein shall mean and include everything, whether tangible or intangible, subject to ownership," a tax on income derived from property is a tax on the property from which the income is derived, therefore the method of classification adopted by the income tax law is violative of the requirements of the state constitution that "all taxes shall be uniform upon the same class of property."
Unless the income tax constitutes a tax on property, the uniformity clause of the state constitution is not violated. If income taxes
". . . are to be deemed a property tax, constitutional limitations applicable to property taxes must be applied. . . . If they are excise taxes, such limitations are not applicable." 4 Cooley, Taxation (4th ed.), § 1743.
[2] The fact that the income tax law was passed as an initiative measure is of no controlling importance, nor can it be likened to an amendment to the constitution. The constitution provides the means, methods and processes for its own amendment.
Amendment 14, which replaced art. 7 of our constitution, was adopted by the people by the proper method in 1930. The income tax law was passed by the people in 1932. All laws on any subject whatever, enacted by either the people or the legislature, must be governed by the provisions of the constitution in force at that time. "The people in their legislative capacity are not, however, superior to the written and fixed constitution." State ex rel. Berry v. Superior Court, 92 Wn. 16,159 P. 92.
[3] The pertinent portion of amendment 14 of our constitution is:
"All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax and shall be levied and collected for public purposes only. The word `property' as used herein shall mean and include everything, whether tangible or intangible, subject to ownership."
The initiative act in question is clearly one for public revenue.
It would certainly defy the ingenuity of the most profound lexicographer to formulate a more comprehensive definition of "property." It is "everything, whether tangible or intangible, subject to ownership." Income is either property under our fourteenth amendment, or no one owns it. If that is true, any one can use our incomes who has the power to seize or obtain them by foul means. There being no other classifications in our constitution but real and personal property and intangible
property, incomes necessarily fall within the category of intangible property. No more positive, precise and compelling language could have been used than was used in those words of our fourteenth amendment. It needs no technical construction to tell what those words mean. The overwhelming weight of judicial authority is that "income" is property and a tax upon income is a tax upon property.
None of the decisions from other states have any bearing upon the law before us, because of our peculiarly forceful constitutional definition and the difference in their constitutional authorization or restriction.
In State ex rel. Bolens v. Frear, 148 Wis. 456,134 N.W. 673, Ann. Cas. 1913A 1147, L.R.A. 1915B 569, an income tax act enacted in 1911 was apparently set
out in full by the court and is almost identical with our own income tax act. There are some unimportant differences not necessary to mention. The constitution of Wisconsin had been amended in 1908. It previously had provided that:
"The rule of taxation shall be uniform, and taxes shall be levied upon such property as the legislature shall prescribe,"
which provision was amended by the addition of the following words:
"Taxes may also be imposed on incomes, privileges, and occupations, which taxes may be graduated and progressive and reasonable exemptions may be provided."
Previous to the adoption of this amendment, the supreme court of Wisconsin had held an income tax law unconstitutional. In passing upon the income tax act of 1911, the supreme court of that state, among other things, said:
"Words could hardly be plainer to express that idea than the words used. From them it clearly appears that taxation of property and taxation of incomes are recognized as two separate and distinct things in the state constitution; both may be levied, and lawfully levied, because the constitution says so. .. . the people of Wisconsin have said that `property' means one thing, and `income' means another; in other words, that income taxation is not property taxation, as the words are used in the constitution of Wisconsin."
How different from the situation here. We have no constitutional provision authorizing taxation of income as one thing and property as another. We have only the constitutional provision that property "shall mean and include everything, whether tangible or intangible, subject to ownership." Until we have such a
constitutional amendment, the hands of the people, as well as the legislature, in enacting laws, are tied.
It has been definitely decided in this state that an income tax is a property tax, which should set the question at rest here. Aberdeen Savings Loan Assn. v. Chase, 157 Wn. 351,289 P. 536, 71 A.L.R. 232. Even though some of us dissented from the majority decision, the dissenting opinions show that the case was thoroughly considered, and the opinion of the majority should govern. In future cases, even a dissenting justice should be bound by the decision of the majority until and unless authoritatively overruled or reversed by some higher tribunal, such as the supreme court of the United States.
It is asserted that a state income tax is an excise tax. That is not correct. The cases cited to sustain the assertions all involved corporate franchise tax laws and the like.
Great reliance is placed by appellants upon a recent decision by the Idaho supreme court in Diefendorf v. Gallet, 51 Idaho 619, 10 P.2d 307, sustaining an income tax statute of that state, which decision also contains an exhaustive discussion of the authorities upon the question of income taxes. That decision involved the interpretation of three sections of the constitution of Idaho and of the income tax statute which declared that income should not be taxed as property.
One of the peculiar constitutional provisions of Idaho is art. 7, sec. 3, prescribing that, "The word `property' as herein used shall be defined and classified by law." Another constitutional provision is that, "All taxes shall be uniform upon the same class of subjects within the territorial limits," and providing for the allowance of exemptions. That court held, as would we, under a similar constitutional provision, that the lawmaking power was absolutely free to define
property to be taxed. Our constitution is to the contrary.
Our attention has also been called to a decision by the Montana supreme court, O'Connell v. State Board ofEqualization, 25 P.2d (Mont.) 114, in which that court held, by a majority of three to two, that an income tax law enacted in Montana was valid. Stress was laid in that case upon the fact that the law was copied from the Idaho act, which had theretofore been construed by the supreme court of that state, and it necessarily followed that the law and the judicial interpretation were adopted in the Montana statute. With due respect to the majority of that court, it seems obvious to us, as pointed out in the dissenting opinions, that the majority lost sight of the unique provisions of the Idaho constitution as stated by that court itself. Had we the same "unique" constitutional provision as has Idaho, we should probably follow the decision of that court upon the validity of the income tax law before us.
After the decision by this court in the Aberdeen Savings Loan Assn. case, supra, deciding that income was property for the purposes of taxation, the people adopted the fourteenth amendment, supra, which made it a part of the fundamental law of the state.
It is also argued that, under the recent decision of this court in Pacific Tel. Tel. Co. v. Seattle, 172 Wn. 649,21 P.2d 721, holding valid certain fees exacted from the utility company in that case, these are excise taxes. That decision was correct solely because such exactions are excise taxes. Such taxes were long ago defined as
"Taxes laid upon the manufacture, sale, or consumption of commodities within the country, upon licenses to pursue certain occupations and upon corporate privileges." Cooley on Constitutional Limitations
(7th ed.), 680. (Quoted in dissenting opinion in AberdeenSavings Loan Assn. v. Chase, supra.)
The taxes here in question can in no sense be said to be for licenses to pursue certain occupations, or upon corporate or business privileges, or for the manufacture, sale or consumption of commodities within the state.
[4] Our fourteenth amendment prescribes that all taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax, etc. It needs no argument to demonstrate that the income taxes here levied are wholly lacking in uniformity.
It is sought to sustain the graduated features of the income tax by analogy to a graduated inheritance tax.
The inheritance tax is really not a tax at all. It is an impost laid but one time, and not annually, as is a tax. The right of devisees, or in cases of inheritance, the right of heirs at law, to take, is not a natural right. It exists only because the state grants the right. After having granted the right, the state may impose as a condition upon the exercise of the right that the state shall receive a certain percentage or proportion thereof. This percentage or proportion may be graduated and may be as large as the state may see fit to impose. This court has so held in two cases: State v. Clark, 30 Wn. 439, 71 P. 20, and In re Ellis' Estate, 169 Wn. 581, 14 P.2d 37. There is no similitude between incomes and the portion of an estate passing to one upon the death of another. No well considered decision has ever so held.
We do not lose sight of the well established principle in this state, of which the author of this has always been a pronounced advocate, that every intendment should be brought to bear in favor of the validity of a statute or enactment and if any reasonable doubt appears
it should be resolved in favor of the validity of the law, as we have many times held. State ex rel. Hamilton v. Martin,173 Wn. 249, 23 P.2d 1. Nor do we disregard the deplorable financial condition of the state and its taxing divisions and the necessity of raising additional revenues. As to such conditions, it is better that we suffer the inconvenience of the present loss of such revenues than that we disregard the emphatic restrictions of the constitution for the sake of temporary relief. It may be possible to frame an income tax law which will assess all incomes uniformly and comply with our constitution, which, of course, is not now before us and we need not consider it.
It is perfectly obvious that, when the proponents of initiative No. 69 framed the act, they lost sight of our constitutional definition in the fourteenth amendment. The declaration in the law of a purpose to tax all annual incomes as such and not as "property," cannot override the constitution. It is also clear that the people when legislating, the legislature, and the courts, are and should be bound by the limitations, restrictions, definitions and prohibitions of the constitution. It is the fundamental law of the state.
For the reasons herein stated, the decree of the trial court is affirmed.
MAIN, J., concurs.