106 P. 455 | Idaho | 1909
— This action was brought by the state, respondent, against the defendant, appellant, to recover the sum of $265, alleged to be due under the provisions of an act approved March 11, 1909 (Laws of 1909, p. 72), as follows:
“An act to provide for the payment of a grazing license fee on sheep entering the state of Idaho from other states and territories, and providing a penalty for the violation thereof.
“See. 1. Any person, company or corporation attempting to bring, or causing to be brought, from any other State or Territory any sheep into the State of Idaho in any manner, except by shipping the same through the State by railroad train, shall, before crossing the State line, notify the State Live Stock Inspector of the district to be entered or the State Veterinary Surgeon, of such proposed action, which notice shall set forth the number of sheep, the brand thereon, the locality from which such sheep came and through which they have been driven, and accompanying such notice with a grazing fee equal to the sum of five cen£s (5c) per head for the total number of sheep embraced within said notice. All fees so collected shall be placed in the State Treasury to the credit of the State Live Stock Sanitary Fund.
“Sec. 2. Any person, company or corporation violating the provisions of this Act shall, upon conviction thereof, be fined in a sum not less than one hundred ($100) nor more than fifteen hundred dollars ($1500.00) together with the costs of prosecution.”
A demurrer was filed to the complaint in the lower court upon the following grounds: First, that the complaint fails to set forth facts sufficient to constitute a cause of action; second, that the court has not jurisdiction of the subject matter of the action; third, that the act of March 11, 1909, upon which the action is founded, is unconstitutional and void, for the reason that it conflicts with secs. 8 and 10 of art. 1,
The contention of the appellant is that it cannot be taxed under the provisions of the act involved in this case, because, first, such taxation is an interference with interstate commerce and therefore violates art. 1, see. 8, of the federal constitution, which provides that the Congress shall have power “to regulate commerce .... among the several states”; second, such taxation is an impost on imports and therefore violates art. 1, sec. 10, of the constitution, which provides among other things: “No state shall, without the consent of the Congress, lay any imposts or duties on imports .... except what may be absolutely necessary for executing its inspection laws”; third, such taxation infringes upon the rights of citizens of other states and therefore violates art. 4, sec. 2, of the constitution, which provides that “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states”; and fourth, that such act violates sec. 5, art. 7 of the constitutional Idaho, which provides, “All taxes shall be uniform upon the same class of subjects within the territorial limits, of the authority levying the tax, and shall be levied and collected under general laws, which shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal.”
It has been held by the supreme court of the United States since the decision in Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23, down to the present time that the federal constitution reserves to the states the power to pass inspection laws and to lay imposts and duties on imports or exports necessary for executing and carrying into effect such inspection laws. (Gibbons v. Ogden, supra; State v. Duckworth, 5 Ida. 642, 95 Am. St. 199, 51 Pac. 456, 39 L. R. A. 365; In re Kinyon, 9 Ida. 642, 75 Pac. 268; Turner v. Maryland, 107 U. S. 38, 2 Sup. Ct. 44, 27 L. ed. 370; Brimmer v. Rebman, 138 U. S. 78, 11
We think that it is also settled by the same line of authorities and others that a state cannot, under the guise of exercising its police power, enact inspection laws which burden foreign or interstate commerce or impose upon property or products, brought into a state from another state, burdens or taxes more onerous than are imposed upon like property or products of the state enacting such legislation. (In re Kinyon, 9 Ida. 642, 95 Am. St. 199, 51 Pac. 456, 39 L. R. A. 365; 7 Cyc. 423; Guy v. Baltimore, 100 U. S. 434, 25 L. ed. 743; Walling v. Michigan, 116 U. S. 446, 6 Sup. Ct. 454, 29 L. ed. 691; Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757, 43 L. ed. 49; Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. ed. 224.)
The question then arises in this case, whether the act under consideration imposes a burden upon interstate commerce by levying a tax which discriminates against property brought into the state from another state, or whether the act under consideration can be held to be an inspection law, enacted for the purpose of suppression and prevention of disease among sheep and livestock of the state and to protect the health of such livestock.
The objects and purposes of the act under consideration, as disclosed by the title, are “to provide for the payment of a grazing license fee on sheep entering the state of Idaho from other states and territories and providing a penalty for the violation thereof.” In other words, it is an act as disclosed by the title to require persons who bring sheep into this state to pay a grazing fee. The title does not provide that a grazing fee shall be paid generally by persons grazing sheep within
It will thus be seen that under the provisions of this act, it discriminates in favor of sheep produced within the state, and only requires the payment of a grazing fee upon those brought into the state. Counsel for respondent, however, contends that the effect of this statute is to provide for and promote the health, safety and well-being of the livestock of the state; and that this is true by reason of the fact that the grazing fee thus provided for is required to be paid into the state livestock sanitary fund, which is the fund out of which the expenses and costs are paid in the enforcement of the laws of the state regulating the sanitary and healthful condition of the livestock of the state. It will be observed from an examination of this statute that nothing whatever is said with reference to the inspection of the sheep brought into the state and upon which the grazing fee is required to be paid. No duty whatever is imposed upon the state veterinary surgeon with reference to an examination or inspection of such sheep. No requirement is exacted that the sheep shall be healthy before they are admitted into the state, or the grazing fee accepted. No reference or provisions are to be found in the act which in any way indicate that the grazing fee required to be paid is for the purpose of inspecting the sheep after they arrive in the state, or that the charge is reasonable or for the purpose of compensating the officers for any duty required to be performed by them under any of the laws of the state.
This statute is clearly and purely an inspection statute which provides for the inspection of sheep brought into the state from any other state or territory, and prescribes the duties of the person bringing such sheep in and the duties of the inspector with reference to the same. If the act involved in this ease operates as an inspection law, then we have two provisions of the statute which provide for the inspection of sheep brought into the state. But it will be observed that both of these statutes relate to sheep brought into the state from another state, the former requiring a grazing fee to be paid and the latter requiring that such sheep shall be inspected; and a comparison of these two statutes, it seems to us, clearly indicates that in enacting the statute providing for a grazing fee the legislature did not intend it to operate as an inspection law but as a tax pure and simple, levied upon sheep brought from a foreign state into the state of Idaho and levied in discrimination against the products of other states. The statute further provides generally for the inspection of livestock in each district, and if the theory of respondent be correct, sheep brought into the state from another state are required to pay a grazing fee and thereafter be subject to both special and general inspection under the provisions of the statute. We find that under the provisions of see. 1205 of the Rev. Codes, “The boards of county commis
Under the provisions of this statute, the person bringing sheep within the state, prior to the annual levy and having such sheep within the state at the time of such levy, is required to pay the tax thus provided for to be paid into and in support of the livestock sanitary fund, and. thereby contributes to the livestock sanitary fund the same tax and assessments as are made against sheep produced within the state; and under the provisions of the act involved in this case, in addition thereto he is required to páy the grazing fee of five cents per head to the same fund for the same purposes as that for which the special tax levy is made. This grazing fee, whether or not it be used for the purpose of ■promoting the health and welfare of the stock within the state, is a fee that is exacted only from those bringing sheep within the state from another state, and not based upon the (benefits arising from any duty performed by the state to the sheep brought in, in the way of inspection, or services rendered in or about the care of such sheep or the preservation of their health and general welfare.
A bare inspection of the statute, it seems to us, clearly indicates that its provisions are in the nature of a tax and not an inspection statute, and that it is' levied for the purpose of discriminating against sheep brought within the state from another state. We are unable to discover any statute which in any manner provides for the payment of the same or a similar fee by the owners of sheep produced within the state. The grazing fee thus provided for is clearly in excess and in
Under the authorities heretofore cited, we have no doubt but that the state has the power to pass an inspection law requiring that all livestock brought into the state shall be inspected, and requiring a duty to be paid for such inspection and to carry into effect such inspection law; and the legislature, having already provided for the inspection of livestock brought into the state, need only have provided for the fee or duty to be charged for such inspection, and had it been intended that the act under consideration should be treated or construed as an inspection law, the legislature no doubt would have so indicated in the act involved in this case and not provided for charging a grazing fee for all sheep brought within the state from other states and territories.
We are for these reasons clearly of the opinion that the act involved in this case is unconstitutional and void. The judgment of the lower court is reversed, and the trial court directed to sustain the demurrer. Costs awarded to appellant.