The Anaconda standard., 1896-04-07

are sometimes used Unfortunately
even In Instruments of the gravest inn
portance and dignity. But the fact is
that all taxes are levied upon persons.
and not upon property. 1t is the per-
son that Is taxed or licensed. In case
Of taxation, strictly speaking. the prop
erty which the person owns Is used TO
determine the amount of the tax which
he shall pay: but 1t is the person who.
after all. pays the tax, and not the
property The person is liable and the
property, in addition to being the
means Of determining what the person
shall pay, is also a security for its pay
ment. Upon this subject Judge Grover
OF New York. said in Rundell VS..
Lakey:
IL. therefore being true that IL is the
person that is taxed. there seems to be
no particular significance in the use OF
the two words inhabitants" and prop
erty" in section 4, article XII. constitu-
ton. While these two words are used
the subject matter is the same. And II
the section refers. as We have endeavor-
ed to show that IL does. to taxation Of
property. IL was not important that the
section use the words Inhabitants" as
well as property; for the result is the
same, and the taxation referred to meant
a property tax. that is to say. a tax upon
person levied upon the basis of the
property owned by him.
Another argument in favor of the view
that IL was the intention of the constitu-
tion to commit the subject OF license
taxes to the legislature. and not to the
subordinate municipalities. may perhaps
be found in the fact of legislative con-
struction. Ever since the adoption of the
constitution the legislature. either by al
lowing old laws to remain upon the stat
ute book. or by enacting new ones. has
recognized the principle that the subject
OF license taxes is for the legislature. The
business of the state has been conducted
upon this principle during its whole his
tory. We mention this matter not as Of
great importance, but as entitled to some
slight consideration. AS noted by Judge
Cooley in the citations from eminent Jur-
lists. given in the earlier part OF this opin-
ion, IL is not upon slight or doubtful con-
siderations that a court will declare that
the legislature has disobeyed the consti-
tuition.
Another matter of slight Importance,
but tending in the same direction. is the
fact that this license system has been in
this court several times, and while the
question of its constitutionallty has never
been raised i'm any way. three decisions
have been made which recognized II as
a portion of the body of the state
law. viz; Barden VS.. Montana club, 10
Mont. $50; state VS.. Raymond. ~ Mont.
226. and state VS.. owsley. AZ Pac. l05. All
of those cases were presented by very
able counsel and any one of them could
have been determined upon the alleged
unconstitutionality of the license tax law
IL the question had been raised We do
not, however, present this matter as one
of any particular weight. for Il is not en-
titled to such.
There are few other matters which
have been mentioned as reasons for sus-
tanning the demurrer to this complaint.
But little has been made OF them by
counsel, and we do not think even the
respondent regarded them as important.
We think the additional points so made
are not well taken. but will not discuss
them. The great question In the case
and that upon which both counsel rested
their whole contention. is the constitu-
tional matter which we have decided.
That matter, after mature deiberation,
we consider clear: furthermore. we con-
slider 1t absolutely clear that the uncon-
stitutionality OF the law I'm question is not
so apparent as to justify this court I'm
declaring the license law void
The judgment OF the district court is re-
versed. and the case is remanded with
directions to overrule the demurrer and
proceed with the case.
William II. Dewitt,
Associate Justice.
We concur: w. Y. Pemberton.
Chief Justice.
William II. Hunt.
Associate Justice.