No. 86-19 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

MISSOULA RURAL FIRE DISTRICT, MISSOULA RURALVOLUNTEER FIREMEN'S ASSOCIATION, andVAN W. TARR, Plaintiffsand Appellants,

MISSOULA COUNTY, Defendant and Respondent.

APPEAL FROM: District Court of the Fourth JudicialDistrict, Inand for the County ofMissoula, The HonorableJamesB. Wheelis,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: 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 

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ClerkMr. Justice L. C. Gulbrandson delivered the opinion of the Court.Plaintiffs, Van Tarr,theMissoula Rural FireDistrict, and theMissoula RuralVolunteer Fireman's Association appeal a Missoula County District Court order granting summary judgment to respondent Missoula County. No facts are disputed and the sole issueonappeal iswhether 

### 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 isno such exemptionand,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 toMissoula County requesting

a refund of ad valorem road taxes paid by him since 1980. He based his claimon § 7-33-2314,MCA,whichprovides: 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 frommilitary 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'sAssociation, 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 statutewas intended to exempt firefighters from the ad valorem, property road tax

now in existence. This appeal followed. As stated the only issue iswhether 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 onproperty. The standardof review is clear. Summary judgment is onlyproper 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 amatter 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 everydescription

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# ." This section was originally enacted in 1895. The road tax at that time was codified at S 2640, Political Code of 1895,and provided: Theremust be levied and collected on all taxable property in the county not less than one mill nor more than twomills on the dollar for road purposes, also a specialroad 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 shallbe 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 ormail to each road supervisor a list of the names of allmale 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 ofpaying cash,shallperform 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 sixtyyears of age,exceptpaupers, insanepersons,and Indians, not taxed, must annually pay a poll tax of two dollars." This Courtdeclared thatpoll tax unconstitutional in 1922 in Statev. Gowdy (1922), 62Mont. 119, 203 P. 1115. The exemption statute also refers to a head tax,which at the time this statute was enacted was authorized byS 4230, Political Code of 1895. That statute authorized counties to impose a $2 per capita tax to provide for the

care andmaintenance of the indigent, sick andpoor. 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 courtsmay 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. [Citationomitted.] Hubbard, 649 P.2d at 1333. The exemption statute at S 7-33-2314, MCA, refers to twoper 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 1889Montana Constitutionwas in effect at the time that the exemption statute was passed. Article XII, S 2 of the 1889 Constitutionprovided 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 ofburial notused orheld for private or corporate profit, institutions of purely public charity and evidences of debt secured by mortgages of record upon realor personal property in the state of Montana, may be exempt from taxation. In addressing this section of the Constitution, the Montana SupremeCourt stated: While the language ispermissive in form, it is prohibitory in effect. The Legislature may extend the exemption to theproperty 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 allproperty which may be exempted from taxation." Town ofCascadev. County of Cascade (1926), 75Mont. 304, 308, 243 P. 806, 807. The 1889 Constitution does not include firefighters' property among those types ofproperty 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 isalwayspreferred 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), 617P.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 toexempt firefighters from theper capita road tax and not from the property road tax. This interpretation gives effect to the statute and does not render it unconstitutionalaswould

an interpretation exempting firefighters'property. Appellant contends that this Court should not consider respondent's argument that the exemption statute could not apply to theper capita road tax because the exemptionwould 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 Billingsv. Murnion (Mont. 1984), 684P.2d 1067, 1071, 41 St.Rep. 1132, 1136; citing Bolz v. Myers (1982),200 Mont. 286, 295-296, 651P.2d 606, 611. The rule in Montana is that 

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# ..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 conclusionthat appellant should be denied a tax exemption and that the exemption statutewas 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 abovereasons, we affirm the District Court's order granting summary judgment in respondent's favor. /*

Justice
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We concur: /