Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1923-08-01
Gasoline Tax Nav -
Legally Be Imposed

Continued from Page one)
some at least Of the principles there
IN involved, Pub. Laws 1928, Oh. 224
the individual rights Of citizens NAV
De thereby affected. Those rights can
be determined only in a judicial pro-
ceedlng where the privilege Of hearing
ana argument is accorded, and ought
not to be prejudiced by an advisory
opinion, which although it does not
have the binding force of a Judgment
may yet be regarded as detrimental
to the interests of those to whom it
Is adverse.
However, as the questions relate to
certain abstract propositions of law
ana not to any existing statute, with
this expression Of respectful protest,
tnese Justices have concluded to unite
with their associates in the unani-
nous opinion which follows.
Question /. HAS the LEGISLATURE
the right and authority under the
Constitution of the State to levy and
assess reasonable tax or charge per
gallon upon all gasoline and other in
ternal combustion engine fuel except
Kerosene sold within the State. the
net proceeds of such tax to be used
IN the maintenance Of such highways
and bridges, as follows: Fifty per
cent. thereof for the maintenance of
State and State aid highways, inter-
state, intrastate. and international
bridges, and the balance to be added
to the fund for the construction of
third class highways, so-called"?
Answer. The answer to this ques-
ton depends upon the nature of the
contemplated tax. If a property tax,
It obviously offends the Constitution
OF Maine. Article TX, Sec. 8: "All tax
es upon real and personal estate as
sessed by authority of this State shall
be apportioned and assessed equally
according to the just value thereof"
Amendment XXXVI as to Intangible
property Is not involved. To single
out any particular species of proper
ty, or any particular commodity, gas
oline, internal combustion engine en-
CINE fuel or what not and impose a
property tax upon it unequal in COM
parison with the tax upon other COM
modities as to value would be void.
The equal apportionment and assess
ment upon all real and personal es-
tate required by our organic law
would be violated. This proposition
| Is too plain for discussion
If however the proposed tax is an
excise tax then it would be authorized
and valid. The vital words of this
propounded question are "a reason
able tax or charge per gallon upon all
gasolene etc, --- sold within the
State. In other words, it Is not the
value OF the gasoline and fuel as
property owned which is the subject
Of taxation but the sale of and deal
ing in the article whatever it's value.
The tax Is measured not by the worth
Of the commodities but by the amount
of business transacted in dealing with
them computed by gallons, and this
fits the definition of an excise tax
which is: "a tax imposed upon the
performance of an act, the engaging
in an occupation or the enjoyment of
a privilege. 26 r. c. L. P. 236.
In this State the full power of tax
alton is vested in the Legislature and
is measured not by grant but by limi-
tation. "As to the executive and the
judiciary the Constitution measures
the extent Of their authority, as to
the Legislature it measures the limit
atoms upon its authority. Sawyer ".
Gilmore. 100 Maine. 1863; Laughlin v.
Portland, Ill Maine. 4S6. The pro-
vision before quoted marks the limit
alton of legislative power in the tax
alton Of real and personal estate. But
| our Constitution contains no provi-
sion limiting the legislative imposi-
ton of excise taxes or, to use the
language of the Court: Our Consti-
tuition imposes no restriction upon
the Legislature in imposing taxes up
on business. State v. Telegraph Co.
70 Maine, 518. 531.
Acting in pursuance Of its power
the Legislature has imposed excise
taxes from time to time in various
forms. using the term excise in the
sense Of other than a property or poll
tax. Many Of these have been passed
upon and upheld by the Court, thus:
corporate franchise tax upon rail-