Judges: OPINION OF THE COURT BY JUDGE BAIRD
Attorneys: B.M. VINCENT, Attorney General, and M.B. HOLIFIELD, Assistant Attorney General, for appellant.
WOODWARD, DAWSON HOBSON for appellee.
Filed: Mar. 26, 1937
Latest Update: Mar. 02, 2020
Summary: Reversing. This is an appeal from a judgment of the Franklin circuit court, wherein that part of section 4281d-2, Kentucky Statutes, designated by the letter (f) of section 2 of the act of the General Assembly passed at its Third Extra Session (Acts 1936, 3d Ex. Sess., c. 3), beginning on the 30th day of March, 1936, declaring said section, imposing a tax on cosmetics and kindred articles set out and enumerated therein, to be unconstitutional, because the act imposes a tax on any Kentucky retail
Summary: Reversing. This is an appeal from a judgment of the Franklin circuit court, wherein that part of section 4281d-2, Kentucky Statutes, designated by the letter (f) of section 2 of the act of the General Assembly passed at its Third Extra Session (Acts 1936, 3d Ex. Sess., c. 3), beginning on the 30th day of March, 1936, declaring said section, imposing a tax on cosmetics and kindred articles set out and enumerated therein, to be unconstitutional, because the act imposes a tax on any Kentucky retaile..
More
If the tax herein involved is a property tax, it is plainly unconstitutional. Compare Dawson v. Kentucky Distilleries and Warehouse Company, 255 U.S. 288, 41 S. Ct. 272, 65 L. Ed. 638. I do not understand the opinion of the majority even to attempt to justify the statute on this theory. On the contrary, the tax is recognized as an excise, and it is conceded that if its incidence is a part of the interstate transportation, then the tax is invalid on this theory too.
It is sought to sustain the excise by construing the taxable act away from interstate commerce and fixing it somewhere within the interval between receipt by the merchant and sale to the consumer. The difficulty that I have with this reasoning is: (1) That the tax is, in terms, levied on the receipt of the cosmetics by a retailer; and (2) that there is nothing to excise after the goods are received and before they are sold — a tax that falls within this period can be nothing other than a tax on the property itself. It is not contended that appellees are themselves going to use the cosmetics. Cases sustaining an excise on the use of property after the interstate journey is at an end therefore have no application. I have always thought that a tax based on ownership alone was a property tax. The opinion of the majority has not convinced me of my error in this particular. I am authorized to state that Judge Clay concurs in the views here expressed.
