Pohl v. Chicago, Milwaukee & St. P. Ry. Co.

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment upholding the statute imposing our so-called poll tax. (Rev. Codes, secs. 2692-2714.) The statute was enacted in 1891 (Laws 1891, *575 p. 73), amended slightly in 1893 (Laws 1893, p. 65), and, as thus modified, carried into the compilations of 1895 and 1907. It is assailed upon the ground that it conflicts with the provisions of sections 2 and 9, Article I, of the Constitution of the United States, which declare that direct taxes, if laid, shall be apportioned among the several states according to population, and with section 1 of the Fourteenth Amendment, which forbids any state to deprive a person of life, liberty or property without due process of law.

The first two sections have no application to the states. They [1] are merely limitations upon the power of Congress. (Cooley on Taxation, 2d ed., p. 8; License Tax Cases, 5 Wall. 462, 18 L. Ed. 497 ; Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429 , 39 L. Ed. 759 , 15 Sup. Ct. Rep. 673.)

Assuming for present purposes that the statute under review [2] provides for the imposition of a tax as that term is understood in revenue parlance, it is not subject to the objection that in failing to provide for notice before the tax is levied or collected, it deprives the taxpayer of his property without due process of law. This question was set at rest by the supreme court of the United States in Hogar v. Reclamation District, 111 U. S. 701, 28 L. Ed. 569 , 4 Sup. Ct. Rep. 663, where it is said: “Of the different kinds of taxes which the state may impose, there is a vast number of which, from their nature, no notice can be given to the taxpayer, nor would notice be of any possible advantage to him, such as poll taxes, license taxes (not dependent upon the extent of his business), and generally, specific taxes on things, or persons or occupations. In such eases the legislature, in authorizing the tax, fixes its amount, and that is the end of the matter. If the tax be not paid, the property of the delinquent may be sold, and he be thus deprived of his property. Tet there can be no question that the proceéding is due process of law, as there is no inquiry into the weight of evidence, or other element of a judicial nature, and nothing could be changed by hearing the taxpayer. No right of his is, therefore, invaded.”

*576 In his brief, counsel for appellant suggests that the statute is repugnant to the provisions of section 2, Article III, of our state Constitution; but in the absence of something more specific, we are utterly unable to appreciate the force of the suggestion or to discover the remotest relationship between those provisions and the subject matter under consideration.

The statute does not apply to paupers, insane persons, Indians [3] not taxed, or to persons under twenty-one or over sixty years of age. Another statute (sec. 1068, Rev. Codes) specifically exempts members of the organized militia. Because of this lack of uniformity it is urged that these statutes conflict with section 6, Article XII, which provides: “No county, city, town or other municipal corporation, the inhabitants thereof nor the property therein, shall be released or discharged from their or its proportionate share of state taxes.” In the first place, appellant cannot raise the question of the authority of the state to exempt members of the organized militia from the payment of this so-called tax. Appellant is not a member of the national guard and is not affected by the exemption. His contribution is not increased in amount by reason of the exemption, and would not be diminished in amount if every member of the organized militia contributed. The validity of section 1068 is not in issue, here, for it is an elementary rule that one who is not affected by a statute will not be heard to question it. (State ex rel. Holliday v. O’Leary, 43 Mont. 157 , 115 Pac. 204 .)

Section 6, Article XII, refers only to state taxes levied for [4] the support of the state government, and not to taxes imposed for county or local purposes. No part of this so-called poll tax is devoted to maintaining the state, within the meaning of section 6 above.

The statute (secs. 2692-2714) is not open to the objections urged against it for the stronger reason. While in terms it designates the imposition a “poll tax,” the name itself is of no significance. A different designation might have been more [5,6] appropriate; but in any event, courts look beyond the *577 mere form of expression to the object and purpose of the legislation. This so-called tax is imposed for and applied to a single purpose—the care of the county poor. (Sec. 2714.) It will scarcely be questioned -that the state, in the exercise of its police power, can care for its poor, sick and infirm who are public charges, or delegate the power to do so to the several counties, its political subdivisions. Enlightened civilization imposes this duty upon every community, but in this state the duty is made imperative'by the Constitution itself. Section 5, Article X: “The several counties of the state shall provide as may be prescribed by law for those inhabitants who, by reason of age, infirmity or misfortune, may have claims upon the sympathy and aid of society.”

The statute now under consideration is nothing more nor less than a police regulation designed to carry into effect the will of the people expressed in the constitutional provision quoted above. It is analogous to a so-called road poll tax exacted for the maintenance of the public highways, and the authorities are practically unanimous in holding that such an exaction is not a tax as the term is used in the Constitution and in revenue measures generally. It is not subject to the uniformity rule or to other restrictions which hedge about measures relating to taxation. (Salt Lake City v. Wilson (Utah), 148 Pac. 1104 ; State v. Rayburn, 2 Okl. Cr. 413, 101 Pac. 1029 , Ann. Cas. 1912A, 733, and note, 22 L. R. A. (n. s.) 1067; see, also, Tekoa v. Reilly, 47 Wash. 202 , 13 L. R. A. (n. s.) 901, 91 PaC. 769 ; Short v. State, 80 Md. 392 , 29 L. R. A. 404, 31 Atl. 322 ; Elting v. Hickman, 172 Mo. 237 , 72 S. W. 700 ; Fairbault v. Misener, 20 Minn. 396 ; Shane v. City of Hutchinson, 88 Kan. 188 , 127 Pac. 606 .)

It is-competent for the legislature to provide for securing [7] these poor funds through the instrumentalities designated in the statute, and the assessor, in performing his allotted duty in this behalf, is not a collector of taxes, and the decision of this court in Mutual Life Ins. Co. v. Martien, 27 Mont. 437 , *578 71 Pac. 470 , has no application to the state of facts exhibited by this record.

The judgment is affirmed.

'Affirmed.

Mr. Justice Sanner concurs. Mr. Chief Justice Brantly, being absent, takes no part in the foregoing decision.