Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1923-08-01

roads. State vs.. Maine Central r. r.
Co. "a Maine, 376; Express Com
panies, State v. B. & p. Express Co.
100 Maine, 27S; Telegraph Companies,
State v. w. Y. Tel. Co. 70 Maine, 51S;
Inheritance or Succession taxes, State
v. Hamlin, Sc Maine, 495. Within this
general class are automobile regis
tration taxes and occupation taxes.
such as licensed auctioneers, r. s.
Oh. Al, Sec. 8, ana itinerant vendors,
r. S. Oh. Al, Sec. II.
In this respect Of absence Of limita-
ton upon the power Of the Legisla-
ture to impose excise taxes the Con-
stitution Of Maine differs from that of
New Hampshire which restricts the
Legislature of that State Ito propor-
tional and reasonable assessments,
rates and taxes. The Court has con =
strued this to include excise as we'll
as property taxes. Hence it Is that
the New Hampshire Court held an in
heritance tax with sliding scale of
rates unconstitutional in Curry v.
Spencer. 81 N. H. 624, while the
Maine Court under our Constitution
has held a similar law valid. State
". Hamlin supra.
Because of the same restriction
the New Hampshire Justices in an
advisory opinion to the House of
Representatives under date of April
2. 1923. held proposed tax levied
upon the sale of gasoline unconstitu-
tional as an excise tax, although
they sustained it as in the nature Of
a toll for the use of public highways
when the sale of the commodity is
confined to consumption in the
operation of vehicles upon the high
way.
The Constitution Of Massachusetts
also differs from that of Maine in
this respect. 1t limits the legislative
authority and power regarding
excise taxes in these express words:
ITO impose and levy reasonable
duties and excuses upon any produce
goods. wares, merchandise and COM
modities, whatsoever brought into,
produced. manufactured or being
within the Commonwealth. The
earlier cases construed this provision
literally and the word Commodity"
has been held to include privileges,
inheritances and stock sales. Port
land Bank v. Apthorp. IL Mass. 252;
Commonwealth v. Bank, Allen, 428.
In 1888, a narrower construction
was adopted. Gleason v. Mckay. 134
Mass. 419, which was criticized in
Minot v. Winthrop. 1862 Mass. 113.
but in part affirmed in O'Keefe v.
construction of this limitation was
a matter of disagreement among the
Justices in Opinions of Justices, 1876
Mass. SOB. and in consequence of this
divergence Of views the Attorney
General of Massachusetts, in an opin-
ion to the House of Representatives
dated May IA. 1928, upon the con-
titutionality of a proposal gasoline
tax bill in that State said that he
would not hazard an opinion upon its
validity as an excise tax, but he sus-
tanned 1t on the New Hampshire
theory as toll for the use of the
public highways of the Common
wealth.
In Maine. however. in the absence
of any such constitutional restriction
we are of the opinion that the Legis-
lature has the power to assess the
tax in question as an excise tax upon
the selling of gasoline in this State.
A similar question arose in New
Mexico where the Constitution pro-
vides that taxes levied upon tangi-
bile property shall be in proportion
W lIlc value tIltICOl illNI Siidi
be equal and uniform upon subjects
of taxation of the same class" The
legislature passed an act imposing
an excise tax of two cents Cor each
gallon of gasoline sold or used and
an annual license tax of $50. for
each distributing station or place of
business. Its constitutionality was
challenged on the ground among
others that it was property tax and
not levied according to value. Upon
this branch of the case the Supreme
Court of the United States said;
"The tax imposed by the act under
consideration upon the sale or use of
all gasoline sold or used in this
State is not property taxation, but
in effect, as in name, an excise tax.
We see no reason to doubt the power
Of the State to select this commodity
as distinguished from others, in
order to impose an excise tax upon
its sale or use: and since the tax
operates impartially upon all. and
with territorial uniformity through
out the State. we deem it equal and
uniform upon subjects of taxation,
within the meaning of the State
Constitution" Bowman ". Con-
t!nental Oil Co. 256 U. s. SAP. ode
cided 1920 and see Askren v. Cont
mental Oil Co. 252 U. S. 444. the same
case previously heard before the
Court.
The same reasoning applies with
even greater force in Maine where
our Constitution imposes no restric-
lions whatever upon the imposition
Of excise taxes.
1t should be added however that
any act which imposed excise taxes
upon the sale OF any commodity in
such a manner as to create burden
upon or to interfere with interstate
commerce would he violation of
the commerce clause of the Constitu-
ton Of the United States and would
to that extent be void. Constitution