The Anaconda standard., 1896-04-07


the use of the words assess" levy
and rate" as to the one subject. and
impose" as to the others. is signifi-
cant. Such words seem TO express an
intent that section should refer to
taxation strictly and not to licenses. In
any event. IL Is by no means clear to US
that the intent OF section was TO re-
fer to licenses; and IL the intent is not
clear, we cannot put such construction
upon II as will nullify the law under
consideration. Cooley. above quoted.)
Great Importance is attached by the
defendant to the case OF the People VS..
Martin, so Cal 153 and that case is
claimed by him to be applicable to the
question now before us. The section
of the constitution of California which
10 Is urged Is practically the same as
our section 4. article 12 is section IL. ar
ticle IL; IL reads as fallows:
Sec. II. The legislat ure shall have
no power to impose taxes upon coun-
ties, cities. towns, or other public or
municipal corporations, or upon the in
habitants or property thereof. for
county. city, town. or other municipal
purposes, but may. by general laws,
vest in the corporate authorities there
of the power TO assess and collect taxes
for such purposes"
The case of the People VS.. Martin was
an action to recover a license tax by
reason of the defendant carrying on
the business of selling goods. 1t was
brought under section 1860, political
code of California, which was a portion
OF the license law enacted by the leg
islature OF California before the adop-
ton of the present constitution OF that
state. The California court held that
said license law was unconstitutional.
by reason of section IL, article IL. con-
stitution. Justice Ross, in delivering
the opinion. said:
The important question in this case
Is. whether or not the word taxes as
used In this section OF the constitution
include license taxes; for, IL IL does,
the provisions OF the Political Code i'm
posing and providing for the collection
of the license tax here I'm question. are
clearly inconsistent with this section
Of the constitution, and therefore in
operative by virtue of Section l of
Article XXI. of the same instrument.
THAT the license fees imposed by the
provisions of the Political Code were
imposed mainly, IL not solely, for the
purposes of revenue. does not admit OF
doubt: and where that is the case. they
are. In effect, taxes. Cooley on Taxa
tion, pages 1867; 2 Dillon on Min. Corp
Sec. 1861 Indeed the statute itself
designates the charge as a license tax
political Code. Sec. 2359)
but are they taxes within the
meaning of Section IL of Article XI. of
the constitution? We are of the opin-
ion that they are. 1t is clear that that
section is not limited to taxes upon
property; for by its express language
the legislature Is prohibited from i'm
posing taxes upon the inhabitants of
counties, cities. towns, or other public
or municipal corporations, as well as
upon their property. for city, county.
town, or other municipal purposes. The
g..a. 1.t -
ty of Santa Cruz, engaged in the busi-
ness of selling goods, wares and mer-
chandise. The tax imposed upon him.
and which IL is proposed to collect, was
undoubtedly imposed for county pur-
poses; for. as already observed, the
statute authorizing II, required the tax
when collected TO be paid into the coun-
ty treasury for the use of the county
general fund. The power to impose
such taxes for such purposes. in our
opinion, no longer remains with the
legislature; but the constitution ex-
pressly gives IL the power. by general
laws, to vest in the corporate authori-
ties of the counties. cities. towns. or
other public or municipal corporations,
the power to assess and collect taxes
for those purposes"
But the important distinction be-
tween the California constitution and
ours, and the California decision and
that which we intend to make, is that
there is wholly absent from the Cali
fornia constitution a provision like the
last sentence in Section / Article XII.
viz: 'The legislative assembly may
also impose a license tax, both upon
persons and upon corporations doing
business i'm the state" This sentence
we have endeavored to construe above:
and the construction which we place
upon IL, and the fact of its absence
from the California constitution, rem
der. in our opinion, the California de-
cision inapplicable. Further than that.
the California decision was not thor
oughly considered. and was delivered
by a divided court. The California
constitution upon the subject OF reve-
nue. made no such distinctions between
the words Impose" levy" assess"
and rate" as we find TO be clearly
made in the constitution of Montana.
1t did not. as does ours. specially ap-
ply the one word to license taxes. and
use the other words in referring to tax
alton strictly speaking. IL cannot be
argued that the prohibifory section In
our constitution Is borrowed from Cal
ifornia, because. by comparing the Ian
guage of the two. IL is seen that they
are different. (See the two sections
above quoted.)
The California prohibtiory section
uses the WOf0 InpoHes ouiH uAfs tht
word levy" But the great distinction
between the two constitutions and the
question of prohibition as contained in
them, Is in that last sentence of Sec
tion / of our Article XII, which we
have heretofore fully discussed.
Furthermore. much is made by the
defendant Of the use of the word in
habitants'' I'm our Section 4. He argues
that. when the section says. shall not
the hahifanf4 n
property" the word inhabitants
means persons" The same word is
used in the California court. and the
decision of People VS.. Martin turns
largely upon that word. (See citations
from that case. supra) Defendants
contention is that the word '-inhabit-
ants" means persons" as distinguished
from property. and that section con-
tains both words, viz. Inhabitants