No. 86-19 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

MISSOULA RURAL FIRE DISTRICT, 

MISSOULA RURAL VOLUNTEER FIREMEN'S 

ASSOCIATION, and VAN W. TARR, 

Plaintiffs and Appellants, 

MISSOULA COUNTY, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

M. Richard Gebhardt, Ronan, Montana 

For Respondent: 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

Filed: 

Submitted on Briefs: March 6, 1986 

Decided: June 19, 1986 

JUN 1 9 9986 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the opinion of the 

Court. 

Plaintiffs, Van Tarr, the Missoula Rural Fire District, 

and the Missoula Rural Volunteer Fireman's Association appeal 

a Missoula County District Court order granting summary 

judgment to respondent Missoula County. No facts are 

disputed and the sole issue on appeal is whether 5 7-33-2314, 

MCA, exempts volunteer firefighters from paying the general 

road tax authorized by 5 7-14-2501, MCA. We hold that there 

is no such exemption and, accordingly, we affirm. 

Appellant Van Tarr volunteer fire fighter for the 

Missoula Rural Fire District. He owns real property in 

Missoula County which is subject to ad valorem road taxes. 

In 1985 Tarr presented a claim to Missoula County requesting 

a refund of ad valorem road taxes paid by him since 1980. He 

based his claim on § 7-33-2314, MCA, which provides: 

The officers and members of regularly 

organized unpaid fire companies and 

exempt firefighters are entitled to the 

following privileges and exemptions: 

(1) exemption from payment of poll tax, 

road tax, and head tax of every 

description; 

(2) exemption from military duty except 

in case of war, invasion, or 

insurrection. 

Tarr seeks an exemption from the 5 7-14-2501, MCA, tax. That 

statute, entitled General road tax authorized, allows each 

board of county commissioners to levy a general tax upon the 

taxable property in the county. All money collected under 

that section belongs to the county road fund. 

Missoula County denied Tarr's claim for a refund. In 

July 1985 Tarr, joined as a plaintiff by the Missoula Rural 

Fire District and the Missoula Rural Volunteer Firemen's 
Association, filed a complaint in Missoula County District 

Court seeking a declaratory judgment exempting all qualified 

volunteer firefighters from road taxes in Missoula County. 

The complaint also sought a refund of the road taxes paid by 

those qualified volunteer firefighters. 

The county filed an answer to the complaint alleging 

that the complaint failed to state a claim upon which relief 

could be granted. In October 1985 the county filed a motion 

for summary judgment. In December of that year the District 

Court issued its opinion and order granting the county's 

motion for summary judgment. The District Court found the 

exemption statute, § 7-33-2314, MCA, to be riddled with 

ambiguity. The court further found that the exemption 

statute referred to an archaic, fixed sum, per capita road 

tax previously codified at S 2640, Political Code of 1895. 

The court denied that the exemption statute was intended to 

exempt firefighters from the ad valorem, property road tax 

now in existence. This appeal followed. 

As stated the only issue is whether the District Court 

properly granted summary judgment in respondent's favor in 

ruling that certain firefighters have no exemption from the 

B 7-14-2501, MCA, general road tax on property. 

The standard of review is clear. Summary 

judgment is only proper under Rule 56(c), 

M.R.Civ.P., where the record discloses 

that no genuine issue of material fact 

exists and the moving party is entitled 

to judgment as a matter of law. 

Mutual Service Cas. Ins. Co. v. ~cGehee (~ont. 1985), 711 

The statute at issue, S 7-33-2314, MCA, provides 

certain volunteer firefighters with an "exemption from 

payment of poll tax, road tax, and head tax of every 
description . . . " This section was originally enacted in 

1895. The road tax at that time was codified at S 2640, 

Political Code of 1895, and provided: 

There must be levied and collected on all 

taxable property in the county not less 

than one mill nor more than two mills on 

the dollar for road purposes, also a 

special road tax of three dollars on each 

able-bodied man over the age of 

twenty-one years residing in each road 

district. Said special road tax shall be 

due and payable to the county assessor 

before July first, of each year, and the 

county assessor shall collect such 

special road tax on or before July first 

of each year in the manner provided by 

law for the collection of a poll tax. 

All special road taxes collected by him 

must be paid into the county treasury 

monthly, and placed to the credit of the 

road fund of the road district in which 

the same is collected. 

The county assessor shall, on or before 

the first day of July of each year, 

deliver or mail to each road supervisor a 

list of the names of all male persons in 

each supervisor's road district who have 

failed to pay their special road tax for 

the year, and from whom, to the 

assessor's best knowledge and belief, 

said tax cannot be collected in cash. 

Any person whose special road tax is 

unpaid by July 1st of each year, and who 

has no property subject to seizure, or 

other means of paying cash, shall perform 

one day's labor of eight hours on the 

public highways or bridges at any 

reasonable time and place designated by 

the road supervisor. 

The poll tax was imposed by S 3960, Political Code of 1895; 

"Every male inhabitant of this State over twenty-one and 

under sixty years of age, except paupers, insane persons, and 

Indians, not taxed, must annually pay a poll tax of two 

dollars." This Court declared that poll tax unconstitutional 

in 1922 in State v. Gowdy (1922), 62 Mont. 119, 203 P. 1115. 

The exemption statute also refers to a head tax, which 

at the time this statute was enacted was authorized by 
S 4230, Political Code of 1895. That statute authorized 

counties to impose a $2 per capita tax to provide for the 

care and maintenance of the indigent, sick and poor. In 1967 

the Montana Legislature amended that statute to eliminate the 

possibility of a per capita tax for the county poor fund. 

In construing a statute, the intent of the legislature 

controls. Section 1-2-102, MCA; State v. Hubbard (Mont. 

The intention of the legislature must 

first be determined from the plain 

meaning of the words used, and if 

interpretation of the statute can be so 

determined, the courts may not go further 

and apply any other means of 

interpretation. [Citations omitted.] 

Where . . . the language of the statute 

is plain, unambiguous, direct and 

certain, the statute speaks for itself 

and there is nothing left for the court 

to construe. [Citation omitted.] 

Hubbard, 649 P.2d at 1333. 

The exemption statute at S 7-33-2314, MCA, refers to 

two per capita taxes, S 4230 and 5 3960 of the Political Code 

of 1895, which are no longer in existence. Consequently, we 

hold that the exemption statute is ambiguous, unclear and in 

need of statutory construction. 

The 1889 Montana Constitution was in effect at the time 

that the exemption statute was passed. Article XII, S 2 of 

the 1889 Constitution provided that : 

The property of the United States, the 

state, counties, cities, towns, school 

districts, municipal corporations and 

public libraries shall be exempt from 

taxation; and such other property as may 

be used exclusively for the agricultural 

and horticultural societies, for 

educational purposes, places for actual 

religious worship, hospitals and places 

of burial not used or held for private or 

corporate profit, institutions of purely 

public charity and evidences of debt 

secured by mortgages of record upon real 
or personal property in the state of 

Montana, may be exempt from taxation. 

In addressing this section of the Constitution, the Montana 

Supreme Court stated: 

While the language is permissive in form, 

it is prohibitory in effect. The 

Legislature may extend the exemption to 

the property enumerated, but it cannot go 

further or include any other. This is 

the construction uniformly placed upon 

such provisions, and is commanded by the 

rule of interpretation contained in the 

Constitution itself. Section 29, art. 

3 . . . All other property within the 

state is liable to taxation. Section 

2498, Rev. Codes. 

Cruse v. Fischl (1918), 55 Mont. 258, 263, 175 P. 878, 880. 

Furthermore, " [t] he section is to be strictly construed, and 

contains a description of all property which may be exempted 

from taxation." Town of Cascade v. County of Cascade (1926), 

75 Mont. 304, 308, 243 P. 806, 807. 

The 1889 Constitution does not include firefighters' 

property among those types of property which may be exempted 

from taxation. Thus, if the 1895 Legislature intended the 

exemption statute to exempt firefighters' property from 

taxation, the statute would be unconstitutional under Cruse 

and Town of Cascade. We decline to conclude that the 

Legislature intended to pass an unconstitutional statute. 

"An interpretation that gives effect is always preferred over 

an interpretation that makes the statute void or treats the 

statute as mere surplusage." American Linen Supply Co. v. 

Dept. of Revenue (Mont. 1980), 617 P.2d 131, 133, 37 St.Rep. 

1707, 1709; citing § 1-3-232, MCA. 

The road tax in effect when the tax exemption statute 

was passed, S 2640, Political Code of 1895, provided for a 

per capita road tax and a property (mill levy) road tax. We 

hold that the legislature intended the exemption statute to 
exempt firefighters from the per capita road tax and not from 

the property road tax. This interpretation gives effect to 

the statute and does not render it unconstitutional as would 

an interpretation exempting firefighters' property. 

Appellant contends that this Court should not consider 

respondent's argument that the exemption statute could not 

apply to the per capita road tax because the exemption would 

violate the constitutional section quoted above. Appellant 

correctly states that respondent did not advance this 

argument at the District Court level. Although that may be 

true, this Court can properly consider the argument. "Where 

the conclusion of the District Court is correct, it is 

immaterial, for the purpose of affirmance on appeal, what 

reasons the District Court gives for its conclusion." 

Norwest Bank Billings v. Murnion (Mont. 1984), 684 P.2d 1067, 

1071, 41 St.Rep. 1132, 1136; citing Bolz v. Myers (1982), 200 

Mont. 286, 295-296, 651 P.2d 606, 611. 

The rule in Montana is that ". . . every claim for 

exemption from taxation should be denied unless the exemption 

is granted so clearly as to leave no room for any fair 

doubt." Buffalo Rapids Irr. Dist. v. Colleran (1929), 85 

Mont. 466, 471, 279 P. 369, 370; quoting Cruse, 175 P. at 

881. This rule supports our conclusion that appellant should 

be denied a tax exemption and that the exemption statute was 

meant to exempt firefighters from the 1895 per capita road 

tax and not the property road tax. 

This conclusion is further supported by the fact that 

the other two taxes mentioned in the exemption statute, the 

poll tax and the head tax, are also per capita taxes. Thus, 

our holding conforms to the statutory scheme. For the above 
reasons, we affirm the District Court's order granting 

summary judgment in respondent's favor. 

/* 

Justice , 

We concur: /