The Anaconda standard., 1895-12-22
ONCE MORE THE CODE
This Time the Trouble Is Over the
Sections on License.
1T MAY BE VERY SERIOUS
Judge Speer Heard Test Case
and He Says That the
Law VIII Not
Stand.

sustaining every point raised against IL
and deciding that the legislature had
no authority or power to pass the law
and, further, that whenever a license
was levied for the purpose OF revenue
il was a tax within the meaning OF the
constitution and therefore contrary TO
the provisions of the constitution. The
decision was made orally and was very
brief. The question of the constitution
ality of the law was raised In a civil
action brought by the county treasurer
against Camp Sing. Chinese laundry
man, for a small amount OF license due
under the law. The suit was brought
as a test case. and the Chinamenr e.
tained Attorney Thomas L. Harvey to
fight their case. Mr.. Harvey filed
demurrer to the complaint, attacking
the constitutionality of the law. The
particular provision of the Montana
constitution had been copied from the
constitution of California and license
law enacted by the legislature OF that
state, similar to the law subsequently
adopted by the legislature of Montana,
was declared unconstitutional by the
supreme court of California. Section j
OF Article IL, of the Montana constitu-
ton provides that "the necessary rev.
enue for the support and maintenance
of the state shall be provided by the
legislative assembly, which shall levy
q uniform rate of assessment and tax
alton and shall prescribe such regula-
tions as shall secure just valuation
for taxation of all property. except that
specially provided for in this arti-
Gle. The legislative assembly may
also impose a license tax both upon
persons and upon corporations doing
business in the state" There is no
provision of the constitution of Califor-
L. ufx fIor 20 ha In
quoted. Section of the same article of
the Montana constitution provides:
THE legislative assembly shall not levy
taxes upon the inhabitants or property
in any city. town or municipal corpora
tion for county, town or municipal pur-
poses, but II may by law vest in the
corporate authorities powers to assess
and collect taxes for such purposes"
The corresponding section in the Cali
fornia constitution, upon which the Cal
ifornia license tax law had been de-
clared unconstitutional. reads: "The
legislature shall have no power to i'm
pose taxes upon counties, cities, towns
or other public or municipal corpora
tions. or upon the inhabitants or prop
erty thereof for county, city, town or
other municipal purposes, but may by
general laws vest in the corporate au-
thorities thereof the power to assess
and collect taxes for such purposes"
In spite of the provision of the con-
stitution the state legislature levied
license for county purposes and in the
act provided that 25 per cent. of IL
should be paid to the state. In the ar
guments in the Camp Sing case the
state attempted to make II appear that
a license was not a tax within the
meaning of the constitution. and re-
ferred to the constitutional provision
which says the legislature shall have
the right to impose license tax on
persons and corporations doing busi-
ness in the state for state purposes.
Mr.. Booth, who represented the county
treasurer in the case. contended that
that provision gave the legislature alb
solute power to levy such a license tax
and that the constitution recognizes q
distinction between the words levy"
as applied to a tax and impose" as
referring to license; that the legisla-
ture was beyond question prohibited
from "levying" a tax but that II could
impose" a license tax on persons and
corporations doing business in the state
and that the license is not a tax, but a
regulation.
The decision of the California su-
preme court. on the same constitution
al question. seemed to take the view
that the constitution intended to pro-
vide that each county should govern
itself and in reference to that ques-
ton. said:
''The power to impose such taxes for
such purposes. in our opinion. no long
er remains with the legislature, but
the constitution expressly gives IL the
power by general laws TO vest in the
corporate authorities of counties, cit
les. towns or other public or municipal
corporations. the power to assess and
collect taxes for such purposes. The
taking of the power to impose such
taxes from the legislature and vesting
In he tlAr L.
other of the many evidences to be
found In the new constitution of the
intention to bring matters of a local
concern home to the people"
The special points raised by the de-
murrer in the case against Camp Sing
were. first. can the legislative assem-
bly, of the state levy a tax upon the
Inhabitants or property of any county,
city. town or municipal corporation
for county. town or municipal pur-
poses: second. are the licenses as pro-
vided In the political code taxes within
the meaning of the provisions of Sec
ton I. article IL of the constitution:
third. was IL the intention of the legis-
latiye assembly in fixing the amount
of licenses to provide for the collec-
ton OF licenses for county or other
municipal purposes. or did the legisla-
tive assembly, by enacting the provis-
ions OF the political code referred to,
intend only TO impose a license tax
upon persons and corporations doing
business within the state for state pur-
poses?
Judge Speer. in deciding the case
against the county treasurer, holds
that the legislature cannot levy such a
tax that the license is a tax and that
the legislature intended TO provide for
the collection of licenses for county
and other municipal purposes, which IL
had not the power TO do.
County Attorney Wines took an ex-
ceDtion to the courts decision and an
nounced that he would not file another
complaint against the Chinaman and
that a judgment of dismissal might
be entered in the case, which was
done. Another exception was taken TO
the order of the court and the case
will now be taken to the supreme
court for final determination.
What the effect will be on the collec-
ton OF licenses i'm this county cannot
yet be told. but IL is probable that I'm
view OF the decision many persons Will
refuse TO pay their licenses but the