*1 “ that in order Emphasis ‘issue’ herein.” added. It would seem majority must find apply this definition to the trust deed the limiting word “here- that at time the will was drafted trust as well as the will in” was intended to include the deed finding. I to such a part. of which it was a cannot subscribe MR. JUSTICE CASTLES: Har- foregoing
I dissent of Mr. Chief Justice concur rison. MONTANA,
THE STATE OF Respondent, Plaintiff Appellant. TOOMEY, Defendant G. EDMOND No. 9603. May 23, Submitted Jan. 1958. Decided 1958. Rehearing Denied March 1959.
MR. ADAIR JUSTICE dissented and MR. JUSTICE part. ANGSTMAN dissented in Hughes, Toomey, Ralph Anderson,
M. J. Hel- Edmond G. J. argued orally Toomey Ralph ena. Edmond G. Anderson J. appellant. for Helena, Counsel, O. Tax Board of Vralsted,
H. respondent. MR. CHIEF JUSTICE HARRISON: Toomey judgment from appeal
This is an Edmond G. upon action, of and decree favor of five causes each appellant being income tax income earned years 1939, 1940, 1941, judgment providing doubled, each cause of action that the amount of adding per per one month fraction of a month centum April 15 year year, commencing from of each with with April respect action, through 15, 1944, to the first with cause respect to the fifth action, paid. until cause State, in the tax action, imposed each cause of question years income for each of the under Chapter Montana, Revised Codes acts amendatory thereof, appears Chapter 49 of Title which now Montana, Revised Codes
It is appellant’s contention of the Re- Codes Montana, 1935, amendments, during vised applicable years, is, each and now unconstitutional and applicable provisions (a) void under the Constitution of Montana, (b) the United States Constitution. *3 complaint
In its alleged the his duly State that filed verified in years, 1940, 1941, 1942, income tax return each of the and pay but that he did not amount the of the tax any part thereof, owing and there was still due and the of State whole the tax income in reported years specified, impositions (the heretofore together with additional doubled, plus amount of the per tax one centum for each month or fraction of a originally month the time the tax was from due payment). to the date of
Appellant answered, admitting he filed the returns years in question, denying any owing but due and By way of State. further defense to each and all of the action, alleged causes the defendant that the State is without right proceed action, by at all, otherwise or as set out complaint its and the not defendant is indebted to the State subject legal duty any obligation, or liability recognize, pay or discharge the asserted claim of the State, for alleged personal tax statute, the reason said income as an attempt State, taxing exert the of tlie is unconstitu- tional, (a) void, null and in that it violates: °The Constitution States, particularly of the provisions United of section IV thereof, privileges respecting the and immunities State, defendant guaranteed against as a citizen of the State Amendment, action of the Fourteenth and in that equal protection process act violated both the clause and due clause of Fourteenth Amendment to Constitution (b) States; Montana, par- United Constitution ticularly of sections of Article III, XII and section of said State Constitution. action, At trial addition to the facts admitted by appellant, in his answer was adduced Montana, through the State Board of had collected years 1939, 1940 and both income taxes through 30, 1944, but that from June the State col- property taxes, but income taxes for lected no did collect those years. law, findings
In its conclusions of of fact and district every sustained court decided that the State had each and ma- allegation complaint by competent sufficient evi- terial its demanded; that dence to entitle it to the relief defendant’s an- merit; he without and that was entitled to no relief swer was judgment entered its The district court and de- whatsoever. findings law and in accordance with its conclusions of cree judgment appealed. defendant has From this fact. brief, defendant, in his has set out Although the fourteen court upon which he contends this find Montana’s points unconstitutional, points ultimately Tax Law” “Income answer, paraphrase of defendant’s resolve themselves into a he only major points: brief to two argument his in his has confined interpretation rules (1) recognized construc- “Under all *4 XII of the Constitution of Montana la of Article tion section legislative power to tax incomes exercise conditions power each of the incomes (1)' exercise of The .(c) (2) (b) firms, corporations, and of (a) persons, ’’ nse of such taxes. purpose replacing property (2) “The and Mills O’Connell cases should be re- [infra] examined and their respect equal pro- utterances with to the rejected.” tection of the laws
In accordance with rules which this court has held themselves by,
bound we any will discuss issue which learned coun sel argue, have failed to and will the decision of this case confine points in raised defendant’s brief.
Background. The Tax genesis Montana Income found its Law Chapter 181, 1933, by Laws and became effective its terms 16, 1933, March substantially unchanged it remained until Thirty-fourth Legislative Assembly changes made extensive 1955, by 103, therein in Chapters 58, series of Acts found 163, 246 and 260, Thirty-fourth Legislative Session Laws of the Assembly, 1957, Chapters 138, and in 211, 212, 227, 233, Thirty-fifth Session Laws of Legislative Assembly. (Article
The “income tax” XII, la) amendment section the Montana by Constitution was enacted people of the State general Montana at the 6, 1934, election of November proclaimed governor effective 6,1934. on December
Before the enactment of XII, Supreme section Court of Chapter 181, Montana held Laws of valid under the constitutional existing in O’Connell v. Equalization, July State Board of decided 95 Mont. 91, 25 (2d) 114, and Mills v. State Board of May 12, decided case,
In the principal objections O’Connell there were two validity 181: First, “property” taxed XII, defined Article section Montana, Constitution of graduated progressive therefore because of the features of tax, XII, conflicted with Article our section Constitu- tion requiring levy a uniform rate of assess- ment and taxation property, on all and also conflicted with 9, forbidding the rate of taxation on real personal property purposes state to exceed two mills on valuation, proposed each dollar of unless the increase in rate *5 Second, people election; were submitted general at a and Chapter 181, protection equal Laws violated the laws of upon operated Constitution of the United States because it the net corporations engaged income of individuals while entirely. exempted similar lines from the tax of endeavor were answering objection, first that an in- court held (1) property following tax on come tax not a reasons: (2). power; grant Our Constitution is not a but a limitation of expressed The intention tax had its income property”; “not or should be classified or construed to be held (3) law, Enactment Idaho’s since The was borrowed from and court their tax” not Idaho had construed “income law to be presumed one on it is Montana borrowed the law with (4) construction; The Constitutional definition of Idaho (Article Constitution) “property” did XII, section Mont. (5) Legislature, not income; not Montana insofar as include expressly from or United prohibited action Montana an Constitutions, general power had the to enact income States act; (6) provisions by pro- tax The Constitutional invoked (since they “property” referred to testants of the law did not prohibit Legislature from property) is not enact- income Chapter ing objection, this court held that there was a
As the second separate classification of basis for the reasonable individuals purposes, tax and therefore the corporations income under the Fourteenth Amend- not attack law was vulnerable to Federal ment to the Constitution.. case, supra, Mills
In the (1) holding its in the O’Connell Reaffirmed court case.that a- tax incomes is not tax on property, that a is not income Chapter not that therefore did violate sections property, Constitution; (2) XII of Montana of Article levy tax Chapter failure of income that the Held (in the absence of the as individuals as well corporations, Constitution), suspension not amount to did amendment corporations thus did right to tax relinquishment (3) Montana; Constitution violate seetion Article authority con- Equalization the' Held that Board of had operation because retrospective in its Chapter strue 181 as intention of language that was the of the act showed there retrospective operation its Legislature make retrospec- being prohibiting limitation special no constitutional no except XY, legislation, tive of Article (4) pro- Held application; viding deposit portion for the of the income collections *6 emergency fund, to state did of relief not violate section duty X XII making and seetion of Article it the persons provide for were counties the sustenance of who unable for prohibiting Legislature to care themselves and levying upon from a tax the inhabitants of for county counties purposes, question fund in for county because the was not one purposes and because section X prohibit did not Legislature making provision whereby from also the state persons could assist in the care of unable to care for themselves; (5) position Reaffirmed its in the 0 ’Connell case that the failure Legislature impose an income tax corporations, imposed Chapter while an tax income individuals, did protection not the equal violate clause the Federal Constitu- tion a reason in because substantial character existed for the (6) discrimination; Held that 1 Chapter seetion Laws Extraordinary 1933-1934, Session providing for a in surtax addition the normal net imposed tax on incomes by Chapter Laws construed the State Board of Equali- providing graduated as zation for a progressive surtax, and,, provide, because it not so did the act great resulted in discrim- taxpayers substantially inations equal between net incomes,, basis, arbitrary which discriminations so were that no rational or reason their existence could be suggested, and thus the- specified rates therein violated the Fourteenth Amendment of' the Federal Constitution and were invalid. The State Board of' enjoined Equalization enforcing from and attempting to- specified in collect the surtax court,
From the above resume it can be- observed in both the cases, O’Connell Mills was not with the faced argument presented by argument appellant in his first set out above. discussing brief, appellant in his con- the O’Connell case abrogated
tends it of constitutional certain fundamental rules impliedly gave construction and a carte blanche unrestricted Con- write their own law our uninhibited language stitution. these certain The basis for contentions is appellant, mind, to our distorts and opinion found contemplated by moulds into a doctrine the court not case, interpretation a fair nor our view does it amount to stands language Appellant contends 0 ’Connell case used. tax proposition not income assembly such, it was not legislative intended because the said expressly prohibit did not the Montana Constitution and because position so. tax, it had the inherent to do an income to attack soundness of provoked the emphasized decision. O’Connell interpreta will bear out this of the case An examination legislative looking intent, acknowl court, This tion. expressed by what was rule that were not bound edged the supra of Equalization, Board act, v. State in the O’Connell *7 legislature (2d) 118, 25 nor what the in Pac. 110, 95 Mont. recognized also The court the to be. tended by power insofar only as restricted constitu to inherent Mont, 25 pages 110, 111, page Pac. at 95 at tional mandate. scholarly legis lengthy gives review While high light inhibition to the constitutional power versus lative (in supported by is the O’Connell case reasoning contends he law, Marbury of constitutional v. fountainhead cluding it 60), 2 L. is of little in this Ed. value 137, 1 Madison, Cranch in reasoning of the court the 0 ’Con erroneous because case cursory examination, light. come to not, under a does nell case 146, 163, 56 Hilger Moore, v. Mont. case of quoted oft
43
brief),
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department
following language:
legislative
find the
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State,
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To
51
“Taxation raising public revenue is a sub- ject peculiarly inherently legislative cognizance. (1 Cooley Taxation, Id., p. 7), Legislature and our was there- authority fore within its enacting Bill House No. unless authority .the to do so denied the state Constitution ’’ by n the Constitution of the Emphasis United States. added. abrogate The O’Connell case did not the principles Hilger Moore, appellant contends, v. specifically but it invoked the same rule. frequently
This court has also held that in construing legisla legislative look interpret tion we intent to of a statute. State ex rel. Leslie, DuFresne v. Mont. (2d) 959, 1329; A.L.R.. State ex rel. Judith Basin
County Poland, v. Mont. Wells Fargo & Harrington, Co. v. Mont. Pac. 463; McClintock Falls, City of Great Pac. 99. pronouncements legislative
There are no new as to power case, nor say O’Connell did we is the “ar- *8 44
biter” its of power, own rather we adhered to time tested rules of construction arriving at the correct result. We find no fault with language used in O’Connell v. State of Board Equalization, supra. Const, la, Section Montana. We come to a of appellant’s
discussion argument attacking of first valid ity Chapter of 181. We enter this discussion with of aid established rules of rules governing construction and Constitu tional law: First, fully cognizant we are of the rule our grant (Hil Constitution is power. a limitation than rather ger v. Moore, supra; City Falls, McClintock supra; v. Great Great Northern 88 Commission, Utilities Co. v. Public Service 180, 294; Mont. Sparling State ex rel. v. Hitsman, 747); Second, every Mont. Pac. doubt must re be (State legislative validity solved of the ex rel favor County Leslie, supra; Treasurer of DuFresne v. Hale v. Mineral O’Connell County, Mont. Pac. v. Board of legislative supra); Third, that construction may binding given statute, court considera while not Fourth, cited, supra); reference (see authority with tion speak the it assumes to Constitution is subjects upon con (State Leslie, rel. ex DuFresne v. upon the clusive Gowdy, Pierce ex rel v. supra; State separate three government divided into Fifth, that our 1115); may usurp branch branches, and that one distinct (State Leslie, rel. ex DuFresne v. branch of another powers IX, Montana; State ex Acticle Constitution section supra; Sixth, 392); Sullivan, Mont. v. Hillis rel. provisions legislative and constitutional interpreting office VIII, (section Article Constitu in the courts exclusively lies Leslie, supra); ex DuFresne rel. Montana; State tion mandatory Constitution are Seventh, express are declared other words unless prohibitory, Montana). As a III, Constitution (section wise say authority rules we aforementioned corollary expressly denied must be enact *9 XII, upon the burden is proving Article and denial appellant before court will declare the law invalid.
Bearing in mind the doctrines hereinbefore set forth we will appellant’s consider first Montana’s contention that “income tax operate simultaneously law” is invalid because it does not upon persons, corporation the incomes of and that it firms replace does not property taxes, alleged within the constitu- tional legislative assembly “may mandate that levy and col- lect taxes incomes of persons, corporations firms and purpose replacing property support argu- taxes.” his To ment contends first, that to Ar- la, construe section ticle XII, grant as a power legislative assembly, would be to hold the people amending the act of Constitution, as a mere idle act. reasoning
Does this necessarily follow? One could easily as many construe of the provisions XII, la, of section Article mandatory prohibitory reaching without sought the result after appellant. Thus, by confining imposition to persons, corporations, people easily could hme firms intended to limit the tax groups to the delineated without neces sarily 'meaning the tax imposed should simultaneously. Would this be an idle act? Would merely this be grant power? argument may
The same be made with pur reference to the pose for which the tax is Thus, legislation levied. enacted purpose have for its replacement property taxes, impose but does this duty (beyond affirmative a rea doubt) replace property sonable entirely? taxes We do not mandatory that is believe conclusion. Had people meant replace should taxes completely on tax, they advent of an income would have in stated their junction in the form of “must” or “shall” or “no” as other constitutional proscriptions are worded. argument
The second made our Constitution is not a grant but legislative a limitation power. Citing Hilger Moore, supra; ex rel. Sam Toi v. French,
46- R. Mont. 30 L.R.A. Northern Pacific Pac. many Mjelde,
Co. v. Mont. others. However, conjunction section with this rule we must consider III, Constitution, pro- states that the Montana which prohibitory, “mandatory visions of our Constitution are express otherwise.” unless-by to he words are declared Emphasis supplied. in section We have words contained prohibitory provision take the without the as- place exception, e.g., legislative rule and within the sembly “may.” “unless” thirdly,
Counsel contends that the clause taxation, III, operation of Article the field of no Lewis and Clarke citing Northwestern Mutual Life Ins. Co. v. County, Rep. 572, Am. St. *10 However, Fischl, 55 175 878. neither 258, Cruse v. Mont. Pac. Fisehl, proposition stands for the cited. Cruse v. these cases XII, 2 proposition that section of Article supra, stands for the power. holding In grant hot a limitation of essence the is but a unius est merely applies the doctrine Inclusio of the Cruse case provision exclusio alterius to the constitutional considered stating exemptions that contained in that section case, that Northwestern expressly are those mentioned. The confined to proposition for for case, supra, possibly stand could which it cited. expressly negatived proposition this court has
Moreover 348, Driscoll, 101 by appellant in State v. Mont. propounded charged (2d) defendant was with 54 Pac. 571. In that case way By of defense he con- liquor control act. violation of in that it the Montana Constitution tended that violated for in specifically provided tax which was not created excise reads: 1, Article which section support maintenance of necessary for the “The revenue assembly, legislative provided shall be the state taxation, and shall levy a uniform rate assessment shall just regulations as shall secure a valuation prescribe such provided property, except specially of all taxation
47 impose a li- legislative assembly also in this article. The corporations doing busi- upon persons tax, cense both ’’ state. ness 1, by providing defendant that section that case contended any form tax, excluded other for a tax on and license depended solely on argument defendant’s of taxation. Much of our 29, III, his that section Constitution contention mandatory. At 1, XII, prohibitory made section Mont, (2d), court, 358 101 575 page page speaking through Mr. Justice Anderson said: accept
“This court has heretofore its decisions declined to Gelsthorpe Furnell, Pac. this construction. Mont. 170; L.R.A. O’Connell v. State Board (2d) Equaliza Pac. Mont. Mills v. State Board of tion, However, Mont. the results apparently counsel, those have not are cases convinced and we again propose, confronted with a similar contention and now possible, again if to settle same contention so it will not recur. construing
“This court in certain of the Consti- applied tution in certain instances the rule of ‘Inclusio unius ’ City est alterius. In the exclusio case of State ex rel. of Helena Co., v. Helena Waterworks the court considering powers the extent original of its to assume jurisdiction. Attention was the fact that section directed to court, provided of article VIII of the Constitution except provided Constitution, in the have otherwise should jurisdiction only, same appellate and that *11 original proceedings article certain are enumerated in which jurisdiction court held that was vested this court. The 29 provisions of section of article construed with view of the original this court is limited its sections of Article jurisdiction proceedings specifically mentioned to the in sec- tion 3.” goes applying
The court on to discuss two more cases doctrine of unius Inclusio est exclusio then alterius and states at page 360 of 101 Mont., page (2d):
“It will be noted that in each cited, of the three snpra, cases wherein this applied court has the rule of ‘Inclusio est unius alterius,’ exclusio express provision some of the Constitution by legislative violated fact, enactment. this court in case v. Hudson, supra, Evers [36 462] said: II, ‘Section art. is not a legislative limitation power, but is a solemn mandate Legislature.’ It was not a case in either by instance where subject the mere mention of a in the Constitution the court held that all others of a similar class were excluded. The maxim being only a interpreta rule of tion and not command, a constitutional hold, we now as we have held in the past, that the two methods of taxation mentioned or provided exclusive, are not Legislature adopt other methods of taxa prohibited tion which are some other section of the Con stitution.”
It appear Driscoll, would supra, that State v. ample author- ity proposition provisions for the that the of section XII, may merely permissive be construed as violating without provisions of section of Article III.
California has at a similar also arrived conclusion in constru- ing Constitution, although they of its have a Consti- enactment identical our tutional own section Article III. Constitution, See West’s Ann. California Article I, see. (2d) Kuchel, In Dean v. Cal. 811, the Supreme Court, en banc, California considered the following case: passed
In 1947 the California the “Wildlife 1947.” Conservation Act of West’s Ann. Fish Code, and Game seq. provided et for the sec. creation of a wildlife consisting board the President of conservation the Fish and employee Commission, Game executive officer of the com- commission, and the mission chosen Director of Finance. membership' the statute Pursuant Board was filled *12 conditions survey of they employed to make a Seth Gordon and to draw Comptroller, refused Bespondent, California. and other salary of Gordon payment of the warrants The unconstitutional. that the act was employees ground Art. Const. (West’s Ann. Cal. provision invoked constitutional di- for the may provide 25%) legislature “The IY, sec. states: may and enact game districts State into fish and vision districts or game in such protection fish and such laws may appropriate. it parts thereof as deem of five mem- shall be a Fish Game Commission “There subject by Governor, appointed to confirmation bers * * * years Legislature Senate, six The with a term of office of relating may delegate powers pro- to the the commission such game tection, preservation of as the propagation and fish Emphasis Legislature fit.” added. sees pro- It was asserted that reason of above constitutional authority delegate any one vision no any except powers relating protection, commission to the preservation fish and propagation game; under the expressio construction, rule unius est alterius, exclusio reached; that, therefore, must result be the Conservation it delegated powers invalid such Act was because conser- board. vation holding question prohibit article did not Board, court, Wildlife Conservation page
creation at (2d), page (2d), Cal. said: only “Here are factors which create doubt there that the acting through to be restricted to Legislature was the Fish and legislating game fish and field, Commission Game but that it not to be so limited. are indications The there word- points begins in that direction. It ing of section with the 25% Legislature may enact such laws declaration that for the game appropriate.’ it fish and ‘as deem protection Legislature may it delegate is and to created commission relating game fit. powers to fish it sees The word such reasonably susceptible permissive meaning ‘may’ at least mandatory rather than prohibitory, it been held that when such word is used will not create a restriction on the legislative power though even the Constitution Const., Cal. art. I, provides: sec. 22 also ‘The provisions of this Constitution are mandatory and prohibitory, by express unless words are ’ declared to Superior otherwise. See Fresno National Bank v. *13 Court, 83 24 157; People Nye, Cal. App. Pac. 9 v. Cal. 98 241; Pac. Mundell Lyons, v. 950; Cal. Pac. but see In re Cencinino, App. 31 Cal. may Pac. 167. That it delegate powers may such as it may it see indicates that fit fail any delegate powers. to It provision may that true im- pliedly may not, mean that it discretion, or delegate at its powers, they such does, biot it must be on the com- if conferred But necessarily mission. this is not meaning necessarily or a implied negative; any nor it Emphasis does eliminate doiobt.” supplied. might
You paraphrase emphasized well portion of the say XII, California decision and that under section Assembly Legislative may may tax, not enact an income it but if must it impose does it per- incomes of sons, corporations, simultaneously firms and replace and it must property completely. necessarily taxes “But this is not necessarily meaning implied or a negative; nor does it eliminate ’’ any doubt. (2d) pages page At at Cal.
(2d) the Dean we language case find further which is most apt in la construing section of Article XII: . * “* * thought legislature] The main that it was was [the * # * empowered authority delegate the commission. people, involved,
“If the amendment here desired to repose therein in the Commission created the exclusive game state, objective the fish this control resources by employing language have been could achieved similar to that provision industry for the of the liquor used control Const., XX, this art. 22.” state. See Cal. sec.
Next, argues must construe the we amendment light existed at the time in the the conditions 184, 187, 232 adoption. Love, Rankin Mont. of its v. Court, 73 Bottomly District ex rel. sup agree. In
541, 547, 237 Pac. With this contention we 525. amendment, ap interpretation of the constitutional port his submitted pellant cites the title the amendment when was “Property Tax Re people in 1934. The act was entitled title, together this Appellant lief Amendment.” contends adoption of the amend existing time of with facts in conclusively la, Article ment, shows that section replacement property taxes. The complete tended to be ex facts, support interpretation, were the alleges he g., country existing in e. treme economic conditions being farm depth depression, in the of a lands county taxes, number pay for failure and the lost to the delinquent property taxes
However, do feel that the mere fact title to the we property taxes can “relief” from amendment cantained complete existing given sole connotation relief of an *14 entirely. Morphine pain eliminating it burden. relieves without upon single get man task relief if man put a would another One him, not' assigned help to aid but such additional would were only job constitute him all the burden of the but would relieve of Dictionary International de partial “relief.” Webster’s New “succor,” lessening burden, fines as a a “comfort” “relief” complete supplant these a and “ease.” None of words connote the amendment nor the of the word in the title of ing, did use interpretation. such presented people to demand by appellant, us In to economic facts cited to we addition by made Mr. Justice following observation also consider must supra, Board of Stewart in O ’Connell v. State Mont, 104, (2d) at 116: page page Twenty-third Legislative message
“The in his Governor state, taxation situation in the Assembly attention called proposition passed tax the income and declared a care- recommended that sound and experimental stage, and fully drawn income tax In law be enacted. the course his supreme discussion the matter said: ‘The he our court state, Idaho, sister held a recent case that it within legislature to enact an income without law submitting the question to vote of the people, under a Consti- tution very If, however, your similar our opinion own. required case, Constitutional amendment is it should be ’ present legislative assembly. submitted to the conformity “In recommendation, with the Governor’s chap- ter consideration, now under was enacted. further con- formity recommendation, Legislature provided his with the submission of a constitutional amendment under the terms Chapter proposed amendment, of the Laws 1933. submission, upon act of will voted be of. people general November, at the held in election to be adopted, If the new amendment will add section of article of our following provision: Constitution the ‘The Legislative Assembly may levy and collect taxes persons, incomes of corporations firms and the purpose replacing property taxes. These income graduated progressive taxes be and shall distributed to the public schools and state .government’.” quoted portion
From the of the O’Connell find case we very Legislature at the adopted Chapter 181, time when the Laws by Chapter also enacted Laws of people. the amendment to purpose be submitted to the If the replace the amendment had been to taxes completely or had been conditioned imposition persons, its firms corporations, conceivably then would have Chapter along lines, framed those but it did not. (1)
In addition we must the following consider facts: (2) became Laws effective on March On July 19, 1933, supreme court decided O’Connell case, *15 validity supra, the of sustaining act; (3) April the On 1934, 10,222 persons filed their first tax Montana income re- paid aggregating $153,164.60; (4) turns tax income and in favor of people the voted November Thereafter, on thereby adopted it. the constitutional amendment adopting people, the in only assume that is It reasonable Constitution, it in the adopted the amendment to our placed the existing tax law and construction light income of upon by this law court. that fully cognizant of the circum-
Furthermore, people were in 181, had been declared valid stances under which decisions; Mills Both were three-two O’Connell cases. proclaimed by validity legislation a divided XII knell sounded the death court; the amendment to Article as it then any opposition law existed. personages voting public fully aware that The minds revenue, income, A could change. on this court source this change opinion members of jeopardized government state Efficient administration of demands court. revenue, steady government, life blood of flow state By carry enacting order out its section la the functions. Legislature doubt enact income of whether put impliedly Montana forever to rest. citizens law was They approved the act of our then existed. majority approved opinion court the O’Con nell and Mills cases. opinion foregoing reasons,
For we are of the beyond prove failed a reasonable doubt legislation im- income tax conditioned corporations position persons, tax on firms and simultane- complete replacement taxes. ously, argument appellant, to review second contended respect and Mills cases with to their hold the O ’Connell reject the laws their hold ings equal protection on the argued Appellant pre in both cases. ings, has all been before cases; reviewing holdings those grounds sents no new rejected. For arguments made before presents no he a further discussion of reason, we fail to see what value argument would have. *16 (cid:127) Having examined Mills reasoning in the 0 ’Connell and eases, having failed perceive any fundamental weakness in opinions, reject those appellant’s we must argument on this point. judgment
The and decree of the district court is affirmed. MR. JUSTICE and THE CASTLES HONORABLE JOHN McCLERNAN, B. Judge, District sitting place in of MR. JUS- BOTTOMLY, TICE concur.
MR. JUSTICE ADAIR dissents. ANGSTMAN, MR. JUSTICE dissenting part in concurring part: in
To the extent majority opinion that the herein is on rested opinions of this in court ’Connell Equali O v. State Board of (2d) zation, Mont. Pac. and Mills v. State Board Equalization, (2d) 563, Mont. both of which I dissented, I solely ground concur on of stare decisis.
I disagree with judgment the affirmance of the far it so as imposes, penalty, doubling as a tax. The legislature impose, penalty, doubling of the tax obligation upheld by been this Hardy ex court. State rel. State Board of (2d) Mont. that I disagreed but will noted likewise with the ma- jority opinion point majority on and still opin- believe Ordinarily yield ion in that erroneous. I case would now opinion point ground majority on that also on the of stare opinion long standing. opinion been one of decisis had the The 8, 1958, January in fact the was rendered statute had prior changed penalty been to the decision and the was reduced 25 percent. majority opinion Hardy in the has not been acqui case years general public period over a as is true esced Mills, supra, hence the cases of O’Connell and the mem question free to soundness. State ex rel. bers of this court are its Examiners, Board Morgan v. State (2d) 336. in the dissenting opinion my
I think for the reasons stated so is To do Hardy case, the tax should not be doubled. supra, contrary to penalties impose excessive unreasonable Waddill say though I Commissioner Constitution. even Gas & Elec St. Matthews disagrees with me. Commonwealth v. Ky. 1952, Shop, W. tric S. percent be im- penalty of 100 should not
Furthermore By Chapter 163, posed Laws of here another reason. By percent. to 25 reducing penalty the law was amended then, imposing percent pen- a 100 necessary construction law alty repealed. *17 is saving some contains no clause. While there
conflict, authority weight supports clear the view that rights imposing penalty repealed has been all where statute penalties gone. theretofore accrued are have Taxation, c, p. 579, is in 85 sec. 1022 The rule stated C.J.S. follows: repeal imposing penalties delinquents, on tax
“On of a statute penalties accrue; contrary and, while the doctrine cease maintained, authority is weight to the effect that been rights penalties gone, all which have theretofore are accrued contrary, provision of a constitutional un- absence act; right repealing saved and this true less the been claims both where suits have commenced or made penalty repealing passed, before where suit was brought penalty passage repealing to enforce the after the penalty accrual of has been Repeal after assessment and act. penalty, although the tax itself held debar revival may be revived.”