for the first and $10,000 for the third class; and for the second class it has adopted the rate or percentage method, the rate being 3 mills on each dollar of paid-up capital and surplus. Unless there is such an entire absence of any reasonable basis for such a classification that it must be held to be purely arbitrary, and therefore discriminatory, this court cannot interfere with the exercise, by the Michigan Legislature, of its judgment and discretion in thus grading the amount of such tax according to the amount of paid up capital and surplus. With the question whether the judgment of the Legislature upon this subject was correct or wise this court is, of course, not concerned. "It cannot, in my opinion, be held that the method of classification used in measuring the amount of the tax to be levied under this statute is wholly arbitrary and without any reasonable basis. The mere fact that the amount of an excise tax is graduated according to the amount or size of property or business adopted as the standard of measurement for the purpose of computation does not render such a tax so lacking in uniformity or equality that its enforcement operates as a denial of due process of law or of the equal protection of the laws." bb. Systematic Undervaluation of Other Property (p. 1059) Discrimination in taxation, effected by systematic inequality of assessment, may violate the provisions of this Amendment. Keokuk, etc., Bridge Co. r. Sahn, (1922) 258 U. S. 122, 42 S. Ct. 207, 66 U. S. (L. ed.) -. (6) Method of Assessment and Collection (p. 1062) Requiring road tax to be worked out by persons between 21 and 25 while permitting payment in lieu of work by those over 25 is not a grant of special privileges and immunities. Harper v. Brooksher, (Ark. 1922) 240 S. W. 729. Mode of taxing foreign corporation. This section is not violated by the following method of taxing a foreign corporation: "The board first determined the value of the total assets of the corporation, that is, the capital stock and securities, from which it deducted the value of the tangible property of the corporation. The value of the corporate excess in California was then determined by taking that percentage of this difference (which was the total corporate excess) represented by the ratio between the intrastate business in California and the total business of the corporation." People v. Ford Motor Co., (1922) (Cal.) 204 Pac. 217. (d) Distinct Mode of Valuing Railroad Property (p. 1063) Discrimination in manner of assessment.Where the laws of a state require that railway property, farm lands, and all other (11) Railroad Companies (a) In General (p. 1071) Unequal assessment for improvement.Where an expensive improvement in a drainage district, comprising 12,000 acres of land, increases the value of the land by $250,000, the assessment of one-half of the cost of such improvement against a railroad, owning only 3.61 miles of track along the border of the district, constructed for the most part on high fills and a trestle, and which will be benefited only by a problematical increase of traffic through the greater production of the benefited acreage, is unconstitutional as depriving the railroad of the equal protection of the laws. Thomas v. Kansas City Southern R. Co., (C. C. A. 8th Cir. 1921) 277 Fed. 708. (b) Singling Out Particular Railroad (p. 1071) Taxation of street railway on different basis from steam railroad. That the entire operating property of a street railway company is taxed as personalty while the realty of a steam railroad company is taxed as such, does not deny the equal protection of the laws. Puget Sound Power, etc., Co. v. Seattle, (1921) 117 Wash. 351, 201 Pac. 449, 207 Pac. 689. (16) Of Franchises (a) In General (p. 1074) Maximum and minimum tax provisions in a law providing for an annual corporation franchise tax do not deny equal protection of the law though they cause in some instances inequality of taxation. Union Steam Pump Sales Co. v. Deland, (1921) 216 Mich. 261, 185 N. W. 353. (40) Occupation Taxes (b) Discriminating against Foreign Corporation (p. 1082) To same effect as original annotation, see Air-Way Electric Appliance Corp. r. Archer, (S. D. Ohio 1922) 279 Fed. 878. While a state may impose different burdens on a foreign corporation coming into the state from those imposed on domestic corporations, it cannot do so where the corporation was doing business in the territory under authority of a statute of the United States before the state was ever admitted into the Union and continued to conduct its business therein for three years after that time before any attempt was made to discriminate against it. Leecraft v. Texas Co., (C. C. A. 8th Cir. 1922) 281 Fed. 918. Vol. XI, p. 1110, amend. 16. Preferential right given stockholder to subscribe to new stock as taxable under this Amendment. The preferential right of existing stockholders in a corporation to subscribe at a specified price for an equivalent number of shares of a new issue of capital stock authorized by state statutes and certain resolutions of the stockholders, in and of itself constituted no gain, profit, or income taxable under this amendment. Miles v. Safe Deposit & Trust Co., (1922)) 259 U. S. 247, 42 S. Ct. 483, 66 U. S. (L. ed.)) · affirming (D. C. Md. 1921) 273 Fed. 822. 1919 Supp., p. 839, amend. 18. I. Territory affected by amendment. II. Effect of amendment. This amendment being the paramount law on the subjects covered by it, all federal or state laws, organic or statutory, that are in conflict therewith, are, by the vital dominant force of the amendment, restrained in their operation, or rendered inoperative to the extent of the repugnancy. Hall v. Moran, (1921) 81 Fla. 706, 89 So. 104; Burrows v. Moran, (1921) 81 Fla. 662, 89 So. 11; Johnson v. State, (1921) 81 Fla. 783, 89 So. 114; Wood v. Whitaker, (1921) 81 Fla. 653, 89 So. 118. Definition of intoxicating liquors. In the absence of an organic definition Congress has implied power to define the subject of a federal organic prohibition or regulation; and the definition of intoxicating liquors enacted by Congress is dominant to make the prohibitions of the Eighteenth Amendment uniformly effective wherever they are applicable. Johnson v. State, (1921) 81 Fla. 783, 89 So. 114; Wood v. Whitaker, (1921) 81 Fla. 653, 89 So. 118. Withdrawal of liquor from bond prohibited. See (1920) 32 Op. Atty.-Gen. 92. A bequest in aid of temperance is not invalidated by this amendment. "The adop tion of the amendment has not fully accomplished the purpose of the testator, which was to better the condition of people who suffer from the injurious consequences of intemperance caused by the use of intoxicating liquors." Bowditch v. Atty.Gen., (Mass. 1922) 134 N. E. 796. 2. Liquor Acquired Before Amendment This amendment prohibits the production of and the traffic in intoxicating liquors for beverage purposes, but it does not destroy all property rights in such liquors for beverage purposes, where such liquors were lawfully acquired before the amendment became Hall effective and are only lawfully used. v. Moran, (1921) 81 Fla. 706, 89 So. 104. 3. Existing State Statutes or Rule stated. Existing state laws, whenever enacted, that were appropriate to enforce the specific prohibitions of this amendment to the Federal Constitution, were not annulled by the organic amendment superseded by the Volstead Enforcement Act of Congress; and such state laws may be utilized to enforce the amendment, if otherwise valid and effective. Hall v. Moran. (1921) 81 Fla. 706, 89 So. 104, wherein it was further held that the provisions of chapter 7736, Acts of 1918, as amended by chapter 7890, Acts of 1919, in so far as they penalize the manufacture, sale, or transportation of intoxicating liquors, are appropriate and operative to enforce the prohibitions that are commanded by this amendment, even though other provisions of the chapter may be inoperative because in conflict with paramount law. For further authorities supporting the above proposition see Palmer v. State, (Ind. 1921), 133 N. E. 388; Hess v. State, (Ind. 1922)), 133 N. W. 880; Hardaway v. State, (1922)) 90 Tex. Crim. 485, 236 S. W. 467; State v. Stephens, (1921) 116 Wash. 558, 200 Pac. 310. ) "Act 66 of 1902, after the passage of Act 176 of 1908, was wholly inoperative, until the parish or other subdivision had prohibited by vote the retail of intoxicating liquors within its limits. As each parish entered the dry list this act applied automatically. The provisions of Act 66 of 1902 were not being enlarged by this process, but the territory subject to the act was being thereby extended. This is precisely what occurred as to the operation of Act 8 of 1915, Ex. Sess., when the 18th Amendment was adopted. The whole state, every parish included, swung into the dry column. This did not change a single provision in said act, but merely made it operative in a wider field, just as it would have been had each of the wet parishes in the state voted dry prior to the adoption of the 18th Amendment." State v. Boudreaux, (1922), 150 La. 435, 90 So. 751. Rule stated. The express command of this amendment that "the Congress and the several states shall have concurrent power to enforce this article by appropriate legislation" confers upon the Congress and a state concurrent power each by its own appropriate legislation, and within its jurisdiction, to severally enforce all of the prohibitions commanded by the amendment. Hall t. Moran, (1921) 81 Fla. 706, 89 So. 104; Burrows v. Moran, (1921) 81 Fla. 662, 89 So. 111; Haile v. Gardner, (1922) 82 Fla. 355, 91 So. 376; Jones v. State, (Ala. 1921) 90 So. 135; Ewing v. State, (Ala. 1921) 90 So. 136; Rickets v. State, (Ala. 1921) 90 So. 137; Powell v. State, (Ala. 1921) 90 So. 138; Barnes v. State, (Ala. 1922) 92 So. 15; Baskin v. State, (Miss. 1922) 92 So. 556; State v. Venezia, (1922) 151 La. 349, 91 So. 761; State v. Coco, (1922) 152 La., 92 So. 883. In so far as state laws are appropriate to enforce the prohibitions contained in this amendment, they may be valid, though they differ from federal enforcement laws as to procedure or penalties, for in enforcing the organic prohibitions the state and federal powers are concurrent. Johnson v. State, (1921) 81 Fla. 783, 89 So. 114; Wood v. Whitaker, (1921) 81 Fla. 653, 89 So. 118. "Before the adoption of the Eighteenth Amendment, the states alone could regulate the intrastate traffic in intoxicating liquors, and Congress alone could regulate interstate traffic. The effect of the amendment was to give Congress jurisdiction concurrent with the states to regulate intrastate traffic. After an exhaustive examination and able discussion of many of the leading cases dealing with the definition of the words current power,' Chief Justice Rugg, of the Supreme Judicial Court of Massachusetts, in Commonwealth . Nickerson, 236 Mass. 281, at page 295, 128 N. E. 273, at page 279 (10 A. L. R. 1568), tersely states their meaning when he says that 'concurrent power,' as used in this connection, means: 666 6 con "A power continuously existing for efficacious ends to be exerted in support of the main object of the amendment and making contribution to the same general aim according to the needs of the state, even though Congress also has exerted the power reposed in it by the amendment by enacting enforcing legislation operative throughout the extent of its territory.' State v. Ceriani, 96 Conn. 130, 113 Atl. 316; Ex parte Crookshank (D. C.) 269 Fed. 980; United States r. Holt et al. (D. C.) 270 Fed. 639. Cer "In other words, the state retains the power to regulate intrastate traffic in intoxicating liquors which it always had, subject to the limitation that such regulation must not conflict with the Eighteenth Amendment or federal legislation passed pursuant thereto. The assumption that the state statute in question was not passed in the exercise of this power, but in the exercise of a power delegated to it by the federal government, is entirely without foundation. tainly the fact that it is entitled An act concerning the enforcement of the Eighteenth Amendment to the Constitution of the United States' offers no basis for such a contention. Ex parte Volpi (Cal. App.) 199 Pac. 1090. It is true that the federal government may and in certain instances has adopted agencies of the state for the purpose of administering its own laws, as, for instance, when state courts administer the federal naturalization laws, but no instance has been cited where the state itself has been made an instrumentality for enforcing federal laws. It has, on the contrary, been held in a number of cases that the states do not, by adopting the Eighteenth Amendment, deprive themselves of the power to legislate upon intrastate traffic in intoxicating liquors, and that in so legislating they do not enforce the acts of Congress, but the amendment itself." U. S. v. McCann, (D. C. Conn. 1922) 281 Fed. 880. "It cannot be thought that state legislation on this subject hostile to the amendment or to congressional legislation would be sustainable. Illustrative of conflict are state laws licensing saloons and authorizing the sale of liquor, rendered nugatory when the amendment became effective. And similarly, a state statute defining intoxicating liquor as excluding something included in the definition of Congress would be invalid. The power of the states as exercised in those instances would not be an aid to the enforcement of prohibition, but would be an impediment and obviously violate the avowed purpose of the amendment. But state legislation directed to the enforcement of prohibition within the jurisdiction of the state by means different from those adopted by Congress, if such means do not conflict with the efficacious enforcement of congressional legislation, would seem to be within the purview and meaning of the amendment. And, in our opinion, it is indifferent whether the state laws were passed before or after the amendment and the Volstead Act went into effect." Youman . Com., (1922) 193 Ky. 536, 237 S. W. 6. In enacting appropriate laws to enforce this amendment, the Congress and the state must conform to any applicable provision of the Federal Constitution that is not restrained in its operation by this amendment. Hall v. Moran, (1921) 81 Fla. 706, 89 So. 104; Burrows v. Moran, (1921) 81 Fla. 662, 89 So. 111. The fact that a statute or ordinance is more exacting than the Volstead Act or imposes a penalty less or more severe does not invalidate it. Ex p. Volpi, (Cal. 1921) 199 Pac. 1090. 66 Adoption by state of federal legislation.It is not competent for a state, in lieu of an independent prohibition law, to adopt by reference 'laws made and to be made by the Congress of the United States and regulations made and to be made thereunder for the purpose of establishing offenses to be punished by fine or imprisonment or both, by prosecutions to be instituted in the courts of this commonwealth," so as to "make the substantive law of the commonwealth in these particulars change automatically so as to conform to new enactments from time to time made by Congress and new regulations issued pursuant to their authority by subsidiary executive or administrative officers of the United States." In re Opinion of Justices, (Mass. 1921) 133 N. E. 453. V. MUNICIPAL POWER In general. A municipality has power to pass ordinances looking to the enforcement of the amendment.. Sioux Falls v. Walser, (S. D. 1922) 187 N. Y. 821. And the amendment does not nullify a prohibition ordinance. Ex p. Volpi, (Cal. 1921) 199 Pac. 1090. no Municipal power is not delegated to Congress by an ordinance providing that "it is provided and intended, however, that manufacture, sale, gift, exportation, importation, transportation, or possession of such liquor which is, at the time of its commission, allowed or permitted by the laws then in force, enacted by the Congress of the United States for the enforcement of the 18th Amendment of the Constitution of the United States, shall be deemed or considered any violation of the ordinance; and the definition of intoxicating liquors under the ordinance shall at all times be the same as under such laws of Congress at the time in effect." Ex p. Kinney, (Cal. 1921) 200 Pac. 966. A city ordinance providing for the suppression of a blind tiger, or place for the unlawful sale of intoxicating liquor, as a nuisance, is properly within the police power, and is not affected by this amendment. Charles v. Rose, (1921) 149 La. 647, 89, So. 884. Lake INDEX [References are to pages] AGRICULTURE — (Cont'd) Associations to market agricultural pro- Marketing agencies authorized, 2 Members, mutual benefit as object of as- Members, voting power regulated, 2 Mutual benefit of members as object, 2 Persons authorized to organize associa- Place of trial in proceeding to prevent Preparing or processing products for Prices of agricultural products, preven- Restraint of trade by associations, pro- Sales for future delivery, authority to Secretary of Agriculture, supervisory powers of, 2-3 Stock, amount of dividends limited, 2 Bureau of Agricultural Economics, assump- Contracts for sale of grain for future de- supra Fungicides, addition of water as adultera- Insecticides, addition of water as adultera- Marketing agricultural productз, see Asso- supra Monopolizing trade in agricultural prod- Office of Farm Management and Farm Restraint of trade by enhancing prices of Sale of grain for future delivery, see GRAIN |