The Anaconda standard., 1896-04-07

this morning handed down decision
unanimously sustaining the constitu-
tionality of the license law. The opin-
ion is by Judge Dewitt and the fol-
lowing is its full text excepting only
two or three quotations from other
authorities:
No. S99-State of Montana, in the su-
preme court, March term, 1896: The
state of Montana. plaintiff and appel
liant, VS.. Camp Sing, defendant and re-
spondent. Submitted: March 81. 1896;
decided April 6. 1896
Statement of the case by the justice
delivering the opinion:
The state appeals from a judgment
rendered against it upon the sustaining
of defendants demurrer to the COM
plant. The state brought the action to
recover a license fee of $50, alleged to
be due from the defendant for con-
Quoting the laundry business for six
ties, amounting to SIT. The statute un-
der which the state claimed the license
is section 4079 of the political code,
which is as follows: Sec. 4079-Every
male person engaged in the laundry
business, other than the steam laundry
business, must pay a license of $40 per
quarter; provided, that where more
than one person is engaged or employ
ed or kept at work, such male person or
persons shall pay a license of $25 per
quarter, which shall be the license for
one place of business only"
The contention of the defendant upon
the demurrer is that this license law of
the political code is unconstitutional
and void under Article XII of the con-
stitution. The sections of that article
upon which he bases his contention are
Nos. and 4, which are as follows:
Sec. 1T e necessary revenue for
the support and maintenance of the
state shall be provided by the legisla-
tive assembly, which shall levy a uni
form rate of assessment and taxation,
and shall prescribe such regulations as
shall secure a just valuation for taxa
tion of all property, except that special
ly provided for in this article. The leg
islative assembly may also impose IL
cense tax, both upon persons and upon
corporations doing business in the
state.
"Sec. 4-The legislative assembly
shall not levy taxes upon the inhabit-
ants or property in any county, city or
town, or municipal corporation, for
county, town or municipal purposes,
but it may by law vest in the corporate
authorities thereof powers to assess and
collect taxes for such purposes"
This license tax was imposed by the
legislative assembly Sec. 4079, political
code. Under the provisions of Sections
3075 and 1850 of the political code, 20
per cent. of the license tax provided for
is to be retained by the county and 80
per cent. paid over to the state. The
district court held that, as a portion of
this license tax, to-wit: 20 per cent,
went to the county, the law was void,
under Section 4, Article XII of the con-
stitution, in that the legislative assem-
bly, had thus attempted, by Sec. 4O79,
political code, to levy a tax upon the
inhabitants or property in a county
for county purposes. whether this leg
islation upon the question of licenses is
constitutional is the question for deter
mination of the opinion below.
Opinion of the court, by Dewitt, J.
Does Section of Article XII, consti-
tuition, prohibit the legislature from
passing a law such as Sec 4079, politi-
cal code of 1895, imposing a license tax
upon persons and corporations doing
business in the state, when part of the
proceeds of such license tax goes to the
county, and can such license tax be i'm
posed only by the county, which is part
recipient of the funds collected in pur-
suance to such statute? This import
ant question could have been reached
in the case of the state ex rel. Toy VS..
French, Al Pac. Rep, 1918. 1t was with
in our contemplation at the time of
writing that opinion, but the question
was not mentioned or argued by coun-
sci, and was therefore reserved. 1t has
eral of the district courts, and of many
of the most distinguished members of
the bar in the state. The result is that
it has been thoroughly briefed and ar
gued at this time by eminent counsel
on both sides.
We are sensible of current affairs
about us and cannot but be aware that
declaring Section 4079. political code. to
be unconstitutional, is the losing. for
considerable period of time, of an inn
mense revenue; but we are obliged to
close our minds to such considerations.
AS Mr.. Justice Hunt said, in state VS..
Mitchell: 1T were far better at this
time. in the early history of this new
state. that legislative act be declared
invalid than that precedent be set by
which plain provisions of the constitu-
tion be nullified by loose and question
able interpretations of our fundamental
law. State VS.. Tooker. Is Mont, s; 81
Pac., $40" AZ Pac. Rep, 100. See also
state ex rel. T. c. Bank VS.. Gillian. SO
Pac. Rep.
And in this matter before us ii is bet
ter that we suffer all the incon-
veniences of a present loss of revenue
than that we let go of the constitution
for the sake of relief from temporary
distresses. The argument alb incon-
venienti must be excluded from all con-
troll over the decision.
But, on the other hand, we must keep
in mind another rule of constitutional
construction. Judge Cooley, in his con-
stitutional limitations, said, in speaking
of Chief Justice Shaw:
Therefore. with these principles be-
fore US, and deeply sensible of the i'm
portance TO the state of this decision.
we approach its consideration with
the sentiment tha: we must be at least
fairly satisfied of the unconstitutional
ity of the license law. before We so de-
clare it,
The legislature has full power to
enact a license law. unless IL is forbid
den by the constitution. In the case
OF state vs.. French, supra, after stat
ing the common learning as 10 the diff
ference between the constitution Of a
state. and that OF the United States.
we said: "A state legislature is not
acting under enumerated or granted
powers. but rather under inherent pow