State v. Gowdy

• Decision Date: 11 January 1922
• Docket Number: 4900.
• Citation: 203 P. 1115,62 Mont. 119
• Parties: STATE EX REL. PIERCE ET AL. v. GOWDY, FLATHEAD COUNTY TREASURER.
• Court: Montana Supreme Court

203 P. 1115

62 Mont. 119

STATE EX REL. PIERCE ET AL. v. GOWDY, FLATHEAD COUNTY TREASURER.

No. 4900.

Supreme Court of Montana

January 11, 1922

Appeal from District Court, Flathead County; Chas. W. Pomeroy Judge.

Action by the State of Montana, on the relation of H. S. Pierce and another, against Nellie B. Gowdy, Flathead County Treasurer. From an order refusing an injunction, plaintiffs appeal. Reversed and remanded, with directions to issue writ.

Holloway J., dissenting.

Jess H Stevens and B. J. McIntire, both of Kalispell, for appellants.

Dean King and J. E. Erickson, both of Kalispell, and L. A. Foot Asst. Atty. Gen., for respondent.

GALEN J.

This appeal is from an order of the district court of Flathead county, refusing a writ of injunction. Appellants sought to enjoin the county treasurer of Flathead county from collecting, or attempting to collect, poll taxes from either of them under the provisions of chapter 261 of the Laws of 1921, commonly referred to as the "Bachelor's Tax Law." If the act is valid, the appellant Howard K. Pierce, who is the head of a family, is subject to the payment of an annual poll tax of $2, and appellant Leonard E. Riebe, being unmarried and without dependents, must pay $5 poll tax. It is required that such exactions shall be paid to the county treasurer, and credited to the poor fund of the county.

By section 1 of the act attempt is made to amend section 2692 of the Revised Codes to read as follows:

"Sec. 2692. Every male inhabitant of this state over 21 and under 60 years of age except paupers, insane persons and Indians not taxed, must annually pay a poll tax of two dollars ($2.00).

In addition to the foregoing poll tax of two dollars ($2.00), every such male inhabitant of this state who is not the head of a family, as hereinafter defined, must annually pay an additional poll tax of three dollars, ($3.00).

The words 'head of a family' shall, for the purpose of this act, be construed to mean any person having wholly dependent upon him for support, a wife, minor child, father, mother, brother, or sister and any such male person actually living with his wife."

The amendment is shown by the portions italicized; the other part of the section being verbatim the same language of the section before the passage of the act. Section 2 of the act is nothing more than a re-enactment of the provisions of section 2714 of the Revised Codes, providing that the proceeds of the tax shall be paid to the poor fund of the county. And section 3 is the repealing clause.

Section 2692 of the Revised Codes was first enacted by the Second Legislative Assembly, and appears as section 163, Laws of 1891, p. 122. In consequence of an amendment of section 167, relating to compelling payment of poll taxes, made by Act of March 8, 1893, p. 65, no reference being made to section 163, the Code Commissioner evidently considered the latter section continued in force (section 3961, Pol. Code) by implication, and it was brought forward as section 3960 of the Political Code in 1895, and thence to the Revised Codes of 1907. It is unnecessary to determine whether it was properly carried forward as a part of the Code provisions, but it is noteworthy that the same subject-matter was fully covered by subdivision 5 of section 4230 of the Political Code, adopted in 1895, as respects which the constitutional objections hereinafter stated have no application. As carried forward in the Revised Codes, it is section 2894, dealing with the powers of boards of county commissioners, subdivision 5 of which empowers them "to provide for the care and maintenance of the indigent sick, or the otherwise dependent poor of the county; erect and maintain hospitals therefor, or otherwise provide for the same; and to levy the necessary tax therefor, per capita, not exceeding two dollars, and a tax on property not exceeding one-fifth of one per cent., or either of such levies when both are not required."

The constitutionality of the act is questioned on several grounds, but one of which will be considered as determinative of the case, namely: Did the court err in not holding that the act contravenes the provisions of section 5 of article 10 of the state Constitution? That section reads as follows:

"The several counties of the state shall provide as may be prescribed by law for those inhabitants, who, by reason of age, infirmity or misfortune, may have claims upon the sympathy and aid of society."

Were we able to limit our consideration of the act to this specific objection, independent of other constitutional provisions, we would have no difficulty in sustaining the act; for it is clearly an attempt to carry out by provisions of law the obligation of the several counties to care for the poor. However, the provisions of the Constitution are mandatory and prohibitory (section 29 of article 3), and this rule applies to every part of the Constitution. State v. Weston, 29 Mont. 129, 74 P. 415. And its declaration with reference to the subjects upon which it assumes to speak are conclusive upon the Legislature. In re Weston, 28 Mont. 212, 72 P. 514. So that of necessity we must read and consider the legislative limitation in the levy of taxes for county purposes.

Section 4 of article 12 reads as follows:

"The Legislative Assembly shall not levy taxes upon the inhabitants or property in any county, city, 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."

The question at once arises as to whether the per capita assessment attempted to be levied by the act is a tax. We think it is for constitutional authority is clearly conferred to levy assessment against persons as well as their property.

Mr. Cooley says:

"Taxes are defined to be burdens or charges imposed by the legislative power upon persons or property, to raise money for public purposes. The power to tax rests upon necessity, and is inherent in every sovereignty. The Legislature of every free state will possess it under the general grant of legislative power, whether particularly specified in the Constitution among the powers to be exercised by it or not." Constitutional Limitations (7th Ed.) p. 678.

As to what constitutes a tax we quote the following language, with approval, from 26 Ruling Case Law, pp. 13, 14:

"A tax is an enforced contribution of money or other property, assessed in accordance with some reasonable rule of apportionment by authority of a sovereign state on persons or property within its jurisdiction for the purpose of defraying the public expense. The exercise of the power of taxation consists of two distinct processes--the one relating to the levying or imposition of the taxes on persons or property; the other to the collection of the taxes levied. The first is constituted of the provisions of law which determine or work out the determination of the persons or property to be taxed, the sum or sums to be thus raised, the rate thereof and the time and manner of levying and receiving and collecting the taxes. It definitely and conclusively establishes the sum to be paid by each person taxed or to be borne by each property specifically assessed, and creates a fixed and certain demand in favor of the state or subordinate governmental agency, and a definite and positive obligation on the part of those taxed. The second is constituted of the provisions of law which prescribe the manner of enforcing the obligation on the part of those taxed to pay the demand thus created. It is often very important to determine whether a particular pecuniary imposition is a tax or not because the power of taxation is restricted by constitutional limitations, different from those applicable to other governmental powers, and the constitutionality of a statute imposing a pecuniary charge may depend on whether such charge is a tax or not."

"The police power must be distinguished from the taxing power, and the distinction is this: The taxing power is exercised for the purpose of raising revenue, and is subject to certain limitations elsewhere considered, while the police power is exercised only for the purpose of promoting the public welfare, and, although this end may be attained by taxing or licensing occupations, yet the object must always be regulation and not the raising of revenue, and hence the restrictions on the taxing power do not apply." 12 C.J. 906.

Capitation or poll taxes are generally regarded as a proper means for...