No. 4,900 | Mont. | Jan 11, 1922
Lead Opinion
delivered the opinion of the court.
This appeal is from an order of- the district court of Flathead county, refusing a writ of injunction. Appellants sought to
By section 1 of the Act attempt is made to amend section 2692 of the Eevised Codes, 1907, to read as follows:
“Sec. 2692. Every male inhabitant of this state over 21 and under 60 years of age except paupers, insane persons and Indians not taxed, must annually pay a poll tax of two dollars ($2.00). In addition to the foregoing 'poll tax of two dollars ($2.00), every such male inhabitant of this state who is not the head of a family, as hereinafter defined, must annually pay an additional poll tax of three dollars, ($3.00).
“The words ‘head of a family’ shall, for the purpose of this Act, be construed to mean any person having wholly dependent upon him for support, a wife, minor child, father, mother, brother, or sister and any such male person actually living with his wife.”
The amendment is shown by the portions italicized; the other part of the section being verbatim the same language of the section before the passage of the Act. Section 2 of the Act is nothing more than a re-enactment of the provisions of section 2714 of the Eevised Codes, providing that the proceeds of the
Section 2692 of the Revised Codes was first enacted by the second legislative assembly, and appears as section 163, Laws of 1891, page 122. In consequence of an amendment of section 167, relating to compelling payment of poll taxes, made by Act of March 8, 1893, page 65, no reference being made to section 163, the Code commissioner evidently considered the latter section continued in force (see. 3561, Pol. Code) by implication, and it was brought forward as section 3960 of the Political Code in 1895, and thence to the Revised Codes of 1907. It is unnecessary to determine whether it was properly carried forward as a part of the Code provisions, but it is noteworthy that the same subject matter was fully covered by subdivision 5 of section 4230 of the Political Code, adopted in 1895, as respects which the constitutional objections hereinafter stated have no application. As carried forward in the Revised Codes, it is section 2894, dealing with the powers of boards of county commissioners, subdivision 5 of which empowers them “to provide for the care and maintenance of the indigent sick, or the otherwise dependent poor of the. county; erect and maintain hospitals therefor, or otherwise provide for the same; and to levy the necessary tax therefor, per capita, not exceeding two dollars, and a tax on property not exceeding one-fifth of one per cent, or either of such levies when both are not required.”
The constitutionality of the Act is questioned on several grounds, but one of which will be considered as determinative of the case, namely: Did the court err in not holding that the Act contravenes the provisions of section 5 of Article 10 of the state Constitution? That section reads as follows: “The several counties of the state shall provide as may be prescribed by law for those inhabitants, who, by reason of age, infirmity or misfortune, may-have claims upon the sympathy and aid of society. ’ ’
Were we able to limit our consideration of the Act to this specific objection, independent of other constitutional provision^
Section 4 of Article XII reads as follows: “The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town, or- municipal purposes, but it may by law vest in the corporate authorities thereof powers to assess and collect taxes for such purposes.”
The question at once arises as to whether the per capita
Mr. Cooley says: ‘ ‘ Taxes are defined to be burdens or charges imposed by the legislative power upon persons or property, to raise money for public purposes. The power to tax rests upon necessity, and is inherent in every sovereignty. The legislature of every free state will possess it under the general grant of legislative power, whether particularly specified in the Constitution among the powers to be exercised by it or not.” (Constitutional Limitations, 7th ed., p. 678.)
As to what constitutes a tax we quote the following language, with approval, from 26 Euling Case Law, pages 13, 14: “A tax is an enforced contribution of money or other property, assessed in accordance with some reasonable rule of apportionment by authority of a sovereign state on persons or property
“The police power must be distinguished from the taxing
Capitation or poll taxes are generally regarded as a proper means for raising revenue for public purposes. (37 Cyc. 766.) And the supreme court of the United States has repeatedly held that direct taxes are limited to land and appurtenances
And in applying the provisions of our Constitution to the Act in question we are not unmindful of the doctrine repeatedly
Nor do we overlook the decision of this court in the ease of Pohl v. Chicago etc. Ry. Co., 52 Mont. 572" court="Mont." date_filed="1916-10-16" href="https://app.midpage.ai/document/pohl-v-chicago-milwaukee--st-p-ry-co-8022365?utm_source=webapp" opinion_id="8022365">52 Mont. 572, 160 Pac. 515, directly holding that the imposition of such a per capita tax under the provisions of this very section of the Act (2692) before its attempted amendment amounts to a police regulation rather than a tax. That decision announces dicta merely, and the constitutional provisions herein applied were not considered as affecting the statute. There the Act was assailed as being violative of sections 2 and 9, Article I, of the Constitution of the United States, which declare that direct taxes, if laid, shall be apportioned among the states according to population; and with section 1 of the Fourteenth Amendment, which forbids any state to deprive a person of life, liberty or property without due process of law. Neither section 4 of Article XII of our Constitution nor its effect were considered, and the decision is not viewed by us as correct in so far as it holds such tax warranted as a police regulation.
There is nothing whatsoever in the title of the Act or in
The're is nothing whatsoever embraced in either the title of the Act or the body thereof to indicate an intention to exercise the police power of the state and the Act itself expressly denominates the assessment as “a tax,” and it must be conceded to have all the characteristics of a tax. It is a charge imposed by the legislature for purposes of revenue, and it is an enforced proportional contribution levied by the state for county purposes.
As further indicative that such imposition was intended as a tax, it should be noted that the parent statute (sec. 163, p. 122, Laws 1891), is embraced within a general enactment respecting revenue and taxation for state and county purposes under title “An Act Concerning Revenue.”
We are of opinion that the object of section 4 of Article XII of our Constitution was to relegate to the several counties the whole subject of taxes for county purposes, and that thereby the legislature is denied authority to impose any tax on the inhabitants of a county for county purposes. (San Francisco v. Liverpool & L. & G. Ins. Co., 74 Cal. 113" court="Cal." date_filed="1887-11-10" href="https://app.midpage.ai/document/city--county-of-san-francisco-v-liverpool--london--globe-insurance-5443232?utm_source=webapp" opinion_id="5443232">74 Cal. 113, 5 Am. St. Rep. 425, 15 P. 380" court="Cal." date_filed="1887-11-10" href="https://app.midpage.ai/document/city--county-of-san-francisco-v-liverpool--london--globe-insurance-5443232?utm_source=webapp" opinion_id="5443232">15 Pac. 380.) In view of what has been said it is not necessary to give consideration to the uniformity requirement of the Constitution. (See. 11, Art. XII.) Attempt being made by the Act to levy a per capita tax in fixed amount, to be collected by the several counties for county purposes, we must hold it to be in excess of the legislative power, and therefore void.
Reversed and remanded.
Concurrence Opinion
I concur. Under the title “Revenue and Taxation,” the first part of section 1 of Article XII of the Constitution commands that the legislature shall levy a rate of assessment and taxation that shall be uniform, and that shall secure a just valuation for taxation of all property. It then provides that the legislative assembly “may also impose a license tax, both upon persons and upon corporations doing business in the state.” If the statute in question were leveled at the property of the person, it would be offensive to the first part of the section because of its obvious lack of uniformity in application. If the imposition was intended as a license, it should point to persons “doing business in the state” alone. The Act, however, departs from the authority thus delegated, and singles out every “male inhabitant who is not the head of a family, ’ ’ without taking into account, his ability to pay; or the fact that he may, or may not, be “doing business in the state,” and obliges him to pay an assessment he may be wholly unable to pay. The makers of the Constitution certainly did not intend that oppressive burdens should be thus imposed. The statute is also, in a sense, a punitory measure, because it reaches individuals who, for physical reasons, and perhaps many others, may not be the “head of a family” within its meaning.
"While it may be said that the license tax referred to in the last sentence of section 1, Article XII, is not governed by the uniformity rule, because it controls only licenses (State ex rel. Sam Toi v. French, 17 Mont, 60, 30 L. R. A, 415, 41 Pac.
The police power is an attribute of sovereignty for the regulation of persons, natural and artificial, in all matters relating to the public health, the public morals and the public safety (Aetna Fire Ins. Co. v. Jones, 78 S. C. 445, 125 Am. St. Rep. 818, 13 L. R. A. (n. s.) 1147, 59 S. E. 150), and unless its assumption is to prevent a manifest evil, or to insure the public, welfare, its proper exercise may be a matter for serious debate (22 Am. & Eng. Eney. of Law, p. 938).
Necessary as it undoubtedly is to raise revenue sufficient for the maintenance of the state, the authority must be exercised with delicate caution and within the precise limits found in the fundamental law which creates the power and defines its extent. The pressing needs of the state are not to be satisfied at the expense of guaranties indispensable to the constitutional government of a free people.
For the reasons given by Mr. Justice Galen, the statute is also completely out of harmony with section 4 of Article XII, and unconstitutional.