Quong Wing v. Kirkendall
| Decision Date | 24 April 1909 |
| Citation | 101 P. 250,39 Mont. 64 |
| Parties | QUONG WING v. KIRKENDALL, County Treasurer. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis & Clark County; Thos. C. Bach Judge.
Action by Quong Wing against Thomas B. Kirkendall, County Treasurer to recover a license fee paid. From a judgment for plaintiff defendant appeals. Reversed.
Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for appellant.
Wight & Pew, for respondent.
Plaintiff brought this action in the district court of Lewis & Clark county to recover the sum of $10, which was exacted of him by the defendant as treasurer of that county. The complaint alleges: That plaintiff is engaged in what may be termed the hand laundry business. That there are steam laundries in operation in the county, the proprietors of which are not required to pay a license. That there is no difference between the plaintiff's business and that of a steam laundry, "except that the plaintiff employs different agencies in the said business; that is to say, this plaintiff uses only hand power for the propulsion and operation of the implements and appliances used in his business, while said (other) persons use steam power *** and employ both males and females in said laundry business." That in addition to the steam laundries there are women engaged in the laundry business in the county "where not more than two women are engaged or employed or kept at work," which business is the same as that of the plaintiff. That said women are not required to pay any money for the privilege of carrying on said business. That said license was demanded by the defendant treasurer by virtue of section 2776, Rev. Codes and was collected solely for the purpose of defraying the general governmental expenses of Lewis & Clark county and the state of Montana. That section 2776, Rev. Codes, is the only law on the statute books requiring the payment of a license for the privilege of conducting the laundry business. The section referred to reads as follows: "Every person engaged in laundry business, other than the steam laundry business shall pay a license of $10 per quarter provided that this act shall not apply to the women engaged in the laundry business, where not more than two women are engaged or employed or kept at work, and said license shall be for one place of business only." The district court overruled a general demurrer to the complaint, and afterwards, in default of an answer, entered judgment in favor of the plaintiff. From that ujdgment the defendant treasurer has appealed. It is claimed by the plaintiff that he is denied the equal protection of the laws guaranteed him by the Constitution of the United States.
1. Let us first assume, for the purposes of this inquiry, without deciding, that section 2776 classifies those engaged in the laundry business. This question was expressly reserved in State v. French, 17 Mont. 54, 41 P. 1078, 30 L. R. A. 415. We assume, also, that this license tax is imposed for the sole purpose of raising revenue for general governmental purposes. It is so alleged in the complaint, and the court had little doubt of the fact when the opinion in State v. French, supra, was prepared, under a somewhat similar statute.
We may not declare this act unconstitutional unless it is clearly so. State v. Camp Sing, 18 Mont. 128, 44 P. 516, 32 L. R. A. 635, 56 Am. St. Rep. 551; State ex rel. Quintin v. Edwards, Mayor, 38 Mont. 250, 99 P. 940. The Legislature is presumed to have exercised a reasonable discretion in making the classification, and the courts ought not to interfere with the action of this co-ordinate branch of the government, until the plaintiff, upon whom rests the burden of proof, clearly shows that he is denied the equal protection of the laws. State v. McKinney, 29 Mont 375, 74 P. 1095. Every intendment is in favor of the validity of the legislative action. In other words, the classification is presumed to be reasonable. See City of Fayetteville v. Carter, 52 Ark. 301, 12 S.W. 573, 6 L. R. A. 509, Van Hook v. City of Selma, 70 Ala. 361, 45 Am. Rep. 85, and Littlefield v. State, 42 Neb. 223, 60 N.W. 724, 28 L. R. A. 588, 47 Am. St. Rep. 697, where somewhat analogous presumptions were considered. If on the face of the measure the classification appears to be arbitrary and unreasonable, or unjust, or no classification at all, a different question is presented. Even assuming that section 2776, Rev. Codes, classifies laundries, we are not disposed to hold that the classification made is manifestly arbitrary or unreasonable. It certainly is not obviously so on the face of it. If such classification is made, then steam laundries are placed in one class and hand laundries in another. We do not regard the exemption of women from the operation of the statute, in certain cases, as amounting to a classification, for the reasons hereinafter stated. The fact that both steam laundries and hand laundries obtain the same results is not controlling. For ought we know there may be good and sufficient reasons for believing that the difference between the two classes, based upon the power employed in conducting the business, is fundamental and all-pervading. We cannot say that this classification is any more arbitrary or unwarrantable than would be a division of gas-lighting plants and electric-lighting plants into two classes. Assuming that it might appear to the members of this court that steam laundries should pay a larger license fee than hand laundries, would the court be justified in declaring a statute unconstitutional which exacted the same fee from both? Or suppose the matter were reversed, and the Legislature should provide that only steam laundries must pay a license, could it then be successfully contended that persons engaged in that business were discriminated against and denied the equal protection of the laws? We do not think so. The Legislature probably had some good reason for exempting steam laundry proprietors from the payment of license, either permanently, or for the time being. In the case of East St. Louis v. Wehrung, 46 Ill. 392, it was held that an ordinance which did not "discriminate as between persons having equal facilities for profit" was not objectionable. See, also, Tulloss v. City of Sedan, 31 Kan. 165, 1 P. 285; City of Cherokee v. Fox, 34 Kan. 16, 7 P. 625. The Supreme Court of the United States, in Magoun v. Illinois T. & S. Bank, 170 U.S. 283, 18 S.Ct. 594, 42 L.Ed. 1037, said: ...
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