State v. French

Decision Date14 October 1895
Citation17 Mont. 54
PartiesSTATE ex rel. v. FRENCH, County Treasurer.
CourtMontana Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Lewis and Clarke county; H. N. Blake, Judge.

Petition by Sam Toi for a writ of mandamus to compel E. S. French, treasurer of Lewis and Clarke county, to issue a license to conduct a laundry. From a judgment granting the writ, defendant appeals. Reversed.

This is an appeal from the judgment of the district court upon an application for a writ of mandate requiring the appellant to accept $10 as a license fee from the respondent, and to issue to respondent a license to conduct a laundry. Sections 4079 and 4080 of the Political Code are 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.

Sec. 4080. Every person who carries on a steam laundry must pay a license of fifteen dollars per quarter.”

The respondent here, Sam Toi, appeared in the district court, and filed a petition praying for a writ of mandamus, in which petition he set forth as follows: That appellant is the treasurer of Lewis and Clarke county, and that it was his duty to issue licenses, when tendered the fees therefor; that respondent is a male person, a resident of the county, and engaged in the laundry business, other than a steam laundry, and that he is employing male persons other than himself in such business; that he tendered to the said treasurer the sum of $10, and demanded that the treasurer issue to him a license for the conduct of the laundry business; that the treasurer refused to issue said license unless the respondent paid him the fee of $25, as required by section 4079, Pol. Code. The county attorney filed a demurrer to this petition, upon the ground that it did not set up facts sufficient to warrant the issuing of the writ of mandamus. The demurrer was overruled, and the writ was issued, commanding the treasurer to receive from the respondent the sum of $10, and issue to him a license for the conduct of said laundry business. From this judgment the respondent below appeals. There are some other matters set up in the petition for the writ, which will be noticed as the subject is treated in the opinion below.

H. J. Haskell, for appellant.

A. C. Botkin and J. M. McDonald, for respondent.

DE WITT, J. (after stating the facts).

It appears that the legislative assembly divided laundry licenses into three classes, as follows: Steam laundry, $15; one male laundryman, $10; male laundryman employing one or more other persons $25. The respondent contended in the lower court-a contention which prevailed-that this legislation is unequal and not uniform, and therefore void, under the constitution. The legislature is not required to tax all property and occupations equally or uniformly, unless so commanded by the constitution. Cooley, Tax'n, p. 570, c. 6, quoting Butler's Appeal, 73 Pa. St. 488; Mayor, etc., of Rome v. McWilliams, 52 Ga. 251;Decker v. McGowan, 59 Ga. 805. See, also, Manufacturing Co. v. Wright, 33 Fed. 121.Constitutions of a state are distinguished from the constitution of the United States, in this: “The government of the United States is one of enumerated powers; the national constitution being the instrument which specifies them, and in which authority should be found for the exercise of any power which the national government assumes to possess. In this respect it differs from the constitutions of the different states, which are not grants of powers to the states, but which apportion and impose restrictions upon the powers which the states inherently possess.” Cooley, Const. Lim. p. 10. Therefore a state legislature is not acting under enumerated or granted powers, but rather under inherent powers, restricted only by the provisions of their sovereign constitution. We therefore inquire whether our constitution restrains the legislature from enacting such a law as sections 4079, 4080, Pol. Code.

The respondent contends that the restraint is found in the following provisions of the constitution:

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 this state.” Article XII

Sec. 11. Taxes shall be levied and collected by general laws and for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” Article XII.

The respondent argues that under these provisions the imposition of a license fee of $25 upon him, as a laundryman with a helper, while the laundryman without a helper and the steam laundryman pay a less license, is unconstitutional, in that it is not uniform and equal. We shall not decide whether this law is or is not a classification of the laundry business for license purposes, which the legislature may make, even if it were held that the uniformity clause in the constitution applied to such a license. Many cases might be cited upon this question. We shall decide this appeal without reaching a consideration of that point. A license fee is a tax sometimes, and for some purposes, Sometimes, and for some purposes, it is not a tax. Cooley, Tax'n pp. 572, 573, 592, 596, 600, 601; People v. Martin, 60 Cal. 153;City of Santa Barbara v. Stearns, 51 Cal. 499; Cooley, Const. Lim. p. 245; Desty, Tax'n, p. 305. The particular distinctions as to when a license fee is a tax and when it is not, we shall not discuss, further than to give the reasons for our opinion that this license fee under consideration is not a tax, as falling within the equality and uniformity provisions of the constitution. The constitution provides that the legislature shall levy a uniform rate of assessment and taxation, and secure a just valuation for taxation of all property (article XII. §1), and that taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax (Id. § 11). In a separate sentence in said section 1 it is provided that the legislative assembly may also impose a license tax both upon persons and upon corporations doing business in the state. But neither in this sentence of section 1, nor elsewhere, is it stated that licenses shall be uniform. If the constitution does not require that licenses shall be uniform, they need not be. Judge Cooley says, in his work on Taxation: “It has been seen that the sovereignty may, in the discretion of its legislature, levy a tax on every species of property within its jurisdiction, or, on the other hand, that it may select any particular species of property, and tax that only, if, in the opinion of the legislature, that course will be wiser. And what is true of property is true of privileges and occupations, also. The state may tax all, or it may select for taxation certain classes, and leave the others untaxed. Considerations of general policy determine what the selection shall be in such cases, and there is no restriction on the power of choice, unless one is imposed by constitution. In another chapter it has been shown that constitutional provisions requiring the taxation of property by value have no application to...

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39 cases
  • State ex rel. State Aeronautics Commission v. Board of Examiners of State
    • United States
    • Montana Supreme Court
    • May 11, 1948
    ... ... same conclusion reached. And to the same effect see ... Parsons v. People, 32 Colo. 221, 76 P. 666 ...          This ... court reached the same conclusion in State v. Police ... Court, 68 Mont. 435, 219 P. 810. And this court held in ... State ex rel. Sam Toi v. French, 17 Mont. 54, 41 P ... 1078, 30 L.R.A. 415, that a license fee is not a tax subject ... to the uniformity clause of the Constitution. To the same ... effect is State ex rel. Griffin v. Greene, 104 Mont ... 460, 67 P.2d 995, 111 A.L.R. 770. It is sometimes difficult ... to ascertain ... ...
  • State v. Hennessy Co.
    • United States
    • Montana Supreme Court
    • October 1, 1924
    ... ... section 1, article 12 above, and that it is not controlled by ... the uniform clause of section 11 but may be graduated ... according to the amount of business done are propositions now ... too well settled for further discussion. State ex rel ... Sam Toi v. French, 17 Mont. 54, 41 P. 1078, 30 L. R. A ... 415; Quong Wing v. Kirkendall, 39 Mont. 64, 101 P ... 250; State v. Hammond Packing Co., 45 Mont. 343, 123 ... P. 407; Equitable Life Assurance Co. v. Hart, 55 ... Mont. 76, 173 P. 1062. the fact that a bakery doing a ... business of $15,000 or less ... ...
  • State v. Mckinney
    • United States
    • Montana Supreme Court
    • January 23, 1904
    ...license fee provided for, a tax? We are clearly of the opinion that it is not. Counsel for the appellant rely upon State v. French, 17 Mont. 54, 41 Pac. 1078, 30 L. R. A. 415, as conclusive that it is a tax. A careful examination of that case discloses that the court only decided that a lic......
  • State v. McKinney
    • United States
    • Montana Supreme Court
    • January 23, 1904
    ...Is the license fee provided for, a tax? We are clearly of the opinion that it is not. Counsel for the appellant rely upon State v. French, 17 Mont. 54, 41 P. 1078, 30 L. A. 415, as conclusive that it is a tax. A careful examination of that case discloses that the court only decided that a l......
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