Bemis Bro. Bag Company v. Wallace , 197 Minn. 216 ( 1936 )

I cannot agree with the majority opinion. The action of the court here is a usurpation of the function of the legislature by the judiciary and is a manifestation of the fast-growing evil of judicial autocracy. The constitutional separation of authority forbids judicial interference with the exercise of legislative duties and functions. Thus we find our court saying:

"* * * under constitutions, similar to that of this state, where all power and authority of government are vested in three distinct, co-ordinate and independent departments — the legislative, the executive and the judicial — the judicial has not the power to control, coerce or restrain the action of the other two within the sphere allotted them by the Constitution wherein to exercise judgment and discretion." State ex rel. Burnquist v. District Court, 141 Minn. 1, 16, 168 N.W. 634,636, 3 A.L.R. 1476.

Nowhere is there anything express or implied indicating that the legislature ever repealed or intended to repeal the corporate excess tax law. The result of the majority decision, therefore, is, not repeal by the legislature but by the court — not legislative repeal, but judicial repeal. In marked contrast to its attitude in the instant case, this court has — as the head of the judicial branch of government in this state — jealously guarded and protected its own powers and functions from encroachment by the other divisions of our state government. In the recent case of State ex rel. Decker v. Montague, 195 Minn. 278, 288, 262 N.W. 684, 689, this court said:

"The necessity of protecting the judiciary from executive encroachment is obvious. Nothing could be more harmful to the orderly administration of justice than to permit or sanction what is here sought."

The "necessity of protecting the judiciary from executive encroachment" should be no more important to us, the judiciary, than is the necessity of protecting the legislature from judicial encroachment. Surely the rights of the people can best be served by protecting each branch of the government from any encroachment by another. As stated in the Sinking Fund Cases,99 U.S. 700, 718, 25 L. ed. 496:

"One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule."

There are no provisions in any of the subsequent statutes expressly repealing § 2021. There is nothing inconsistent with this statute in the later taxing statutes. A tax on corporate excess is a tax imposed on the good will of a corporation as property. Adams Express Co. v. Ohio State Auditor,166 U.S. 185, 17 S. Ct. 604, 41 L. ed. 965. The mortgage registry tax law, the moneys and credits tax law, and the income tax law do not tax good will and in no way conflict with the corporate excess tax. The income tax as applied to corporations is a privilege tax. Rottschaefer, "The Minnesota State Income Tax," 18 Minn. L.Rev. 93, 94-105. The error in the majority opinion comes from a failure to differentiate between a tax on theexercise of the privilege as in the case of the income tax and a tax on the privilege itself as property. The fact that the taxing authorities have failed to comply with the statute in question is neither material nor controlling. Such a fact is pertinent only as an aid to interpretation where a statute is ambiguous. State ex rel. O'Hearn v. Erickson, 152 Minn. 349,188 N.W. 736. There is no ambiguity in § 2021; hence there is no room for interpretation or consideration of administrative construction. It is axiomatic that repeals by implication are not favored, and no statute should be held to repeal another unless the two are so irreconcilable as to make it impossible to give effect to both. Frost v. Wenie, 157 U.S. 46, 15 S. Ct. 532, 39 L. ed. 614. This principle was not applied by the majority of the court in this case.

If the rule of judicial repeal is to stand it will not only serve the purpose of defeating reform but may even accomplish the overthrow of popular rights which the constitution expressly guarantees. The right to nullify or veto an act of the legislature, being purely political, is clearly beyond the constitutional powers of the judiciary.

The orders appealed from should be reversed.