Hale v. County Treasurer of Mineral County
| Decision Date | 17 March 1928 |
| Docket Number | 6268. |
| Parties | HALE v. COUNTY TREASURER OF MINERAL COUNTY. |
| Court | Montana Supreme Court |
Appeal from District Court, Mineral County; James M. Self, Judge.
Suit by C. S. Hale, suing on behalf of himself and others similarly situated, against the County Treasurer of Mineral County for an injunction. From a judgment for defendant, plaintiff appeals. Reversed with directions.
H. J Snively, of Yakima, Wash., and W. L. Hyde, of Superior, for appellant.
Eugene Harpole, of Superior, for respondent.
P. J O'Brien, of Missoula, amicus curiæ.
The Legislative Assembly at its last session passed an act purporting to impose a license tax "on live stock coming into Montana from other states, and grazing therein providing for collection of same and distribution of such tax," and fixing a penalty for violation of the act.
Section 1 provides that a license tax of 40 cents per head on horses, mules, and cattle, and 10 cents per head on sheep, is "imposed upon all such live stock coming into this state to graze for any length of time whatsoever, provided, however, that no live stock on which the regular annual tax is levied by any county of the state shall pay said license tax."
Section 2 makes it the duty of an owner, or his agent, bringing live stock into this state for grazing purposes to immediately notify, in writing, the treasurer of the county in which the live stock is being grazed, giving the number of the live stock and the location of the land on which they are being grazed.
Section 3 makes it the duty of the assessor to ascertain if there is any live stock from without this state temporarily grazing within his county, and if so to report the number of live stock, their location, and the name of the owner or person in charge thereof to the treasurer, "who shall immediately after receipt of such notice from the assessor or owner of such live stock" proceed to collect the sum of money due and payable from the person keeping and herding the live stock, or his agent; and in the event that it is necessary for the treasurer to collect the taxes due by distress and sale he may proceed without any further warrant for that purpose in the same manner as is provided by law for taxes assessed upon personal property.
Section 4 provides a penalty for a violation of the act by the owner or his agent.
Section 5 prescribes that all moneys collected under the act "shall be divided equally between the general fund of the school district, or districts, in which the live stock is being grazed and the general fund of the county." Session Laws 1927, c. 101, p. 342.
The plaintiff, a resident of the county of Yakima, state of Washington, was the owner of 2,400 head of ewes which were assessed for taxation in Yakima county for the year 1927 in accordance with the laws of Washington, which provide for an assessment on the basis of the valuation of all personal property as of March 1st of each year. Plaintiff had a permit to graze sheep in the Lolo National Forest, which embraces portions of Montana and Idaho. On June 1 the ewes were loaded on cars of the Northern Pacific Railway en route to Chicago, but by an arrangement with the railway company they were unloaded in Mineral county and placed within the National Forest to graze until September 1st. In their migrations it was expected that they would graze in Idaho as well as Montana. A part of the Lolo National Forest is within Mineral county, and the treasurer of that county threatened to collect the license tax of 10 cents per head on all the sheep in accordance with the act by restraining and selling them, and also proposed to arrest the plaintiff for violating the law. The plaintiff, claiming that the act is invalid and unconstitutional, brought this suit against the treasurer to enjoin him from interference. A demurrer to the complaint, interposed by the county attorney of Mineral county, was sustained, and, plaintiff refusing to amend, judgment was entered for the defendant, from which the plaintiff has appealed.
The plaintiff claims: (1) That the act is void under the Constitution of Montana for the reason that the tax is not based upon a uniform legal assessment; (2) that it is invalid under the Constitution of the United States because (a) it denies to plaintiff the equal protection of the laws, and (b) it imposes a burden upon interstate commerce; (3) it is charged that the act is invalid because it is an attempt to regulate the use of the public lands of the United States.
After an exhaustive search of the authorities, while no case directly in point has been found, we are constrained to hold the act is invalid because it denies to plaintiff the equal protection of the laws; and none of the other objections need be considered. It may not be amiss to say, before we proceed with the discussion, that the Legislature in enacting chapter 101, supra, attempted to do what it failed to do in enacting Senate Bill No. 39, approved March 14, 1901 (Session Laws 1901, p. 57) which was declared unconstitutional in Hayes v. Smith, 58 Mont. 306, 192 P. 615. Both acts are directed against live stock brought into this state for grazing purposes.
In considering the question presented we have borne in mind that canon of statutory construction which requires the indulgence of every presumption in favor of the constitutionality of an act of the Legislative Assembly. Every reasonable doubt must be resolved in favor of the legislative action. The court must determine not whether it is possible to condemn, but whether it is possible to uphold the act which is attacked, every presumption being in favor of its validity. The statute will not be declared invalid unless, in the judgment of the court, its unconstitutionality is shown beyond a reasonable doubt. State ex rel. Wallace v. Callow, 78 Mont. 308, 254 P. 187; Mills v. Stewart, 76 Mont. 429, 247 P. 332, 47 A. L. R. 424; State ex rel. Boone v. Tullock, 72 Mont. 482, 234 P. 277; Martien v. Porter, 68 Mont. 450, 219 P. 817. Consequently, if two constructions are possible, one of which will result in declaring the statute constitutional and the other unconstitutional, the court will follow the former. State ex rel. Northern P. R. Co. v. Duncan, 68 Mont. 420, 219 P. 638; State ex rel. Bankers' Trust Co. v. Walker, 70 Mont. 484, 226 P. 894. But where the act, in the judgment of the court, manifestly violates a constitutional provision, it is the duty of the court so to declare.
Section 1 of article 12 of Montana's Constitution provides:
Section 11 of the same article provides:
In State v. Camp Sing, 18 Mont. 128, 44 P. 516, 32 L. R. A. 635, 56 Am. St. Rep. 551, this court, speaking through Mr. Justice De Witt, discusses the two systems of raising revenue which are contemplated by section 1, supra. These he characterized for convenience as the "taxation system" and the "license system."
Taxes are generally classified as either taxes on property or excise taxes, although sometimes the word "excise" is not used, but instead "license," "privilege," "occupation," or the like. Cooley on Taxation (4th Ed.)§ 1670.
Of course, all taxes are levied against the person, not against his property. State v. Camp Sing, supra; Hilger v. Moore, 56 Mont. 146, 182 P. 477; Sanderson v. Bateman, 78 Mont. 235, 253 P. 1100.
In the Camp Sing Case the court pointed out that if the Legislature sees fit all revenues may be raised by taxation, and the "license system" may be or may not be resorted to. The license system "is elastic and pliable and can be suited to circumstances." Touching the "taxation system," the court said that the rate of assessment and taxation must be uniform under such regulations as will secure a just valuation for taxation of all property (except that declared to be exempt), but that the license system is not controlled by the equality and uniformity...
To continue reading
Request your trial