People v. Ames, 24 Colo. 422

24 Colo. 422 | Colo. | 1897

Chiee Justice PIayt

delivered the opinion of the court.

We will consider the objections urged in the order in which they are presented. It is true that there is no direct statutory provision, requiring the assessor to extend the military poll tax upon the assessment roll; but the law does require the commissioners to cause to be levied “ an annual poll tax of one dollar upon each male inhabitant over the age of twenty-one years, except members of the national guard and such other persons as may be exempt by law; ” and it provides a penalty for failure on the part of the commissioners to levy such tax. The constitution provides that there shall be elected, biennially, in each county, one county assessor, and in the absence of any constitutional or statutory provision as to the duties of such assessor, his duties will be held to be such as are usually incumbent upon such an officer. The statute requires the assessor to leave with all owners of property residing in his county, a tax schedule, upon which the number of the polls, among other things, is to be entered. When this schedule is completed, it is to be returned to the assessor, and it is made his duty to deliver to the county treasurer the assessment book or roll, with the taxes extended. The statute requires the number of polls to be included in the schedules returned to the assessor, and it would be doing violence to the intelligence of the legislature to hold that this is a mere useless formality, and that the assessor has no duty to perform in the premises. Why require the number of polls to be returned to such officer, except for the purpose of having the same extended in order that the poll tax may be collected as other taxes are collected? We think it is clearly his duty to extend the military poll tax with the other taxes upon this assessment list. This is in accordance with the uniform practice that has prevailed in this state for many years. Poll taxes have been levied and assessed from the earliest formation of the territorial government, without question; and while it is true that this does not make such levy and assessment right, a precedent so long followed is entitled to great weight.

The levy of this tax is not in violation of section 11 of article X of the state constitution, as this section only fixes a limitation upon the rate of taxation for state purposes on property, and a poll tax is not a tax upon property. It is a capitation tax; that is, a specific sum levied upon each person. It is a fundamental principle, that the taxing power of the state is unlimited, except as the same is restricted by the constitution, and there is no constitutional limitation with reference to a capitation tax. In the case of R. R. Co. v. Peniston, 18 Wall. 5, Mr. Justice Strong says:

“No one ever doubted that before the adoption of the Constitution of the United States each of the states possessed unlimited power to tax, either directly or indirectly, all persons and property within their jurisdiction, alike by taxes on polls, or duties on internal production, manufac ture, or use, except so far as such taxation was inconsistent with certain treaties which had been made. * * * The extent to which it shall be exercised, the subjects upon which it shall be exercised, and the mode in which it shall be exercised, are all equally within the discretion of the legislatures to which the states commit the exercise of the power.”

In the return to the alternative writ, it is shown that the respondent Ames, on the 3d day of June, 1896, received from the governor an order, dispensing with the military enrollment for 1896, and that in March, 1897, he received from the same source a like order, dispensing with the military enrollment for 1897; and the respondent says, that in obedience to such order he has refrained from preparing the list of persons liable to enrollment in Ms county. As this is a proceeding to compel the extension of the military poll tax for the year 1896, the order relating to 1897 will not be considered. An examination of the statutes discloses that the military enrollment and the assessment of a military poll tax are two separate and distinct tilings. The military enrollment is made for the purpose of ascertaining the number, names, etc., of all persons subject to military duty. The governor is given the power to dispense with this enrollment whenever he sees fit, or he may order such enrollment at any time whenever, in his opinion, there is a necessity therefor. Such enrollment has nothing to do with the levy of the military poll tax.

It is contended that it is the duty of the commissioners to furnish the assessor with a list of the male Mhabitants of the state subject to the payment of tliis tax, and that no duty devolves upon the assessor until such list is furnished. The statute—-2 Mills’ Ann. Stats, sec. 3082—provides that the commissioners shall cause to be levied an annual poll tax. There is nothing in the statute which requires the commissioners to designate by name the persons subject to such tax; this is properly left with the assessor, with his better facilities for ascertaining the facts requisite for such action.

There are several other statutes of the state, whereby it is made the duty of the county commissioners to cause to be levied certain other taxes, etc. We think such statutes are complied with by the passage of a resolution, as in this case, providing for the levy of such taxes, the mere clerical work of extending the tax devolving upon the county assessor. This has been the uniform practice in the past, and we see no reason to depart from it at this time.

Sec. 3082, Mills’ Ann. Stats., provides that the military poll tax “shall be assessed and collected in the same manner as is now or may be by law provided for the assessment and collection of other state poll taxes.” It is contended that there is no provision for either the assessment or collection of other state poll taxes; and hence, it is argued, that the military poll tax can neither be extended by the assessor or collected by the treasurer. Literally speaking, at the time of the passage of the act there was no other state poll tax, but we must ascertain the intent of the legislature at the time the original act was adopted, of which the above section is a part. This was under the territorial government, and the word “ territory ” was originally used instead of the word “ state,” so that the statute read “ as other territorial taxes,” and the word “ state ” was subsequently substituted for territory, in compliance with the general law, passed upon the organization of the state, for the purpose of making the statutes conform to the changed conditions incident to a state government. See General Laws, 1877, p. 9, sec. 1.

Under the territorial government poll taxes in various amounts were from time to time levied by the several boards of county commissioners in their respective counties. It is shown by the brief of the attorney general that these taxes were extended by the county assessors; and collected by the county treasurers. Such practice having been followed for thirty years or more, it should not now be set aside for any but the weightiest reasons.

An examination of the statute shows that it is made the duty of the county commissioners to levy this military poll tax in their respective counties, and the statutes provide severe penalties for their failure or neglect so to do. It is also provided that the county treasurer shall keep the money collected from the military poll tax separate from other funds, and at stated intervals, transmit the same to the state treasurer. Mills’ Ann. Stats, sec. 3083.

• It is provided that every county treasurer who shall neglect to send this money td the state treasurer, shall be guilty of a high misdemeanor, and severely punished. Mills’ Ann. Stats, sec. 3085.

By another section a penalty is imposed for failure or refusal to pay these taxes; and by still another it is made the duty of all residents of the county to return to the assess- or a list of property, together with the number of polls. An examination of these sections shows conclusively, that it was the intention of the legislature that this tax should be levied and collected the same as other taxes, and the assessor should, consequently, have extended the same upon his lists, and the treasurer, upon being furnished with the proper data, should proceed to collect such a tax, as other taxes are collected.

That the general revenue laws of the state may be invoked for the collection of this tax, is apparent from the very title of the act, which is, “An act concerning the enrollment and organization of the militia of the state; prescribing the districts, number and rank of the officers thereof, and defining the duties of such officers; to provide for the more efficient collection of the military poll-tax, and to repeal,” etc.

Aside from what has already been said, we think it would be dangerous to government to allow purely ministerial officers, such as respondents, to question the constitutionality of these various acts, or to refuse to extend any tax when required so to do. If the county assessor of Arapahoe county may refuse to extend the military poll tax, the county assessor of Pueblo county may refuse to extend the tax for the state university, while the county assessor of some other county may refuse to extend the tax for the state school of mines, or for general purposes. To permit this would result in seriously crippling the state government, and compel state institutions which derive their support from the state, to close their doors at the will or caprice of county assessors or county treasurers. It is always better for ministerial officers to obey the law, particularly where a violation of its provisions may lead to such disastrous consequences. This has special force where a statute has been for a long time acquiesced in, and the procedure thereunder has become fixed, as. in this instance. People ex rel., etc., v. Salomon, 54 Ill. 40.

For the reasons given, the demurrer to the answer of assessor Ames should have been sustained, and the peremptory writ of mandamus ordered. As a matter of precaution, the treasurer has been made a party to this action, as it is alleged that it is his duty to collect this tax. In his answer, this officer has expressed a willingness to collect tire same when furnished with the proper authority for that purpose, or with a list of persons liable to the payment of the tax; but says that he is without authority to collect the tax unless he finds it extended upon the assessment roll. As we have already determined that it is the duty of the assessor to extend the military poll tax, upon the assessment roll, it is unnecessary further to consider the answer of the treasurer. We may say, however, in conclusion, that this tax having been levied, in pursuance of law, it was the duty of the proper officer to collect the same, and had we reached a different conclusion, with reference to the duties of the assessor, we should, nevertheless, hold that it was the duty of the treasurer to collect the tax. The Iowa Ry. Land Co. v. Sac County, 39 Iowa, 124; The Iowa Ry. Land Co. v. Carroll County, 39 Iowa, 151; Parker v. Sexton & Son, 29 Iowa, 421.

The judgment of the district court will he reversed, with directions to enter the peremptory writ of mandamus.

Reversed.