Ohio) (148 N.E.) STATE ex rel. JANES v. BROWN, Secretary of State. (No. 19106.) (Supreme Court of Ohio. May 19, 1925.) (Syllabus by the Court.) 1. Statutes 351⁄2-Gasoline Tax Bill is law providing for tax levy, and, under Constitution, is not subject to referendum. House Bill No. 44 (111 O. L. p. 294) is a law providing for a tax levy and comes within the provisions of section 1d of article II of the Constitution of Ohio, "laws providing for tax levies shall not be subject to the referendum." 2. Licenses 7 (2)—Gasoline Tax Bill held not to lay tax on property in violation of Constitution requiring property to be taxed by a uniform rule, but lays tax on use of property. House Bill No. 44 does not lay a tax upon property, in violation of the provisions of section 2 of article XII requiring property to be taxed by a uniform rule at its true value in money, but does lay a tax upon the use of such property for certain designated purposes. 3. Statutes 107(7)-Gasoline Tax Bill held to appropriate funds for maintaining and repairing highways and streets of state, and not invalid as containing more than one subject. House Bill No. 44 appropriates the funds to be collected thereunder to the following purposes and no other: To the state for a rotary fund to be used in refunding taxes as provided therein; to the state to be expended by the director of highways and public works for the purpose of maintaining, repairing and keeping in passable condition for travel the roads and highways of the state now or hereafter required by law to be maintained by the department of highways and public works; to the counties of the state to be used for the sole purpose of maintaining and repairing the county system of public roads and highways within such counties, and to the municipalities of the state for the sole purpose of maintaining and repairing the public streets and roads within such corporations. 4. Highways9734, New, vol. 16A Key-No. Series "Current expenses" as used in Constitution includes expenses of keeping state property in repair, and includes maintenance and repair of roads as distinguished from new construction. The phrase "current expenses," as used in section 1d of article II of the Constitution, in addition to including the expenses incident to the officering and maintaining of the state government, includes the expense of keeping in repair and maintaining the property of the state government, and, as applied to roads, includes the maintaining and repairing thereof as distinguished from new construction. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Current Expenses.] 5. Licenses 33-General provisions of section of Gasoline Tax Bill, and incorporation of other section therein, held not to modify specific limitations or purposes for which appropriations may be used. The general provisions of section 14, of House Bill No. 44, and the incorporation therein of the provisions of section 2 by reference, are not effective to modify the specific limitations contained in section 12 upon the purposes for which the appropriations in that section made can be used. 6. Statutes 194, 207-Court gives effect to specific limitations of act over general provisions, where such limitations and provisions cannot be reconciled; ambiguous language of act not permitted to modify certain and definite provisions. In construing an act, the court will give effect to the specific limitations therein contained over the general provisions thereof, where the specific and general provisions cannot be reconciled, and will not permit ambiguous language to modify certain and definite provisions. Mandamus by the State of Ohio, on the relation of Charles C. Janes, against Thad H. Writ denied.Brown, Secretary of State. [By Editorial Staff.]. The facts are stated in the opinion. J. F. Atwood and C. D. Saviers, both of Columbus, and Walter D. Meals, of Cleveland, for relator. C. C. Crabbe, Atty. Gen., H. H. Griswold, of Chardon, and Wilbur E. Benoy, of Columbus, for defendant. Taft, Stettinius & Hollister, of Cincinnati, amici curiæ, for the Ohio State Grange. Ballard, Jones & Price, of Columbus, amici curiæ, for the Ohio Farm Bureau Federation. ROBINSON, J. The petition in this case recites that the relator on the 25th day of April, 1925, filed with the respondent a written application for the registration of a motor vehicle, together with a tender of the sum of $6, alleges that the $6 was the fee and taxes required by law to accompany the application; that he requested the respondent to register said motor vehicle and issue to him a certificate of registration and license plates; and that the respondent, contrary to the duty enjoined on him by law, refused to register the motor vehicle, and refused to issue the certificate and license plates therefor, for the reason that the fees and taxes tendered were not the fees and taxes required by law, and the petition prays for a writ of mandamus requiring respondent to issue the certificate and plates. To this petition the respondent filed a general demurrer, and thus are raised many questions involving House Bill No. 44, known as the "Gasoline Tax Bill," a decision of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes all of which is necessary for the determina-, or compound such motor vehicle fuel for use, tion of this case. Provision by statute had theretofore existed requiring the payment of a tax upon the operation of motor vehicles upon the public highways of the state. Sections 6292 and 6295, General Code. [1] House Bill No. 44 amended those sections, in general reducing the tax upon such motor vehicles, but for the calendar year 1925, by reason of the repeal of the provisions contained in the original sections reducing the tax for the operation of motor vehicles after April 1st, it acted as an increase for the relator, and it is the contention of relator that, but for the other provisions of House Bill 44, the amendment to sections 6292 and distribution, or sale in Ohio, and provides that, when any such person, firm, etc., import such motor vehicle fuel into the state and sell the same in tank car lots, or in its original containers, to any purchaser for use, distribution, or sale and delivery, then the purchaser and not the seller shall be deemed the dealer. Section 2 of the act, after stating the purposes for which the revenue is to be raised, provides: "There is hereby levied and imposed on the sale or use of each gallon of motor vehicle fuel sold or used by any dealer, as herein defined, within the state of Ohio, an excise tax of two cents" 6295 of the General Code would not have-and exempts from taxation motor vehicle been enacted by the General Assembly, and that, if House Bill No. 44 be unconstitutional, fuel "sold in tank car lots to be used wholly for purposes other than propelling motor vehicles on the public highway," motor vehicle fuel exported or sold for exportation from the state of Ohio to any other state, or to any foreign country, and motor vehicle fuel sold by a dealer to the United States the amendments to sections 6292 and 6295, General Code, having been made because of the other provisions of House Bill No. 44, would not be separable therefrom, and would be for that reason also unconstitutional and void; that, if not unconstitutional, House Bill No. 44 is subject to the referendum, and therefore does not go into immediate effect; that original sections 6292 and 6295 of the General Code were therefore in full force and effect on the 25th day of April, 1925. That original sections 6292 and 6295 of the General Code were "laws providing for tax levies" was definitely decided by this court in the case of Saviers v. Smith, Sec'y of State, 101 Ohio St. 132, 128 N. E. 269. The only change in those sections is a reduction in the amount of tax exacted. If, then, there is any merit in the contention of the relator, it must be because other provisions of House Bill No. 44 conflict with some provision of the Constitution or are subject to the referendum. [2] Is the tax levied by the provisions of House Bill No. 44 a tax upon property, and therefore in violation of section 2 of article 12 of the Constitution, requiring property to be taxed by a uniform rule at its true value in money? The act is entitled: "An act to provide for the adequate maintenance of the public highways and streets of the state, to supplement existing revenues available for road and street maintenance and repair by the levy of an excise tax upon the sale of motor vehicle fuel, and the apropriation of the proceeds thereof, and to transfer to the state the duty of maintaining the entire main market road and intercounty highway systems thereof and to amend sections 6292 and 6295 of the General Code." Section 1 of the act provides that the word "dealer" shall include persons, firms, etc., who import or cause to be imported into the state motor vehicle fuel for use, distribution, or sale in Ohio, and persons, firms, etc., who produce, refine, prepare, distill, manufacture, government. Section 6 provides that each dealer shall pay to the treasurer of the state the excise tax due on the sale or use of motor vehicle fuel sold or used by him in the preceding calendar month. Section 9 provides that any person, firm, association, etc., who shall use any motor vehicle fuel on which the tax has been paid for the purpose of operating or propelling stationary gas engines, tractors not used on highways, motor boats, or aircraft, or who shall use any such fuel upon which the tax has been paid for cleaning or dyeing, or any other purpose than the propulsion of motor vehicles operated or intended to be operated in whole or in part upon the highways of the state, shall be reimbursed to the extent of the amount of the tax so paid on such motor vehicle fuel, and provides the manner of reimbursement. The act does not lay a tax of two cents per gallon upon gasoline and other volatile and inflammable liquids derived from petroleum as such, but only upon gasoline and other volatile and inflammable liquids derived from petroleum when used, distributed, or sold in Ohio for motor vehicle fuel in motor vehicles, used or to be used in whole or in part upon the highways and streets of the state. The tax is upon the enjoyment of the privilege of using motor vehicle fuel in traveling upon the highways and streets of the state, and comes clearly within the definition of an excise tax as defined by this court in the case of Saviers v. Smith, supra: "An excise is a tax imposed on the performance of an act, the engaging in an occupation or the enjoyment of a privilege, and by the provisions of section 10, art. 12, of the Constitution, specific authority has been conferred for the levying of such a tax." (148 N.E.) In the same case this court further declared: "Under the general grant of legislative power conferred by section 1, art. 2, of the Constitution, the Legislature may tax rights, privileges, and franchises." This court is unanimously of the opinion that the act does not levy a property tax, and does levy an excise tax, and does not come within the inhibition of section 2 of article 12 of the Constitution. "This action, brought by the plaintiff, was filed for the express purpose of having a judicial determination of the question: 'Is Substitute House Bill No. 44, Mr. Brown, passed by the Eighty-Sixth General Assembly and put in effect by the tax commission of the state of Ohio immediately following its passage, subject to a referendum by the people of the state of Ohio, and therefore not in effect for a period of 90 days after its passage, or is it in immediate effect?'" The contention that that portion of secUpon the question whether the tax imposes tion 2 of the act, "for the purpose of proa burden upon interstate commerce, we are viding revenue for maintaining the main content to follow the decisions of the United market roads and intercounty highways of States Supreme Court in the cases of Texas this state in passable condition for travel, Co. v. Brown, 258 U. S. 466, 42 S. Ct. 375, for repairing the damage caused to such 66 L. Ed. 721, Sonneborn Bros. v. Cureton, highway system by motor vehicles used on Atty. Gen., 262 U. S. 506, 43 S. Ct. 643, 67 the same, for widening existing surfaces on L. Ed. 1095, Askren, Atty. Gen., v. Continen- such highways where such widening is rental Oil Co., 252 U. S. 444, 40 S. Ct. 355, 64 dered necessary by the volume of motor veL. Ed. 654, and Bowman, Atty. Gen., v. Con-hicle traffic thereon," authorizes the expenditinental Oil Co., 256 U. S. 642, 41 S. Ct. 606, ture of a portion of this fund for other than 65 L. Ed. 1139, wherein it was held, in sub-current expenses, and that the appropriastance, that, where interstate shipments tion of the fund is therefore in part an aphave reached their destination, and have bepropriation for other than current expenses, come a part of the stock of the consignee, is the only question in this case which has their interstate character no longer attaches, given this court any concern. and the goods are subject to state legislation. Section 1, art. 2, of the Constitution of [3] The contention that the act violates Ohio, provides: the constitutional provision that no bill shall contain more than one subject may be suc"The legislative power of the state shall be cessfully answered by stating that the sub- vested in a General Assembly consisting of a ject and only subject of this bill, including Senate and House of Representatives but the the amendments to sections 6292 and 6295 people reserve to themselves the power to proof the General Code, is the creation of a fund reject the same at the polls on a referendum for the maintenance and repair of the high-vote as hereinafter provided. They also reways and streets of the state; that the tax upon the use, sale, and distribution of motor vehicle fuel is the means whereby the fund is created; and that the appropriation to the department of highways and public works of the state, and to the various political subdivisions of the state, is the distribution of that fund to accomplish the single purpose of the enactment, to wit, the maintenance and repair of the highways and streets of the state, counties, and municipalities. The contention that the act is a tax on the state and its political subdivisions, in that the motor vehicle fuel used by the state or political subdivisions in state-owned and subdivision-owned machines is not exempt from the payment of such taxation, is answered by the cases of State ex rel. v. Cappeller, 39 Ohio St. 207, and State ex rel. v. Board of Public Works, 36 Ohio St. 409, wherein this court held: pose * laws * * and to adopt or serve the power to adopt or reject any law, section of any law or any item in any law appropriating money passed by the General Assembly, except as hereinafter provided." Section 1d, which is an exception thereto, reads: "Laws providing for tax levies, appropriations for the current expenses of the state government and state institutions. ** * ** The laws mentioned in this section shall not be subject to the referendum." That this is a law "providing for tax levies" must be and was conceded in the argument of this case, and this court is in accord upon that proposition. [4] The question whether the appropriation of the fund to be raised for the period of two years is exempt from the referendum, under the provision "appropriations for the current expenses of the state government and state institutions," is answered when it "The state is not bound by the terms of a general statute, unless it be so expressly en-is determined whether the act appropriates acted." None of the contentions, however, thus far answered, was relied upon with any confidence by the relator, and he states in his brief: 148 N.E.-7 the fund or any portion thereof for purposes other than current expenses. If the fund be appropriated for expense other than current expense, the appropriation is subject to the referendum; if not, it is exempt from the referendum. The phrase "current expenses" does not seem to have been defined by this court, nor, indeed, satisfactorily defined by any court. 17 Corpus Juris, 408, defines it thus: "Incidental expenses; ordinary expenses; running expenses; any continuing, regular expenditures in connection with the carrying on of business; continuing regular expenditures. As applied to a railroad, the term will include expense occasioned by repairs and the purchase of materials for the improvement of the road; expenses incurred within a reasonable time." The Supreme Court of the state of California, in Babcock v. Goodrich, 47 Cal. 488, held: "Current expenses of the year,' as used in a statute authorizing a county board of supervisors to levy a tax for the 'current expenses of the year,' should be construed to mean the 'expenses of the current year.' The Supreme Court of Missouri, in State ex rel. Egger v. Payne, Collector of Revenue, 151 Mo. 663, 52 S. W. 412, held: "Current county expenditures do not mean county expenditures for years other than the year for which the taxes are levied." The Supreme Court of Kansas, in State ex rel. Reed v. Com'rs of Marion County, 21 Kan. 419, held that the erection of county buildings is not "current expenses" of a county, but is an extraordinary and exceptional expense. When permanent county buildings are once erected and completed, the benefits to the county are permanent and continuous. the expenditure for other than road maintenance and repair of any of the money appropriated in the act. As pointed out earlier in this opinion, the act is entitled "An act to provide for the adequate maintenance of the public highways and streets of the state, to supplement existing revenues available for road and street maintenance and repair by the levy of an excise tax and to transfer to the state the duty of maintaining the entire main market road and inter-county highway systems," and were it not for the fact that in section 2 of the act, in defining the purposes for which the revenue is raised, the Legislature included, as part of its maintenance and repair, "widening existing surfaces on such highways where such widening is rendered necessary by the volume of motor vehicle traffic thereon," there could be no question that it was the intention of the Legislature to appropriate this fund solely for the purpose of maintenance and repair-current expenses of the government. The appropriation of $50,000 to the gasoline tax rotary fund, to be used in refunding taxes paid upon the sale of gasoline not used by the purchaser as motor vehicle fuel in part upon the highways and streets of the state, is clearly an appropriation for current expenses. In appropriating 30 per cent. of the gasoline tax excise fund to the municipalities of the state, the Legislature, in the same paragraph, limited its use by providing that it "shall be used by such municipal corporations for the sole purpose of maintaining and repairing the public streets and roads within such corporation," and in the next sentence provided: Other decisions of other courts, like the decisions above quoted, are definitions of the phrase as used in particular statutes, and are not helpful in the determination of the definition of the phrase as used in our Con-ket road, one-sixth of the amount so paid to stitution. If the term "current expenses" as used in our Constitution, were to be interpreted as the same phrase was interpreted by the California court, it is difficult to conceive of a class of appropriations that would not come within the exception. We are of opinion that there was some purpose in its use in our Constitution. line of an intercounty highway or main mar"Wherever a municipal corporation is on the any municipal corporation shall be used by such municipal corporation for the sole purpose of maintaining and repairing such streets and roads within such municipal corporation." In appropriating 25 per cent. of such gasoline tax excise fund to the counties of the state, the Legislature, in the same paragraph, limited its use by the provision that it "shall [5] Our conception of the phrase, as used be used for the sole purpose of maintaining in our Constitution, is that "current ex- and repairing the county system of public penses," in addition to including the expens- roads and highways within such counties," es incident to officering and maintaining the and in appropriating 45 per cent. of such state government, includes the preserving in gasoline tax excise fund to the department repair and maintaining the property of the of highways and public works of the state, state government, and, as applied to roads, the Legislature, in the same paragraph, limincludes the maintaining and repairing there-ited its use by the provision "for the purpose of, as distinguished from new construction. of maintaining, repairing, and keeping in We believe this is the commonly accepted passable condition for travel the roads and definition of the phrase, and we hold that it highways of the state now or hereafter rewas in this sense that the makers of the quired by law to be maintained by the deConstitution used it in section 1d of article partment of highways and public works of 2 of the Constitution of Ohio. this state," and by the provision that in That brings us then to the determination the fiscal year 1925-1926 not less than $1,of the question whether the act authorizes 000,000; and in the fiscal year 1926 (148 N.E.) 1927 not less than $1,500,000, shall be ex-[ pended for the purposes of section 13 of the act. Section 13 provides: [6] The Legislature having entitled the act one to provide funds for maintenance and repair, and having specifically provided for what purpose each separate portion of the appropriation is to be expended, and having "As soon as this act shall take effect and in each instance provided that that expendifunds become available, and as soon as it is ture should be either "for maintaining and practicable to organize proper working forces, the director of highways and public works shall repairing" or "for maintaining, repairing, take over for maintenance purposes as here- and keeping in a passable condition," the geninafter defined, such mileage of the present sys-eral provision contained in section 14, which tem of main market roads and inter-county incorporates the provisions of section 2 therehighways outside of incorporated municipalities in by reference, is not effective to broaden as have not been constructed by the state or or extend the purpose specifically mentioned taken over by the state for maintenance, pro- in the appropriation of the various portions vided that all such portions of the inter-county of the fund, even though section 2 required highway system not at present under state the construction that it authorizes an unmaintenance, be first improved by the county to an extent which in the opinion of the direc-limited widening of existing highway surtor of highways and public works will permit faces, and while the paragraph "for widenof economical maintenance for the purpose of ing existing surfaces on such highways where making them passable to traffic. such widening is rendered necessary by the "From the time such roads and highways are volume of motor vehicle traffic thereon," taken over, the director of highways and pub-standing alone, is capable of such construclic works shall maintain said roads and high- tion, where the necessity for such widening ways, and the respective counties and town is made to appear, yet taken in connecships of the state in which such roads and tion with the title of the act, in connechighways are located shall thenceforth be relieved of the duty of the maintenance thereof, tion with the specific definition of the but for the purpose of this section, maintenance purpose of each appropriation found in shall not be construed to include the construc- each separate paragraph making the aption of any new bridges or culverts or the re- priation, the majority of this court are of placement of any bridges or culverts destroyed opinion that such a construction would vioby the elements or by natural wear and tear, late the rule that specific provisions are connor any construction work changing the type trolling over general provisions, and violate of construction existing on said roads at the the rule that provisions of a definite and time the same are taken over in accordance certain meaning are controlling over proviwith the provisions of this section." Then follows a provision that this act shall not be construed to prevent the authorities of the county or township from cooperating with the state in the construction, maintenance, or repair of a main market road under other provisions of the statute. Section 14 limits all appropriations to the period expiring June 30, 1927, and follow ing the limitation occurs the paragraph which has given the minority of this court much concern: "The sums so appropriated shall be used by such municipal corporations and counties and by the department of highways and public works for the purposes set out in sections 2 and 12 of this act and for no other purpose whatsoever." As has been seen, section 12 limits every portion of such appropriation, except the $50,000 rotary fund, about which no question can be raised, to the expenditure "for maintaining and repairing" and "maintaining, repairing, and keeping in passable condition for travel." sions of an indefinite and uncertain meaning. We therefore are of opinion that the de partment of highways and public works, the counties, and the municipalities of the state, are limited in the expenditure of the respective appropriations made to them in this act to maintenance and repair, and that the power of such department, or subdivisions, to use this particular fund for the purpose of Widening the surfaces of the highways, must The demurrer to the petition is sustained. JONES, MATTHIAS, DAY, ALLEN, and KINKADE, JJ., concur. |