Hilger v. Moore ( 1919 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

At 12 o’clock noon on the first Monday of March of this year, plaintiff owned personal property subject to taxation in Lewis and Clark County, but owned no real estate in that county. His property was duly assessed at $1,000, its full cash value, and upon this valuation the taxes were computed, amounting to $35.05, and the county treasurer thereupon demanded payment. Plaintiff tendered $7.01, and,upon refusal of his tender commenced this action to restrain the treasurer from seizing and selling the property.

The controversy involves the validity of House Bill No. 30 (Laws 1919, Chapter 51) entitled: “An Act providing for the classification of taxable property in the state for the purpose of taxation, and providing the percentage of the true and full value of each class which shall be taken and used as the basis for the imposition of the tax thereon.”

Section 1 distributes all taxable property into seven distinct classes; the kind of property constituting each of the first six classes being specifically enumerated. The seventh class includes all property not assigned to some one of the preceding classes.

Section 2 provides: “As a basis for the imposition of taxes upon the different classes of property above specified, a percentage of the true and full value of the property of each class shall be taken as follows:

“ (a) Class one: 100 per cent of its true and full value.

“ (b) Class two: 20 per cent of its true and full value.

“ (c) Class three: 33% per cent of its true and full value.

“(d) Class four: 30 per cent of its true and full value.

“ (e) Class five: 7 per cent of its true and full value.

“ (f) Class six: 40 per cent of its true and full value.

“(g) Class seven: 40 per cent of its true and full value.”

The property involved in this litigation belongs to class two, and it is conceded that if House Bill No. 30 is a valid legislative enactment, the plaintiff tendered the amount of tax due; if it is not, the amount demanded by the treasurer is the amount to be paid.

1. It is insisted by the treasurer that House Bill No. 30 is [1] unconstitutional, in that the legislative assembly was without authority to classify property for the purpose of taxation.

The legislative department of this state possesses all the [2] powers of law-making which inhere in any independent sovereignty, except only in so far as those powers are curtailed by the Constitution of the state, or the supreme law of the land. (In re Pomeroy, 51 Mont. 119, 151 Pac. 333.) To determine, therefore, whether a statute is valid, it is not necessary to seek the source of the power to enact it. The authority is inherent if the subject matter is one with reference to which any legislation may be enacted, and the burden of showing that the authority has been withdrawn from the lawmakers is upon the party who questions the validity of the Act. As said by this court: “The authority of the legislature, otherwise plenary, will not be, held to be circumscribed by mere implication. He who seeks to limit the power of the lawmakers must be able to point out the particular provision of the Constitution which contains the limitation expressed in no uncertain terms.” (State ex rel. Evans v. Stewart, 53 Mont. 18, 161 Pac. 309.)

Taxation for the purpose of raising public revenue is a subject [3] peculiarly and inherently of legislative cognizance (1 Cooley on Taxation, 3d ed., p. 7), and our legislature was therefore within .its authority in enacting House Bill No. 30, unless the authority to do so is denied to it by the state Constitution or by the Constitution of the United States. The basic contention of the attorney general, for the treasurer, is that the classification of property by the statute in question violates the principle of uniformity of taxation declared by our state Constitution. Throughout all revenue legislation by the several states there has been recognized some rule of uniformity. Fifty years ago, and prior thereto, the rule was generally understood to require nothing less than this: If A and B each owned taxable property of the same value within the same taxing' district, each should pay thereon precisely the same amount of tax, without reference to the character of the property. The rule as thus understood is designated the “uniformity rule of general property taxation,” or “uniform ad valorem system.” By express declaration or by necessary intendment that rule was written into the Constitution of nearly every state. The Constitution of Nebraska declares: “The legislature shall provide such revenue as may be needful, by levying a tax by valuation, so that every'person and corporation shall pay a tax in proportion to the value of his, her or its property and franchises.” (Nebraska Const., Art. IX, sec. 1.) This is a reasonably clear statement in express terms of the rule of uniformity 'of taxation as it was understood quite generally in 1875. A similar provision is found in the Constitution of Idaho (Article VII, sec. 2); Illinois (Article IX, sec. 1); South Dakota (Article XI, sec. 2) ; Utah (Article XIII, sec. 3); and Washington (Article VII, see. 2). It cannot be open to argument that ,a provision of this character does not admit of classification of property for the purpose of taxation. The meaning is too plain to admit of doubt.

The Constitution of Wisconsin declares, “The rule of taxation shall be uniform” (Wisconsin Constitution, Article VIII, sec. 1), and the same principle, though expressed differently, is to be found in the Constitution of each of some thirty other states. Whenever the question has arisen in any of these jurisdictions, it has been held that the language of the Constitution under review, by necessary implication, evidenced an intention to maintain the rule of uniformity as expressed above. We find no fault with the conclusions reached in the cases so holding.

The rule never prevailed in Colorado or Pennsylvania, and does not prevail in several states by reason of recent constitutional amendments. Does it prevail in Montana ? It is the contention of the attorney general that it does, and that it is declared in Article XII, section 1, of our Constitution, in the following language: “The necessary revenue for the support and maintenance of the state shall be provided by the legislative assembly, which shall levy a uniform rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, except that specifically provided for in this article. The legislative assembly may also impose a license tax, both upon persons and upon corporations doing business in the state. ’ ’

Great stress is laid upon the fact that the legislature is [4] commanded to levy a uniform rate of assessment and taxation. Counsel, however, distort the meaning of the term “assessment.” It is said to comprehend the entire process by which taxes are secured — from the inception to the conclusion. If the term has such broad significance, then it includes the entire process of taxation, and the word “taxation,” used in conjunction with it, is meaningless. But this court is not authorized to disregard the term “taxation,” or to assume that it was used without purpose.

When our Constitution was prepared and ratified, the term “assessment” and the term “taxation” each had a definite, well-understood meaning. Assessment was the process by which persons subject to taxation were listed, their property described, and its value ascertained and stated. Taxation consisted in determining the rate of the levy and imposing it. Speaking generally, the assessment was made by the assessor, subject to review by the board of equalization. The rate of taxation was fixed and imposed by the legislature for state purposes, by the county commissioners for county purposes, by the city council for city purposes, etc. This has been the history of our revenue legislation from the time Montana was organized as a territory, and the framers of our Constitution understood these words and 'used them accordingly. It may be conceded that they apparently chose to employ inept language, rather than multiply words, for the use of “levy” and “rate,” as applied to assessment, is hardly appropriate; but when we consider the entire first sentence of section 1 with other provisions in pari materia, the meaning is reasonably clear: The mode of assessment — the rule for ascertaining values — must be uniform, to the end that a just-valuation of all taxable property may be secured. This is the rule— the exceptions will be noticed later.

The Act in question has nothing whatever to do with either the assessment of property or the determination of the rate of the tax levy. It is not directed to the assessor. His duties are defined by the statutes in force when this measure was enacted.

The mandate of the Constitution that the legislature • shall prescribe such regulations as shall secure a just valuation for taxation of all taxable property was complied with by the first state legislature which passed any laws after the Constitution was adopted. An elaborate revenue measure was enacted, comprising 206 sections, which provided, among other things, for the assessment of all taxable property at its full cash value, for the proper methods of ascertaining such value, and for the review of the assessments and the equalization thereof. (Laws 1891, p. 73.) Those provisions, with slight amendments, have been brought forward and constitute the law upon the subject at the present time. (Secs. 2498-2745, Rev. Codes.) The provisions of section 5 of the Act of 1891 have never been changed. “All taxable property must be assessed at its full cash value.” (Sec. 2502, Rev. Codes.) This is the command of the statute to-day directed to the assessor and to the boards of equalization.

But it is contended that House Bill No. 30 violates the principle of a uniform rate of taxation declared in section 1. If that section be construed independently of any other provision, the argument of counsel would be persuasive, if not convincing; [5] but the division of our Constitution into chapters and sections is a mere matter of convenience for the purpose of reference, and is not of significance in applying the rules of construetion and interpretation. Every provision dealing with the same [6] subject matter must be considered in determining the meaning of any expression whose meaning is in doubt. (Cooley’s Constitutional Limitations, 91.)

Section 11, Article XII, provides: £ £ Taxes shall be levied and collected by general laws and for public purposes only. They shall be uniform on the same class of subjects within the terri-' torial limits of the authority levying the tax.” But counsel for the treasurer would have us construe section 1 independently of section 11, upon the theory that each deals with a different subject — section 1 with state taxes exclusively, and section 11 with local taxes exclusively. Indeed, counsel insist that sections 1, 3, 7, 9, 10 and 17 were intended to provide, and do provide, a “method for raising revenue for the support and maintenance of the state,” while sections 4, 5 and 11 provide a complete method of taxation for county, city, town and school district purposes. The argument is founded upon an entire misconception of the purpose of Article XII.

Our state Constitution, unlike the Constitution of the United [7] States, is not a grant of power or authority, but is distinctively a limitation imposed by the people upon the several departments of state government. (McClintock v. City of Great Falls, 53 Mont. 221, 163 Pac. 99.) Article XII does not assume to create or define any system of assessment or taxation. Eliminate it altogether from the Constitution, and the legislature could do everything it can now do, and other things besides, and it was for the express purpose of limiting the lawmakers in legislating upon either of these subjects, that Article XII was inserted. (State v. Camp Sing, 18 Mont. 128, 56 Am. St. Rep. 551, 32 L. R. A. 635, 44 Pac. 516.) Its limitations are not always expressed in the negative form — thou shalt not — but they are present nevertheless. The legislature is prohibited altogether from subjecting to taxation any of the public property mentioned in section 2. It is prohibited from applying the ordinary rules of assessment to the mining property mentioned in section 3. It is forbidden to levy taxes upon the inhabitants or property of a county or municipal corporation for local purposes. (See. 4.) A limitation is set upon the assessed valuation of property for city, town and school purposes by section 5. Section 6 prohibits the legislature from releasing certain property from the payment of its proportionate share of state taxes. Section 7 forbids the legislature from exempting corporations and corporate property from taxation. Section 9 sets a limit upon the rate of taxation for state purposes. Section 10 prohibits public money being withdrawn from the state treasury except pursuant to specific appropriations made by law. These examples illustrate sufficiently the purpose of Article XII.

Nowhere is the legislature prohibited from classifying property for the purpose of taxation; but, on the contrary, section 11 contains a distinct recognition of the right to do so. Counsel argue, however, that section 11 goes no further than to recognize the right of the legislature to classify subjects of taxation, and does not refer to the classification of property.. Counsel concede that his argument runs counter to the decisions of this court in State ex rel. Sam Toi v. French, 17 Mont. 54, 30 L. R. A. 415, 41 Pac. 1078, and State v. Camp Sing, above. In, the former, Justice De Witt, speaking for the court, said: “We are of the opinion that the first sentence of section 1, Article XII, and the whole of section 41, Article XII, are upon the same subject, and must be read togethér, and that they refer to taxation, and the equality and uniformity thereof.” Since the first sentence of section 1 deals exclusively with property taxation (Northwestern Mut. Life Ins. Co. v. Lewis and Clark County, 28 Mont. 484, 98 Am. St. Rep. 572, 72 Pac. 982), it would seem that by necessary implication the court held that section 11 does likewise. In the Camp Sing Case the court reviewed at great length the several provisions of Article XII, explained their purpose, and reached the conclusion, in effect, that all the restrictions imposed upon the legislature by that Article are restrictions with reference to property taxation. We are asked now to overrule these decisions, but in our judgment the correctness of each of them is beyond question.

The framers of our Constitution did not always use terms in their strict, technical sense; rather they employed them generally, according to their popular significance. Speaking strictly, there is but one subject of taxation — persons, natural or artificial. [8] All taxes are levied against the person, not against property. It is the owner who is taxed because of his ownership, and his property but serves as the basis for computing the measure of his liability and as security for the discharge of the lien which [9] the tax imposes. (State v. Camp Sing, above.) The term, “subject of taxation” is given a broad or restricted meaning, according to the circumstances of the particular case. In its comprehensive sense it denotes the particular thing which measures the amount of the tax, and as such includes every kind of property, real, personal and mixed, not exempt, as well as every other item upon which a rate of taxation ,may be lawfully imposed. That the framers of our Constitution did not employ the term in its technical sense is perfectly apparent. Neither did they employ it in its broadest sense. The right to take property by inheritance is a subject of taxation according to all authorities, and if the term “subjects” was used in section 11 in its comprehensive sense, then an inheritance tax would have to conform to the uniformity clause; but this court has held that it does not. (Touhy’s Estate, 35 Mont. 431, 90 Pac. 170.)

At the time our Constitution was prepared and adopted, property and licenses were the only sources of tax revenue in Montana. The so-called poor poll and road poll taxes were then imposed, but neither is a tax within the meaning of that term as employed in the Constitution. (Pohl v. Chicago, M. & St. P. Ry. Co., 52 Mont. 572, 160 Pac. 515.) Licenses are excepted from the uniformity provision, so that it is practically certain that the term subjects in section 11 was used in its then popular sense to denote the different kinds of property liable to taxation.

The definition of “property” in section 17 of this same Article [10] was intended as a limitation upon the power of the legislature to extend, by indirection, the exemptions authorized or commanded by section 2. It cannot have any other purpose.

Construing the first sentence of section 1 with section 11 the [11] meaning is reasonably clear: The taxes levied shall be uniform upon the same class of property within the same taxing district. The entire state is one district for the purpose of raising state taxes. Every county is a separate district for county taxes, every city for city taxes, etc. Or, stating the principle of sections 1 and 11 in different form, the mandatory injunction to the legislature is that it shall prescribe such uniform mode of assessment as shall secure a just valuation o£ all taxable property, that all taxes shall be levied and collected by general laws and for public purposes only, and that they shall be uniform upon the same class of property within the territorial limits of the authority levying the tax. This is the rule of uniformity declared by our Constitution, if we are able to determine the intention of its framers aright.

As indicating further that it was not the purpose of our Constitution to prohibit the legislature from classifying property for the purpose of taxation, a reference to section 15, Article XII, is pertinent. That section defines the duties of the state board of t equalization as follows: “The state board of equalization may adjust and equalize the valuation of taxable property among the several counties and the different classes of taxable property in the same and in the several counties and between individual taxpayers; supervise and review the acts of county assessors and county boards of equalization; change, increase or decrease valuations made by county assessors or equalized by county boards of equalization and has such authority and may do all things necessary to secure a fair, just and equitable valuation of taxable property among the counties and between the different classes of property and individuals.” Prior to the amendment adopted in 1916, section 15 defined those duties to be “to adjust and equalize the valuation of the taxable property among the several counties of the state.” Counsel now urge upon us that the only purpose of the amendment was to obviate the decisions of this court in State ex rel. Wallace v. State Board, 18 Mont. 473, 46 Pac. 266, and State ex rel. Board v. Fortune, 24 Mont. 154, 60 Pac. 1086; but in each ease tbe only question decided was that tbe state board could not increase the total assessed valuation of property in tbe state as returned by tbe several counties. Tbe amendment confers tbe power wbicb was formerly denied to tbe board, but it goes much further and clothes tbe board with authority to adjust and equalize tbe valuation of tbe different classes of taxable property in any county, and to do all things necessary to secure a fair, just, and equitable valuation of taxable property among tbe counties and between tbe different classes of property. We cannot restrict tbe meaning of this amendment as we are requested to do.

That the ironclad rule of uniformity, as first ¡stated above, [12] never prevailed in this state, a reference to other provisions of Article XII will demonstrate. Section 3 establishes an artificial and arbitrary rule for tbe assessment and taxation of certain mining property without reference to its actual cash value, while section 9 recognizes tbe right of tbe legislature to provide for tbe imposition of a tax upon livestock, in addition to that borne by other property.

There is further slight evidence of a deliberate purpose to exclude from our Constitution tbe old “uniform ad valorem system.” Section 1, Article XII, of tbe Constitution, proposed in 1884, was a literal copy of tbe section of tbe Nebraska Constitution, ante, with the exception that tbe last words “and franchises” were omitted. It declared tbe uniform rule of general property taxation in language too clear to admit of doubt. When tbe Constitution of 1889 was written, many of tbe provisions of tbe proposed 1884 Constitution were copied verbatim, but in preparing section 1, Article XII, the old draft was abandoned and for it was substituted tbe section in tbe language quoted above. Many of tbe members of tbe first convention were also members of tbe second. Tbe same member who presided over the committee wbicb framed Article XII of tbe first proposed Constitution was likewise chairman of tbe committee wbicb drafted Article XII of our present Constitution. This is a matter of slight consequence in itself, but it tends to indicate a purpose to modify the rule of uniformity as it had been understood quite generally theretofore.

Decided eases almost without number have been pressed upon our attention, but they are practically without value in this instance. They construe constitutional provisions altogether unlike our own. Indeed, no other state in the Union has provisions in its Constitution similar to those of ours enumerated above. Some of these may be found in the Constitution of one state; some in another; some of them cannot be found in the Constitution of any other state. A review of these authorities would be a work of supererogation.

The theory of classification of property for the purpose of taxation is not new. In an address before the meeting of the International Tax Association in 1909, Charles J. Bullock, Professor of Economics, Harvard University, directed attention to <the fact that immediately following the Civil War discontent with the workings of the uniform ad valorem system became general, and that the system had long since been abandoned in most European countries for a system of classification.

In 1869 the supreme court of Pennsylvania, in upholding the right of the legislature to classify property for taxation' said: “To hold otherwise would logically require that all the subjects of taxation, as well persons as things, should be assessed, and an equal rate laid ad valorem. Practically no more unequal system could be contrived.” (Durach’s Appeal, 62 Pa. 491, 494.)

In 1885 the supreme court of the United States, in referring to the Kentucky Constitution of 1850, said: “But there is nothing in the Constitution of Kentucky that requires taxes to be levied by a uniform method upon all descriptions of property. The whole matter is left to the discretion of the legislative power, and there is nothing to forbid the classification of property for purposes of taxation and the valuation of different classes by different methods. The rule of equality, in respect ,to the subject, only requires the same means and methods 'to be applied impartially to all the constituents of each class, so that the law shall operate equally and uniformly upon all persons in similar circumstances.” (Kentucky Railroad Cases, 115 U. S. 321, 337, 29 L. Ed. 414, 6 Sup. Ct. Rep. 57, 63. )

We cannot say whether these expressions of the courts or the prevailing discontent with the “uniform ad valorem, system” influenced the framers of our Constitution. It is sufficient for us to know that the Article on Bevenue and Taxation apparently omits any restriction upon the classification of property for the purpose of taxation.

With the merits of these respective systems we are not concerned in determining the validity of a statute, but in passing we direct attention to the following from the opinion of the supreme court of the United States: “This court has repeatedly laid down the doctrine that diversity of taxation, both with respect to the amount imposed and the various species of property selected either for bearing its burdens or for being exempt from them, is not inconsistent with a perfect uniformity and equality of taxation in the proper sense of -those terms; and that a system which imposes the same tax upon every species of property, irrespective of its nature or condition or class, will be destructive of the principle of uniformity and equality in taxation and of a just adaptation of property to its burdens.” (Pacific Express Co. v. Seibert, 142 U. S. 339, 351, 35 L. Ed. 1035, 12 Sup. Ct. Rep. 250, 253.)

In theory, the doctrine of classification seeks to remove the temptation to dishonesty in returning property for assessment; to shift the burden of taxes from property, as such, to productivity, or, in other words, to impose the burdens of government upon property in proportion to its use, its productivity, its utility,'its general setting in the economic organization of society, so that everyone will be called upon to contribute according to his ability to bear the burdens, or as nearly so as may be, and to relieve administrative officers from the apparent necessity of continuing the legal fiction of full valuation in the face of contrary facts. Whether in practice it will realize the hopes of its advocates, experience alone will demonstrate.

2. It is further contended that, even though our state Constitution does not forbid a proper classification of property for taxation, the classification provided by House Bill No. 30 is so far arbitrary and unreasonable as to bring the Act within the condemnation of the Fourteenth Amendment to the Constitution of [13] the United States. The inhibition of that amendment, that no state shall deprive any person within its jurisdiction of the equal protection of the law, was designed to prevent any person, or class of persons, from being singled out as a special subject for discrimination and hostile legislation. (Pembina & Min. Co. v. Pennsylvania, 125 U. S. 181, 188, 31 L. Ed. 650, 8 [14] Sup. Ct. Rep. 737.) It is to be presumed, however, that in providing for its public revenues, this state had no favors to bestow, and did not intend arbitrarily to deprive anyone of his rights. Special privileges are always obnoxious, and discriminations against any person or class still more so, and no presumption will be indulged that the legislature intended to create either.

While it is possible to lay the burdens of taxation so unevenly as to deprive some taxpayers of the equal protection of the [15] law, the mere fact that property is classified for the purpose of taxation does not bring the statute classifying it within the inhibition of the Fourteenth Amendment. As early as 1873 the supreme court of the United States referred to this question and said: “Absolute equality in taxation can never be attained. That system is the best which comes the nearest to it. The same rules cannot be applied to the listing and valuation of all kinds; of property. Railroads, banks, partnerships, manufacturing associations, telegraph companies and each one of the numerous other agencies of business which the inventions of the age are constantly bringing into existence, require different machinery for the purposes of their taxation. The object should be to place the burden so that it will bear as nearly as possible equally upon all. For this purpose different systems, adjusted with reference to the valuation of different kinds of -.property, are adopted. The courts permit this.” (Tappan v. Merchants’ National Bank, 19 Wall. 490, 504, 22 L. Ed. 189.)

Later, in Michigan Central R. Co. v. Powers, 201 U. S. 245, 293, 50 L. Ed. 744, 26 Sup. Ct. Rep. 459, 462, the court quoted with approval from the decision of the trial court in the same case the following: “There can at this time be no question, after the frequent and uniform expressions of the federal supreme court, that it was not designed by the Fourteenth Amendment to the Constitution to prevent a state from changing its system of taxation in all proper and reasonable ways, nor to compel the states to adopt an ironclad rule of equality to prevent the classification of property for purposes of taxation, or the imposition of different rates upon different classes. It is enough that there is no discrimination in favor of one as against another of the same class, and the method for the assessment and collection of the tax is not inconsistent with natural justice.”

Finally, in 1918, the court again reiterated the principle in the following terms: “That the state is not, because of the Fourteenth Amendment, required to tax all property alike, and may classify the subjects selected for taxation, is too well established to require citation of the many cases in this court which have so held. The classification may not be arbitrary and must rest upon real differences — subject to these qualifications the state has a wide discretion.” (Northwestern Life Ins. Co. v. Wisconsin, 247 U. S. 132, 139, 62 L. Ed. 1025, 38 Sup. Ct. Rep. 444, 446.)

From the very nature of the subject, there cannot be anything more than general rules for governing classification. Every state must adapt its laws to its own peculiar circumstances and [16] conditions, and the legislature is presumed to have exercised a reasonable discretion in making this classification. (Quong Wing v. Kirkendall, 39 Mont. 64, 101 Pac. 250.)

It is not essential to a valid classification that it depends upon [17] scientific or marked differences in the subjects classified. It suffices if it is practical, and it is not reviewable unless palpably arbitrary. (Orient Ins. Co. v. Daggs, 172 U. S. 557, 562, 43 L. Ed. 552, 19 Sup. Ct. Rep. 281; Hill v. Rae, 52 Mont. 378, Ann. Cas. 1917E, 210, L. R. A. 1917A, 495, 158 Pac. 829.)

In the Act under consideration, class 1 includes the net proceeds of mines; class 2, the property generally exempt from execution, with other property of the same general character; class 3, livestock, agricultural products and merchandise; class 4, lands1 and improvements, machinery, fixtures and supplies; class 5, moneys and credits; class 6, shares of stock in banking corporations ; and class 7, all other property.

The fact that the mining industry is apparently favored by the provisions of section 3, Article XII, of the Constitution, would seem to furnish justification for the. imposition of taxes upon the higher percentage of the value of the net proceeds of mines. With reference to the other classes, it is sufficient to say that the difference in the nature and character of the property, its productivity or want of it, its utility, the difficulty of reaching some of it under the old system, the fact that the enforcement of our former tax laws operated’ as a practical confiscation of the entire income from some species ■ of property, as illustrated in the case of Cruse v. Fischl, 55 Mont. 258, 175 Pac. 878—these and other reasons equally cogent must have influenced the legislature in making the classification indicated above.

The validity of this statute does not depend upon an affirmative [18] answer to the inquiry: Is the plan of classification perfect? Neither is it of consequence that some other body might devise a better scheme of taxation. In Travelers’ Ins. Co. v. Connecticut, 185 U. S. 364, 371, 46 L. Ed. 949, 22 Sup. Ct. Rep. 673, 676, the court said: “But, further, the validity of this legislation does not depend on the question whether the courts may see some other form of assessment and taxation which apparently would result in greater equality of burden. The courts are not authorized to substitute their views for those of the legislature. We can only consider the legislation that has been had, and determine whether or no its necessary operation results in an unjust discrimination between the parties charged with its burdens. It is enough that the state has secured a reasonably fair distribution of burdens, and that no intentional discrimination has been made against nonresidents.” Other illustrative cases by the supreme court of the United States upholding classification statutes will be found cited in Hill v. Rae, above.

Primarily, the question of the reasonableness of the classification ivas for the legislature to determine, or in other words, the classification is presumed to be reasonable. (Quong Wing v. [19] Kirkendall, above.) We are satisfied that the statute does not infringe upon the guaranty contained in the Fourteenth Amendment.

In conclusion we may say that, from the similarity of the language employed, it is reasonably certain that sections 1 and 11 of Article XII of our Constitution were borrowed from other states. As no other state Constitution contains both sections, it follows that section 1 was taken from a Constitution which did not contain provisions similar to those in section 11, and likewise that section 11 was borrowed from a Constitution which did not contain a section similar to our section 1. The two provisions are not altogether harmonious, and the construction of them intended by the framers, is not very clear. If we have correctly interpreted their meaning, the validity of House Bill No- 30 is placed beyond the range of controversy. In reaching our conclusion, however, it is not necessary for us to say that we are entirely free from doubt. As said by this court in State ex rel. Campbell v. Stewart, 54 Mont. 504, Ann. Cas. 1918D, 1101, 171 Pac. 755: “In the case of a statute assailed as unconstitutional, [20] we stand committed to the rule that no such enactment will be pronounced invalid unless its nullity is made manifest beyond a reasonable doubt.” We are not convinced of the invalidity of House Bill No. 30; on the contrary, it appears to us to be a valid legislative enactment.

It is ordered that an injunction, mandatory and prohibitory in form, issue herein forthwith, first, commanding >■the defendant treasurer to accept the tender made by plaintiff, and, second, restraining and enjoining defendant from seizing or selling plaintiff’s property in satisfaction of the excess of $28.04, claimed by defendant to be due as taxes.

Motion for rehearing denied September 26, 1919. Mr. Chief Justice Brantly concurs.