State v. Camp Sing

• Decision Date: 06 April 1896
• Citation: 44 P. 516,18 Mont. 128
• Parties: STATE v. CAMP SING.
• Court: Montana Supreme Court

44 P. 516

18 Mont. 128

STATE v. CAMP SING.

Supreme Court of Montana

April 6, 1896

Appeal from district court, Silver Bow county; William O. Speer Judge.

Action by the state against Camp Sing to recover a license fee for conducting a laundry business. A demurrer to the complaint was sustained, and judgment rendered for defendant. Plaintiff appeals. Reversed.

The state appeals from a judgment rendered against it upon the sustaining of defendant's demurrer to the complaint. The state brought the action to recover a license fee of $50 alleged to be due from defendant for conducting the laundry business for six months, and also for costs and penalties amounting to $17. The statute under which the state claimed the license is section 4079 of the Political Code, which is as follows: "Sec. 4079. Every male person engaged in the laundry business, other than the steam laundry business, must pay a license of ten dollars per quarter: provided, that where more than one person is engaged or employed or kept at work, such male person or persons shall pay a license of twenty-five dollars per quarter, which shall be the license for one place of business only."

The contention of the defendant upon the demurrer is that this license law of the Political Code is unconstitutional and void under article 12 of the constitution. The sections of that article upon which he bases his contention are Nos. 1 and 4, which are as follows:

"Section 1. The necessary revenue for the support and maintenance of the state shall be provided by the legislative assembly which shall levy a uniform rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, except that specially provided for in this article. The legislative assembly may also impose a license tax, both upon persons and upon corporations doing business in the state."

"Sec. 4. The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city or 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."

This license tax was imposed by the legislative assembly. Pol. Code, § 4079. Under the provisions of sections 3075 and 4050 of the Political Code, 70 per cent. of the license tax provided for is to be retained by the county, and 30 per cent. paid over to the state. The district court held that, as a portion of this license tax, to wit, 70 per cent., went to the county, the law was void under section 4, art. 12, of the constitution, in that the legislative assembly had thus attempted by section 4079, Pol. Code, to levy a tax upon the inhabitants or property in a county for county purposes. Whether this legislation upon the question of licenses is constitutional is the question for determination of the opinion below.

B. P. Carpenter, Henri J. Haskell, and Ella Knowles Haskell, for the State.

Thomas E. Harvey, for respondent.

DE WITT, J.

after stating the facts. Does section 4 of article 12 of the constitution prohibit the legislature from passing a law such as section 4079, Pol. Code 1895, imposing a license tax upon persons and corporations doing business in the state, when part of the proceeds of such license tax goes to the county and can such license tax be imposed only by the county, which is part recipient of the funds collected in pursuance of such statute? This important question could have been reached in the case of State v. French, 17 Mont. 54, 41 P. 1078. It was within our contemplation at the time of writing that opinion, but the question was not mentioned or argued by counsel, and was therefore reserved. It has since engaged the consideration of several of the district courts, and of many of the most distinguished members of the bar in the state. The result is that it has been thoroughly briefed and argued at this time by eminent counsel on both sides. We are sensible of current affairs about us, and cannot but be aware that declaring section 4079, Pol. Code, to be unconstitutional, is the losing, for a considerable period of time, of an immense revenue; but we are obliged to close our minds to such considerations. As Mr. Justice Hunt said in State v. Mitchell (Mont.) 42 P. 100: "It were far better at this time, in the early history of this new state, that a legislative act be declared invalid than that precedent be set by which plain provisions of the constitution be nullified by loose and questionable interpretations of our fundamental law. State v. Tooker, 15 Mont. 8, 37 P. 840." See, also, State v. Gilliam (Mont.) 44 P. 394. And in the matter before us it is better that we suffer all the inconveniences of a present loss of revenue than that we let go of the constitution for the sake of relief from temporary distresses. The argument ab inconvenienti must be excluded from all control over the decision.

But, on the other hand, we must keep in mind another rule of constitutional construction. Judge Cooley, in his Constitutional Limitations, said, in speaking of Chief Justice Shaw: "It has been said by an eminent jurist that when courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject; and never declare a statute void unless the nullity and invalidity of the act are placed, in their judgment beyond reasonable doubt. A reasonable doubt must be solved in favor of the legislative action, and the act be sustained." Cooley, Const. Lim. 182. Judge Cooley also quotes the following from Chief Justice Marshall in Fletcher v. Peck, 6 Cranch, 128: "The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligation which that station imposes; but it is not in slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." He quotes further from Mr. Justice Washington, as follows: "But if I could rest my opinion in favor of the constitutionality of the law on which the question arises on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the constitution is proved beyond all reasonable doubt." See, also, End. Interp. St. § 178. Therefore, with these principles before us, and deeply sensible of the importance to the state of this decision, we approach its consideration with the sentiment that we must be at least fairly satisfied of the unconstitutionality of the license law before we so declare it. The legislature has full power to enact a license law, unless it is forbidden by the constitution. In the case of State v. French, supra, after stating the common learning as to the difference between the constitution of a state and that of the United States, we said: "A state legislature is not acting under enumerated or granted powers, but rather under inherent powers, restricted only by the provisions of this sovereign constitution. We therefore inquire whether our constitution restrains the legislature from enacting such a law as sections 4079, 4080, Pol. Code." We make the same inquiry now. Article 12 of the constitution treats the subject of revenue and taxation. As observed by both counsel in this case, this article provides two systems for raising money. Without intending to be now wholly technical in the use of words, we may describe them as (1) the taxation system, and (2) the license system. We use these terms now simply for convenience, and not as an expression of an opinion in advance as to whether this license is a tax or not. If the legislature sees fit, all revenues may be raised by taxation. Taxation is the security for the debts and expenses. The license system is a further provision. As exigencies arise or do not arise, or cease to exist, the license system may be, or need not be, resorted to. That system is elastic and pliable, and can be suited to circumstances. The important question in this case is, what restraint, if any, is placed upon the legislature in creating a license system? Before examining this question, we will notice that which appears in contrast; that is to say, the restrictions which are placed upon the power of the legislature as to taxation. They are very many. They are an inheritance of our history. We will review some of them. The rate of assessment and taxation shall be uniform, under such regulations as secure a just valuation for taxation of all property, etc. Article 12, § 1. Liberal exemptions are provided for. Id. § 2. Mines and mining claims in the state are liberally protected from what might be, perhaps, deemed excessive taxation. Id. § 3. The valuation of the property for taxation for any town and school purposes shall not be greater than the valuation for state and county purposes. Id. § 5. The taking of private property for corporate debts of...