#### BOARD OF COUNTY COMMISSIONERS OF CUSTER COUNTY, Appellant, *v.*STORY, Respondent. and BOARD OF COUNTY COMMISSIONERS OF CUSTER COUNTY, Appellant, *v.*STORY et al., Respondents.

(No. 1,453.)

(Submitted April 18, 1902.

Decided May 26, 1902.)

*Taxation*— Personal *Action to Collect a Tax*— Biatxde *of Limitations*— Constitution.

1. Compiled Statutes oí 1887, First Division, Section 42, Subdivision 2, as amended by Laws of 1893, page 50, and Code of Civil Procedure of 1895, Section 520, limit the time for commencing a personal action to collect a tax to two years.

2. Compiled Statutes of 1887, First Division, Section 42, Subdivision 2, as amended by laws of 1893, page 50, and Code of Civil Procedure of 1805, Section 520, are not in conflict with Constitution, Art. V, Section 30.

*518*Appeal from District*Court, *Gallatin County; F. E. Arm*strong, *Judge.*

ActioN by tbe Board of County Commissioners of Ouster County against Nelson Story, and action by tbe Board of County Commissioners of Custer County against Nelson Story and Walter D. Story. By agreement of tbe parties the causes were consolidated' and tried together. From judgments for defendants, plaintiff appeals.

Affirmed.

*Mr. C. B.*Nolan, and *Mr. James Donovan, Attorney*General, for Appellant.

*Mr. A. J.*Campbell, for Respondents.

The HONORABLE J. B. Leslie, District Judge of tbe Eighth Judicial District,

silting in tbe place of Mr. Justice Milburn, delivered tbe opinion of tbe court.

These actions were instituted against tbe defendants in the-district court of Custer county on tbe 6th day of August, 1897. Subsequently a change of venue was ordered by said court to tbe district court of Gallatin county.

In tbe first-named action a recovery is sought against tbe defendant therein named on account of unpaid taxes assessed against him by the authorities of Custer county for tbe yeai” 1889, amounting to the sum, with penalty added, of $759. Tbe second action is similar in character. In two- separate causes is alleged the default of the defendants in the payment of taxes assessed against them by tbe county authorities of Custer county for the years 1890 and 1892, amounting to- tbe sums, with penalties added, respectively, of $7,087.15 and $187. Said sums sued for are alleged to- have matured in tbe respective years of their assessment. To- each cause answer was made traversing tbe material allegations, and, in addition, as against each cause of action, tbe statute of limitations was pleaded. By agreement of the parties tbe causes were consolidated, and *519tried toget-ber by tbe court below sitting without a jury. At tbe conclusion of plaintiff’s testimony the defendants moved for a nonsuit upon tbe ground tbat it affirmatively appeared tbat tbe actions were barred by tbe provisions of Subdivision 2 of Section *42*of tbe First Division of tbe Compiled Statutes, as amended by Section 1 of tbe Act of tbe Third legislative assembly, approved March 10, 1893 (Laws 1893, p. 50), which motion was sustained by tbe court,, and judgment in favor of tbe defendants entered accordingly. From tbat judgment tbe plaintiff prosecutes this appeal.

No question having been raised touching tbe authority of plaintiff to bring these actions in tbe name of tbe board of county commissioners, its capacity to sue is assumed for the purposes of this appeal.

In addition ¡o the material averments of tbe complaint, it is further alleged, relative to tbe properly on account of which tbe taxes sued for were assessed, tbat it “was at all times while within said county situate upon tbe Crow Indian reservation, and tbat after .-aid tax was assessed and levied and became delinquent tbe treasurer of said county plaintiff frequently attempted to go upon said reservation to collect said tax, and was' at all times before tbe removal of said property from tbe said county hindered and prevented from SO1 entering upon said reservation and collecting said tax by distraint of said property by tbe United States Indian agent and by tbe United States authorities in charge of said reservation, and by tbe injunction orders in said matter made and issued by tbe United States circuit court of the Ninth circuit in and for tbe district of Montana, and was by the action of said federal authorities and said federal court vLolly prevented from seizing and distrain-ing tbe property of defendants.” A careful examination of tbe testimony liad at tbe trial fails to disclose any proof offered in support of this contention. Whether these averments were incorporated in tbe pleadings for tbe purpose of taking tbe causes out of tbe operation of the statute of limitations it is needless to speculate, or what effect tbe alleged hindrance, if *520established, would have upon the statute, is unnecessary to determine. The sole question presented by this appeal is whether the statute of limitations runs against the state, or a subdivision thereof, in an action to recover a judgment for an unpaid tax claim, — whether said Subdivision 2 of Section 42, as amended, contravenes the provisions of Section 39, Article V, of the Constitution.

The statutory and constitutional provisions which have application to and must determine the question under consideration are as follows: Section 28, First Division, Compiled Statutes of 1887: “Civil actions can only be commenced within the periods prescribed in this title after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute.” Section 42, Id., as amended: “An action upon a liability created by a statute, other than a penalty or a forfeiture, shall be commenced within two years.” Section 49, *Id.:*“The limitations prescribed in this act shall apply to' actions brought in the name of the territory, or for the benefit of the territory, in the same manner as to actions brought by private parties.” The section last quoted, as carried into Section 520, Code of Civil Procedure, reads: “The limitations prescribed in this chapter apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties.” Section 39, Article V, of the Constitution: “No obligation or liability of any person, association or corporation held or owned by the statej or any municipal corporation therein, shall ever be exchanged, transferred, remitted, released or postponed or in any way diminished by the legislative assembly; nor shall such liability or obligation be extinguished except by the payment thereof into the proper treasury.”

Legislative intent is manifest from the language of Section 49, *supra,*that the statute should operate with equal force against an action by the state, or for the use and benefit of the state, as against a private individual. If demands of the character of those in suit are “liabilities created by statute,” and *521the sections of the statute above quoted are not repugnant to the provisions of the constitution, it logically follows that the lower court properly held that appellant’s right to proceed by action was barred.

Is the obligation to pay a tax demand levied and assessed by the proper authorities, and in accordance with legislative direction, a “liability created by statute” ? That it is such a liability is well supported by reason, and is, almost without exception, the view adopted by courts of last resort.. The state, as an incident of its sovereignty, possesses the power to impose upon persons and estates within its jurisdiction their just and proportionate share of the expenses and burdens of maintaining its existence and effecting its objects, limited only in the exer-icse of this power by constitutional restrictions. This power to tax is strictly legislative, and its exercise must ensue from the mandate of the law-malcing branch of the government in the establishment of fixed and general rules insuring, as near as may be, exact impartiality and equality in the distribution of the common burden. The process by which this exaction from the individual or the estate is accomplished is the product of statutory enactment. The duty imposed is characterized and defined by and dependent upon the legislative will, and is a liability created by statute. Some of the numerous decisions adopting this construction are *Bristol*v. *Washington County,*117 U. S. 147, 20 Sup. Ct. 585, 44 *L.*Ed. 701; *State*v. *Mining Co.,*14 Nev. 226; *City and County of San Francisco*v. *Jones*(C. C.), 20 Fed. 188; *San Francisco*v. *Luning,*73 Cal. 610, 15 Pac. 311; *County of Redwood*v. *Winona & St. P. Land Co.,*40 Minn. 515, 42 N. W. 473; *Pine County*v. *Lambert,*57 Minn. 203, 58 N. W. 990; 19 Am. & Eng. Enc. Law, (2d Ed) p. 282, and cases cited; Cooley on Taxation, 435.

A demand for taxes being a liability created by statute, the next inquiry is, do the provisions of said Subdivision 2 of Section 42, as amended, and Section 49, conflict with Section 39, Article V, of the Constitution? This question must be answered in the negative. The inhibitory words of the constitu*522tion are tliat ím obligation or liability in favor of tlie state sliall be “exchanged,” “transferred/’ “remitted,” “released,” “postponed,” “diminished,” “extinguished.” That the terms “exchanged” and “transferred” can have no application to the subject herein must be conceded; nor does the statute “postpone,” or suspend for a time, the remedy for the enforcement of payment, giving a temporary respite to' the debtor, to be followed by a revival of the right ti> collect from him; nor can a diminution follow from the statute canceling a part of the debt and leaving in force a part. If there is any conflict in the statute, it must be found in the remaining words “remitted,” “released,” “extinguished,” and which, for the purposes of this case, may be considered as convertible terms prohibiting a cancellation of obligations of the class embraced in the constitution. The statute relied on by the defendants, which limits the right to sue within two years after the maturity of the demand, does not operate to remit, release, or extinguish the obligation. With respect to personal actions for the recovery of debt, statutes of limitation aré not statutes of release or liquidation; they affect the remedy, and not the right. *(Guiterman*v. *Wishon,*21 Mont. 461, 54 Pac. 566; Cooley, Const. Lim. p. 441; 19 Am. & Eng. Enc. Law (2d Ed), p.. 141, and cases cited.)

While plaintiff’s right to- proceed by action is lost by delay, the debt is not extinguished, and the officers authorized so to do may pursue the other remedies provided by law and enforce collection. The laws of this state provide a summary method of seizure and sale of personal property and sale of realty for enforcing payment cf taxes, and also authorize the bringing of a common-law action for the recovery of. a personal judgment against the delinquent taxpayer. Neither of these remedies is dependent on the other for its existence or efficiency. The proceeding by action is a remedy in addition only toi the others named; but for ihe statute creating it, the remedy would not exist. The lawmaking power, having authority to prescribe or withhold altogether a particular remedy, may, in its enactment, invest it with such restrictions as will, in its judgment, *523best subserve tbe public good. Were there no statute authorizing the bringing of an action to collect a tax debt, and the legislature, in its wisdom, deemed it expedient to make provision for such a remedy, could it be reasonably contended that in the enactment of such a law the constitutional provision relied on by the plaintiff would stand in the way of a .proviso that the action should be brought within a specified time, else the right to sue be denied? Or would the power of the legislature be questioned to repeal altogether the existing right to proceed by action, leaving the remedies of distraint and sale to be pursued by the collecting officers ?

' The power to sue for delinquent taxes existed at the adoption of the constitution, authority therefor being found in Section 9 of the Act of the Sixteenth legislative assembly of the territory, approved March 14-, 1889, p. 225, and likewise1, at the same time, the statute limiting the period within which such actions might be brought was in force. If it had been the intention of the framers of the constitution to exempt the state from the operation of statutes of limitations, it would have been an -easy matter toi incorporate a clame to that effect in the instrument.

More than two years having elapsed between the maturity of each of the claims sued on and the commencement of' the actions, the lower court properly sustained the motion of the defendants for a nonsuit. The judgment is therefore affirmed.

*Affirmed.*

MR. Oihee Justice BraNtly:

I concur.

Mr. Justice Pigott:

I concur.

Mr. Justice MilburN, having been of counsel in other undetermined causes presenting the same question here involved, does not participate in the foregoing opinion.