Milford chronicle., 1922-02-24
COURT DECLARES STATE
FILING LAW TO BE VALID
Continued from page u

be made under this Act, and no tax
shall be paid"
In Section of the same Article,
the word taxable" is defined to be,
"a natural person twenty-One years
of age or over who is citizen or res
ident of the State of Delaware, or a
minor with a net income of one thOus-
and dollars or more who is a citizen
or resident of the State of Delaware"
In Article 8, the word taxable" is
defined to mean, "Any individual, part
nership or corporation subject to
taxes imposed by Articles l and IL of
this Act"
By Section 10 of Article 8, it is pro-
vided as follows:
Upon filing the annual return pro-
vided for under Articles 1, II and Ill
of this Act, the taxable shall pay to
the Tax Department a filing fee Of
Three Dollars. The Tax department
shall not receive and file a return un-
til said filing fee is paid, and the Of
fer to file such return without paying
such fee shall not be construed to be
a compliance with the requirement 10
file a return and shall not relieve the
taxable from the penalties provided
for failure to file such return"
Paragraph 7, Section % of Article
8, provides that "Any taxable VINO
shall refuse or neglect to make the
return required to be made under Ar
ticle 1 of this Act within thirty days
after the last day for making such
return, or who shall refuse or neglect
to pay the filing fee required to be
paid upon the filing Of such return,
shall be deemed guilty of misde-
meanOr, etc"
The relatOr in this case, a taxable
under the Act sought to make his in
come tax return without paying the
filing fee, and the Tax Department
declined to accept the same, where
upon the relator filed a petition ask
ing that a writ Of peremptOry manda-
mus be issued compelling the Tax De-
partment to receive and file his re-
turn without the payment of the filing
fee. The Tax Department, respondent,
has moved that the relatOr's petition
be dismissed because it does not ap-
pear from anything alleged therein
that the relator is legally entitled to
the relief sought.
The relatOr claims that he should
not be compelled to pay the filing fee,
because the act, in so far as it re-
quires the payment of such fee upon
making his income tax return, is un-
constitutional and void.
The cOnstitutiOnally of this act is
attacked on several grounds, but be-
fore stating them specifically, the re-
lator makes the following contention:
The so-called filing fee" of three
dollars provided to be paid by tax
able when filing his return is in the
nature of tax, and the method OF
raising it and not the purpose or OBJ
iect for which it is to be expended,
determines the character of the tax.
1t must be conceded, we think, that
the filling fee" provided for in the
act is a tax, or, as the relator con-
tends, in the nature of a tax. This is
not seriously controverted by the
State.
It is none the less a tax because
called by some name. It comes clear
ly within the definition of tax found
in Ruling Case Law on Taxation"
2, Pars. 13 and IA, and cases cited, |
viz: "a tax is an enforced contribu-
ton of money or other property as
sessed in accordance with some reas-
enable rule Of apportiOnment by au-
thority of the sovereign State on per-
sons or property within its jurisidic-
ton for the purpose of defraying the
public expenses"
If the primary purpose of the Leg |
islature in imposing such a charge is
revenue, it is tax. 26 R. C. L. ajax !
ation," Par. II; State v. AshbroOk,
48 L. R. A. 265, So S. w. 627, 154 Mo. |
375; Royal v. Virginia, 116 N. S. 572, |
20 L. Ed. 735.
Courts will examine the Act and as
certain the purpose of the provision
by it's probable or naturally anticipat- |
ed effect. State v. Ashbrook, (Supra); |
Robinson v. Norfolk, 80 S. E. 1852; Is |
L. R. A. IN. 81 294.
Note-36 Am. Rep. 522.
{ If the so-called fee or regulation
is obviously in excess of the cost Of
inspection, and service to be render
ed, and the like, it is a tax. A charge |
of a fixed amount bearing no relation
to the cost of a service rendered, such
as inspection, and the like, and pay
able into the general treasury of the
State, is a tax. Smith v. Alabama, 124
N. S. 465, 81 L. Ed. sos; Postal Tel.
Co. v. Taylor, 1872 U. S. GA, 48 L. Ed.
342; Georgia Packing Co. v. Macon,
60 Fed. TIA; % L. R. A. IT'S; Munlen-
brick v. L. Branch Convis, AZ N. J. L.
364, SO Am. Rep. 518 and notes; Cow
ley on Taxation, 3rd Ed 1141; Pitts
burgh R. Co. v. State, 49 Ohio st. 189;
80 N. 3. 436, 16 L. r. A. $50, rs r. G.
L. Taxation" par. 6.
The specific grounds on which the
filling fee" part of the act is claimed
to be unconstitutional are the fol-
lowing:
1. The legislature can provide for
the raising of money from the citizens
of the State for revenue purposes,
only for public purpose, and the act
in question does not disclose for what
purpose the filling fee' is to be used.
2. The Constitution, Section 16 Of
Article 2, provides that mo bill or
Joint resolution, except bills appro-
priating money for public purposes,
shall embrace more than one sub
ject, which shall be expressed in it's
title;" and the act in question em-
braces two subjects, viz: taxes and
filing fees, only one Of which is ex-
pressed in its title.
8. The provision in the act in ques-
ton which provides, that upon filing
the return provided for under Arti-
cles I, II, and III of this act, the tax
able shall pay the tax department
filing fee of three dollars" violates
Section of Article Of the Constitu-
ton which is as follows: S
"The General Assembly shall pro- ]
Co., Torrrrs,,rr onH oO1Ioafinor !