25 Wn.2d 750, THE STATE OF WASHINGTON, Appellant, v. FRED H. LAWTON, Defendant, J. PINCUS, Respondent
[No. 29938. Department Two. Supreme Court August 24, 1946.]
THE STATE OF WASHINGTON, Appellant, v. FRED H. LAWTON,
Defendant, J. PINCUS, Respondent.«1»

[1] In the case of Bates v. McLeod, 11 Wn. (2d) 648, 120 P. (2d) 472, we held that contributions exacted under the unemployment compensation act were excise taxes upon the privilege of employing others, citing authority.

[2] The following statement will be found in 51 Am. Jur. 366-7, § 316:

"Although it is sometimes broadly stated either that tax laws are to be strictly construed or, on the other hand, that such enactments are to be liberally construed, this apparent conflict of opinion can be reconciled if it is borne in mind that the correct rule appears to be that where the intent or meaning of tax statutes, or statutes levying taxes, is doubtful, they are, unless a contrary legislative intention appears, to be construed most strongly against the government and in favor of the taxpayer or citizen. Any doubts as to their meaning are to be resolved against the taxing authority and in favor of the taxpayer, or, as it is sometimes put, the person upon whom it is sought to impose the burden.

Again, at page 882 of the same text, we find this statement:

"Tax liens are not to be extended by implication or enlarged by judicial construction. A tax is a lien on property only so far as expressly made a lien by the statute. It exists and attaches only according to such terms and conditions as are prescribed by the statute creating it."

We stated in Home Owners' Loan Corp. v. Mitchell, 195 Wash. 302, 81 P. (2d) 268:

"Assuming that the legislature may establish a state tax as a prior lien, such a legislative intent must clearly appear."

Aug. 1946] STATE v. LAWTON. 757

[3] Appellant states in its brief that, in the exercise of its police power, the legislature is vested with a wide discretion, not only to determine what objects are subject to taxation, but the persons against whom the exaction is imposed; that its determination, when expressed in statutory enactment, cannot be questioned successfully, unless it is so manifestly arbitrary, unreasonable, inequitable, and unjust that it will cause an imposition of burdens upon one class to the exclusion of another, without reasonable distinction.

We agree with the above as a statement of the general rule.

Appellant then argues that the provision of § 93, chapter 35, Laws of 1945, with which we are here particularly concerned, is very essential to the purposes of the act as a whole, and that without such a provision collection of contributions to the fund would be extremely difficult in many cases.

May we say here that, if the facts in this case are typical of the cases with which the unemployment compensation division has to deal, then, in our opinion, the contention of the state that this provision is necessary is not warranted; for the statute gives a prior lien against the interest of the employer, and had the state in this case used due diligence, it would seem that there was ample property of the liable employer to which its lien attached and from which its claim could have been satisfied.

[4[ Appellant also argues that it is the general rule that every presumption is in favor of the constitutionality of a law or ordinance. We are in accord with that statement.

We also agree that the constitutionality of the unemployment compensation act has been upheld by this court in several cases, including Shelton Hotel Co. v. Bates, 4 Wn. (2d) 498, 104 P. (2d) 478, but the section now being considered has never been passed on by this court, nor, so far as we can determine, has the constitutionality of the section been construed by any other court.

Appellant then argues that § 93, supra, or at least so much thereof as we are here concerned with, is patterned after subd. (c), of Rem. Rev. Stat., § 7682 [P.P.C. § 717-9], which

758 STATE v. LAWTON. [25 Wn. (2d)

was enacted in 1929, and will be found as subd. (c), § 4, chapter 132, p. 342, Laws of 1929, reading as follows:

"Separate and apart from and in addition to the foregoing provisions the claims of the state for payments and penalties due under this act [industrial insurance act] shall be a lien prior to all ether liens, except taxes, not only against the interests of any employer, but against the interests of all others, in the real estate, plant, works, equipment and buildings improved, operated or constructed by any employer, and also upon any products or articles manufactured by such employer."

It is apparent that subd. (c) of Rem. Rev. Stat., § 7682, just quoted, is almost identical with that part of § 93, chapter 35, Laws of 1945, with which we are here concerned. Appellant in its brief, after setting out the provisions of subd. (c), states:

"In the case of Barlow & Sons v. H. & B. Lumber Co., 153 Wash. 565, 280 Pac. 88, this court had occasion to pass upon this portion of the statute and in so doing, after setting forth the above quoted subdivision of the statute, said on page 578:

"`The obvious intention of the last quoted enactment was for the purpose of making definite and certain the vague and uncertain language contained in the amendment of 1923.

"`Apparently, the legislature has been anxious to avoid the possibility of depleting the industrial insurance funds and.of continuing in effect the decision in the Whitney case, [Whitney v. Page & Bolster Shingle Co., 116 Wash. 371, 199 Pac. 728], by the act of 1923.'"

While it is true that, in the Barlow & Sons case, supra, this court did refer to subd. (c), supra, and did make the quoted statements, it is not true that, in that case, this court actually passed upon the quoted statute. The orders from which an appeal was taken in the cited case were made and entered by the trial court on November 22 and December 7, 1928, respectively. The trial court, as is apparent, did not have before it subd. (c), as that subdivision was not enacted until 1929. The court did have before it § 3, chapter 136, p. 398, Laws of 1923, which read:

Aug. 1946] STATE v. LAWTON. 759

"The claim of the state for payments and penalties due herein shall be a lien prior to all other liens, except taxes, upon the real estate, plant, works, equipment and buildings improved, operated, or constructed by any employer, and also upon any logs, spars, piles, ties, or other timber produced or articles manufactured by such employer which shall be owned by or in the possession of any person liable for such premiums. . ."

The Barlow & Sons case presented no constitutional question, but involved a question of priority of lien rights between the state for industrial insurance premiums and labor claimants. The employer was insolvent and all his assets were in the hands of a receiver, who contended that the state had no lien against the assets of the employer, as it had filed no claim of lien as provided by statute, but had only filed with the receiver its claim for the amount said to be due. We held that the state was entitled to a preference on its claim filed with the receiver against all the assets of the insolvent, without having filed a claim of lien against specific property. One of the contentions made by the receiver in the cited case was that the state had no lien upon all the funds in his hands, because some of it came from the sale of property covered by conditional sales contracts. This court answered the contention of the receiver as follows:

"The receiver took just such title as the insolvent had. [Citing authority.] Whatever interest he sold, was the interest of the insolvent. That interest was a conditional interest covered by the conditional sales contracts. When sold, the funds became general assets of the insolvent estate."

The reference to subd. (c), supra, was apparently made to justify the following statements found on p. 577 of the opinion:

"We agree with the contention of the state that the 1923 statute provides for two classes of liens: those upon property operated and the specified products of the property operated; and, those upon the entire assets in the hands of administrators, trustees, or receivers. In the former class the state may file its notice and proceed against the property, if it so desires, regardless of ownership." (Italics ours.)

760 STATE v. LAWTON. [23 Wn. (2d)

The case of Roeblings Sons Co. v. Frederickson L. & T. Co., 153 Wash. 580, 280 Pac. 93, is also cited by appellant. This case did not involve a claim of lien on the property of a third person, but the question presented was whether or not the lien of the state for industrial insurance premiums due from Frederickson Logging & Timber Co. was prior to a chattel mortgage given by the logging company to Western Cooperage Co. to secure a loan. The opinion states:

"Thereafter, in the latter part of the year 1927, the logging company becoming involved, a receiver was appointed. The only assets which the receiver took over were the tools, equipment, etc., covered by the chattel mortgage. The assets were thereafter sold by the receiver, and this dispute arises over the disposition of the money received therefor."

The case was decided August 27, 1929. The judgment of the trial court in the case had been made and entered on December 5, 1928, which was prior to the enactment of subd. (c), hereinbefore referred to. The opinion states:

"The sole question in the case involves the construction of the provisions of § 3, chapter 136, Laws of 1923, p. 373, the same being Rem. 1927 Sup., § 7682, which reads as follows: . . ."

The section is then quoted, and is the same section as was before the court in the Barlow & Sons case. Again, in the Roeblings Sons case we find a statement not necessary to a decision of the case and certainly not having any reference to the facts, for it does not appear but what all the property involved belonged to the liable employer.

"It does not seem to have been the intention of the legislature to change the law relating to insolvency, but rather to cover a condition not before covered, namely, the giving to the state a right to claim a lien upon the property used in extrahazardous work regardless of ownership."

Appellant also cites the case of Tripp v. Niagara Logging Co., 178 Wash. 551, 35 P. (2d) 95. This action involved the question of priority of a lien of the state for industrial insurance premiums due from Niagara Logging Co. over chattel mortgage lien, loggers liens, towboat liens, and an attachment lien. The property affected belonged to the

Aug. 1946] STATE v. LAWTON. 761

Niagara Logging Co. and consisted of two rafts of logs and the logging and camp equipment described in the two chattel mortgages. The opinion states:

"It is conceded that, under subdivision (c), Rem. Rev. Stat., § 7682, the lien of the state, for payments and penalties due under the workmen's compensation act is superior to all other liens except taxes."

No question was raised or discussed as to the constitutionality of the section, and, the property involved being owned by the liable employer, no property of a third party was involved.

In none of the cases cited is the constitutionality of subd. (c), of Rem Rev. Stat., § 7682, raised, and in none of the cases cited did this court hold that property wholly or in part owned by a third person was subject to a lien for industrial insurance premiums. However, in both the Barlow & Sons case and the Roeblings Sons case this court did make a statement to the effect that, under Rem. 1927 Sup., § 7682, the state was given a lien upon property operated and the specified products of property operated, regardless of ownership. In neither case was the above statement necessary to the decision, as no property of a third party was involved.

We have another case decided by this court which involved a construction of the same statute as was construed in the two cases last above referred to. However, in the case to which we shall now refer, it was sought to impress the lien of the state for unpaid industrial insurance premiums on the property of one other than the liable employer, and this court held the statute did not give to the state such a right. We refer to the case of Finos v. Netherlands American Mtg. Bank, 147 Wash. 86, 265 Pac. 167. Several questions were raised in the cited case, but we are here interested only in the claim of the state that it was entitled to enforce its lien for unpaid industrial insurance premiums against the interest of Netherlands American Mortgage Bank in certain mining property.

Subsequent to the taking effect of chapter 136, p. 373, Laws of 1923, the bank sold the premises in question to

762 STATE v. LAWTON. [25 Wn. (2d)

appellant Cashman and wife upon a conditional sales con tract, and on a later date Cashman and wife leased the properties to Wiero et al., for the purpose of coal mining operations. The lessees thereafter formed a corporation, which employed workmen in the coal mining operations, and failed to pay the industrial insurance premiums thereon. The corporation having become insolvent, no premiums could be collected from it. The statute under which the state asserted its claim was § 3, chapter 136, Laws of 1923. The question presented was whether or not, under the statute, the claim of the state became a prior lien on the fee retained by the bank under the conditional sales contract.

While this court stated that to give effect to the contention of the state (appellant) would be to make the operation of the statute retroactive as to the bank, it then proceeded to consider the effect of a statute purporting to make the property of a third person liable for the premiums due from the employer. We quote from the opinion:

"The state further contends that it has the right under its police power to impose such liens upon any and all kinds of property in any and all kinds of contracts, including those in force at the time of the legislation providing therefor.

"We concede that the state has the right to impose liens and make them prior as to other liens against the same property under its police power. [Citing cases.] We do not think that, even under its conceded police power, the state has the right to attach liability to the property of a third person, unconnected with the operations out of which the state exacts premiums of payments for the protection of still other persons. Such, it seems to us, would be an unreasonable exercise of the state's police power." (Italics ours.)

The opinion then quotes from 37 C. J. 186:

"`A statute or ordinance licensing or taxing an occupation or privilege must be reasonable in its terms and conditions; if it impose a license or tax in such a manner or upon such terms as to be unreasonable, oppressive, or in restraint of trade, it is void.'"

The opinion continues:

"While it is true that we are not here considering a statute or ordinance licensing or taxing an occupation or privilege,

Aug. 1946] STATE v. LAWTON. 763

or a taxing law, we are considering a law imposing a prior lien in the exaction of payments for operations under laws, under which operations and under which laws the respondent bank derives no benefit. The exercise of the police power of the state in respect thereto should, therefore, be reasonable or it would be void. While we can find no authority exactly fitting, we think reason and general principles contrary to the contention of the state." (Italics ours.)

At another place in the opinion, the court states:

"Unlike appellants Cashman, it [the bank] received no benefits, nor was it entitled to receive any benefits derived from the mining operations. It simply had an outstanding executory contract with the Cashmans, with title reserved as security."

It should be kept in mind that the statute considered by the court in the last-cited case provided in part:

It is evident that, in the cited case, the mine was being operated by the liable employer, and still we held that the lien did not attach to the interest of the bank, the owner of the fee.

In so far as our search has revealed, Arizona is the only other state which has a provision in its unemployment compensation act similar to that part of § 93, chapter 35, supra, with which we are here concerned. We have been unable to find any case where this provision in an unemployment compensation act has been considered by the courts. So far as we have been able to discover, all of the states which have unemployment compensation acts, other than Washington and Arizona, confine the lien given for unemployment compensation contributions to the real and personal property of the liable employer. Even Oregon, which has a section in its industrial insurance act almost identical with § 93, supra, of our unemployment compensation act, does not give a lien for unemployment compensation

764 STATE v. LAWTON. [25 Wn. (2d)

contributions against the interest of all others in the real estate, plant, etc.

[5] Having in mind what this court has said relative to the industrial insurance lien statute, and especially what was stated in the Finos case, supra, we have given considerable thought to what the legislature intended by the statement "against the interest of all others." It did not mean interest such as a lien claimant might have, for in the first part of the section the state is given a lien prior to all others, except taxes, against the interest of the liable employer. It must have been intended to refer to some interest to which a lien could attach. We can think of no interest which could have been intended other than the interest of an owner or part owner; and so construing the particular part of the section now under consideration, we are of the opinion it is unconstitutional, for the reason that it arbitrarily imposes a lien on property of one not liable for a tax, from which to satisfy the tax of a liable employer. It in effect requires a third party to pay the tax of a liable employer, without any provision for reimbursement. It seems to us that clearly the effect of this statute is to deprive the third party owner or part owner of his property without a hearing or due process of law, and is in contravention of the fourteenth amendment to the Federal constitution, and § 3, Art. I, of our state constitution.

We are entirely in accord with the principles announced in the case of Knoxville Traction Co. v. McMillan, 111 Tenn. 521, 77 S. W. 665, 65 L. R. A. 296, wherein the supreme court of Tennessee had before it an act making street and commercial railroad companies liable for the privilege tax impressed upon advertising companies conducting the business of advertising in the cars and stations of such companies. We quote part of the act:

"Provided that the street car company or railroad company who lease or sell such advertising privileges shall be liable for the payment of the above privilege."

The court, in holding that the act was unconstitutional, being in contravention of the fourteenth amendment to the Federal constitution, stated:

Aug. 1946] STATE v. LAWTON. 765

"The traction company and the advertising company are distinct and independent corporations, owing each other no duty or obligation, and having no interest in common. The former is engaged solely in operating a street railway, and the latter in the advertising business. The tax is imposed upon the business of advertising in street cars - a privilege exercised by the advertising company, and not by the traction company. It is not a liability of the traction company, but one of the advertising company. The only relation of the two companies is that the former is the creditor of the latter for the rent due it for the use of its cars for advertising purposes. The statute arbitrarily imposes upon the traction company liability for this debt of the advertising company, and requires it to pay it with its own means. This is a deprivation of property without a hearing or due process of law, clearly within the prohibition of the constitutional provisions relied upon. This is too obvious for argument, and the property of one citizen can no more be taken to pay a tax or public debt due from another than the private debt of such other person. . .

"The complainant is not the debtor of the advertising company, and at no time, in due course of business, will have any of its assets in its hands or under its control, which it can apply to the payment of the tax imposed upon it. If required to pay this tax, it must do so out of its own property, without any provision for its reimbursement."

We are in entire accord with the statements contained in the above quotation. To hold that, under the statute in the instant case, the property of respondent can be taken to pay the tax owing by the liable employer, would be to deprive respondent of his property without a hearing or due process of law, and would offend not only against the fourteenth amendment to the Federal constitution, but also against § 3, Art. I, of our state constitution.

We conclude, therefore, that that part of § 93, chapter 35, Laws of 1945, which by its terms purports to create a lien prior to all other liens, except taxes, against the interest of all others in the plant, works, equipment, and buildings, improved, operated, or constructed by such employer, and also upon any products or articles manufactured by such employer, is unconstitutional and void.

766 STATE v. LAWTON. [25 Wn. (2d)

[6] Section 184, of chapter 35, p. 149, Laws of 1945, provides:

"If any provisions of this act, or the application thereof to any person or circumstances, is held invalid, the remainder of the act and the application of such provision to other persons or circumstances shall not be affected thereby."

We stated in Unemployment Compensation Dept. v. Hunt, 17 Wn. (2d) 228, 135 P. (2d) 89:

"An act cannot be declared unconstitutional in its entirety by reason of the fact that some one or more of its provisions is unconstitutional, unless the constitutional and unconstitutional provisions are unseverable and are so intimately connected and interdependent in their meaning and purpose that it could not be believed that the legislature would have passed the one without the other, or unless the part eliminated is so intimately connected with the remainder of the act that the elimination would render the remainder incapable of accomplishing the purposes of the legislature."

We are of the opinion that our conclusion that part of § 93 is unconstitutional and void will not affect the purpose or the application of the other provisions of the act, and we are particularly convinced that such conclusion will not seriously, if at all, hinder the state in the collection of unemployment compensation contributions due, inasmuch as a claim of the unemployment compensation division for any contributions not paid when due will still be a lien prior to all other liens, except taxes, against the interest of any employer in the plant, works, equipment, and buildings, improved, operated, or constructed by such employer, and also against the interest of any employer in any products or articles manufactured by such employer. The protection thus given to the state and the means afforded for satisfying the lien provided by the statute are, it seems to us, ample to secure the ends sought by the act.

The following language in the Hunt case, supra, is we think, applicable to the situation here presented:

"Moreover, we do not believe that, if the legislature had thought that this one provision would be declared

Aug. 1946] STATE v. MASON. 767

unconstitutional, it would have hesitated for an instant to pass the remainder of the act."

For the reasons herein assigned, the judgment of the trial court is affirmed.

BEALS, C. J., BLAKE, ROBINSON, and STEINERT, JJ., concur.

25 Wn.2d 750, THE STATE OF WASHINGTON, Appellant, v. FRED H. LAWTON, Defendant, J. PINCUS, Respondent[No. 29938. Department Two. Supreme Court August 24, 1946.]THE STATE OF WASHINGTON, Appellant, v. FRED H. LAWTON, Defendant, J. PINCUS, Respondent.«1»

25 Wn.2d 750, THE STATE OF WASHINGTON, Appellant, v. FRED H. LAWTON, Defendant, J. PINCUS, Respondent
[No. 29938. Department Two. Supreme Court August 24, 1946.]
THE STATE OF WASHINGTON, Appellant, v. FRED H. LAWTON,
Defendant, J. PINCUS, Respondent.«1»