Newton v. McKay

Deemer, J.

process: notice, 1. Constitutional law: mulct taxes: statutes: due The case turns upon the constitutionality of sections 2433 et seq. of the Code, relating to what are now familiarly known as “ mulct taxes.” It is argued that these statutes are unconstitutional, for the reason that the property owner is given no notice of the proceedings against his property, and is afforded no opportunity to be heard with reference *598 thereto, and for the further reason' that the tax is in effect a license, and that the amount thereof cannot be collected in a summary way, but only through regular judicial proceedings. • Further, it is contended that a property owner is in such cases deprived of his property without due process of law. The first and last of these propositions have already been settled adversely to plaintiff’s contentions in Hodge v. Muscatine Co., 121 Iowa, 482 . That decision was affirmed by the Supreme Court of the United States in an opinion filed January 16, 1905, not yet officially reported. 25 Sup. Ct. 237, 49 L. Ed. -. It was there held that the landowner is not entitled to notice before his property is impressed with a lien, and that sections 2441 and 2442 meet all the requirements of due process of law. The mere fact that the owner did not know of the sales of liquor upon his premises was not regarded as controlling.

a. Mulct tax conecüonENSlt‘ II. But it is said that this so-called mulct tax is not in fact a tax, but really a license for the privilege of carrying on the business of selling intoxicating liquors, and that the same cannot be collected by summary proceedings, such as are authorized by the statutes in question. There is language in some of our cases tending to support the contention that this tax is a license, but, when the facts are considered, it will be found that such expressions, while applicable to the questions then before the court, are not controlling here. Turning to the statutes, it will be found that this tax is imposed upon all except permit holders who carry on the business of selling or keeping for sale intoxicating liquors. Payment of the tax does not in itself constitute a bar to proceedings for the unlawful sale of liquors. It is not, therefore, a license. Indeed, section 2447 provides in express terms that the payment of the tax shall not relieve the wrongdoer from any penalty provided by law, except that he do other things provided for in the next section. Moreover, this same section says that the payment of the mulct tax shall not be regarded *599 as a license. It is entirely clear that the Legislature may impose a tax without legalizing the business taxed. McGuire v. Com., 3 Wall. (U. S.) 387 ( 18 L. Ed., 164 ); Com. v. Crane, 158 Mass. 218 ( 33 N. E. 388 ). That this imposition is levied pursuant to the taxing power, and is not a mere license, see In re Smith, 104 Iowa, 199 ; Adler v. Whitebeck, 44 Ohio, 539 ( 9 N. E. 672 ) ; State v. Hipp, 38 Ohio St. 206 ; People v. Lyng, 74 Mich. 579 ( 42 N. W. 139 ). Being a tax upon the business, it may be collected as other taxes. Yeomans v. Riddle, 84 Iowa, 147 ; McMillan v. Anderson, 95 U. S. 37 ( 24 L. Ed. 335 ) ; Spencer v. Merchant, 100 N. Y. 585 ( 3 N. E. 682 ). The law itself provides the tribunal which shall hear all complaints with reference to this tax, and its jurisdiction is ordinarily exclusive. Macklot v. City, 17 Iowa, 379 .

3. remission os notice. The fact that plaintiff had no knowledge of sales of liquor upon her premises until after the expiration of the time within which she might have applied to the board of supervisors for remission of the tax is not conclusive. She had all the notice required to constitute due process of law, and, if she did not in fact have notice of the assessment, it was due to her own fault, in not examining the county records. Should we hold to the rule contended for by plaintiff, many taxes might be defeated by reason of want of knowledge or notice on the part of the party assessed that his property had been listed for taxation. Pláintiff had all the notice that was required in such cases to constitute due process of law, and the trial court was in error in holding the statutes unconstitutional.

The decree is reversed, and the cause is remanded for one in harmony with this opinion. — Reversed.

Sherwin, C. J., dissenting.