Lindeen v. Montana Liquor Control Board

PER CURIAM. This is an action to enjoin the Montana Liquor Control Board from collecting, for the use and benefit of counties, cities and towns, a six percent sales tax on the retail selling price of liquor delivered or sold in the state pursuant to the provisions of Chapter 15, Laws of 1949. The complaint charges that the legislation is violative of prohibitory provisions of Section 4 of Article XII and of the manda *551 tory provisions of Section 5 of Article XVI of the Constitution of Montana. An order to show cause issued on the filing of the complaint. Defendants appeared by interposing a motion to quash the order and a general demurrer to the complaint. Upon the denial of the motion and demurrer defendants elected to stand upon same and judgment was entered for plaintiff. From that judgment defendants have appealed. The Constitution of Montana prohibits the state legislature from levying taxes upon the inhabitants or property in this state for purely local county, town or municipal purposes. Section 4 of Article XII of the Constitution provides: “The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town, or municipal purposes * * *. ’ ’ The provision is mandatory and prohibitory, sec. 29, Art III, Const., and in its construction the court is “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted * * *.” Sec. 10519, R. C. M. 1935. In violation of the prohibition so imposed by Section 4 of Article XII, supra, the Thirty-first Legislative Assembly in the enactment of Chapter 15, Laws of 1949, assumed to authorize and direct the Montana Liquor Control Board to charge, receive and collect a tax of six percentum (6%) of the retail selling price on all liquor sold or delivered in this state, such retail selling price to be computed by adding to the cost of liquor the state mark-up as designated by the board. The Act further provides that the board shall retain the amount of such six percentum tax so received in a separate account and that it ‘ ‘ shall apportion said tax to the treasurers of the counties according to the amount of liquor sold by said board to the purchasers in each county,” and that after apportioning the funds to the incorporated cities and towns, “the remainder shall he placed in the general fund of his county.” (Emphasis supplied.) Thus the apportionment is to be made according to the inhabitants purchasing liquor in each county, each of whom is re *552 quired to pay the tax at the time he makes his purchase, such tax being added to the cost of his liquor. There is no limitation on the use the counties, cities and towns may make of the tax so collected. The tax is not a license fee required of persons “doing business in the state” but it is a sales tax imposed upon “the inhabitants” of the various counties, cities and towns buying liquor. Purchasing liquor for one’s own consumption or to slacken or quench the thirst of a companion does not constitute “doing business in the state” and the tax so imposed may not be considered as a license imposed upon the right to do business. Every inhabitant who purchases liquor in this state must pay the tax despite the plain and simple language of section 4 of Article XII of the Constitution which says the “legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town, or municipal purposes * * The theory behind this constitutional provision is the preservation to the people of the principle of local self-government, — “Home Buie,” — which is fundamental in our American political institutions. In State ex rel. Gerry v. Edwards, 42 Mont. 135, 145, 146, 111 Pac. 734, 737, 32 L. R. A., N. S., 1078, Ann. Cas. 1912A, 1063, the court quoted with approval from Rathbone v. Wirth, 6 App. Div. 277, 40 N. Y. S. 535, wherein the Supreme Court of New York in turn quotes with approval from Black on Constitutional Law, section 131, the following: “The principle of local self-government is regarded as fundamental in American political institutions. It means that local affairs shall be decided upon and regulated by local authorities, and that the citizens of particular districts have the right to determine upon their own public concerns without being controlled by the general public or the state at large. For this purpose municipal corporations are .established and are invested with rights and powers of government subordinate to the general authority of the state, but exclusive within their sphere. ‘It is axiomatic that the manágement of purely local affairs belongs to the people *553 concerned, not only because of being their own affairs, but because they will best understand and be most competent to manage them. The continued and permanent existence of local government is therefore assumed in all the state Constitutions, and is a matter of constitutional right, even when not in terms expressly provided for. It would not be competent to dispense with it by statute.’ The institution of local self-government is not an American invention, but is traditional in England, and is justly regarded as one of the most valuable safeguards against tyranny and oppression. It is but an extension of this idea that the government of the United States should be intrusted with only such powers and rights as concern the welfare of the whole country while the individual states are left to the uncontrolled regulation of their internal affairs. ’ ’ Again in State ex rel. Gerry v. Edwards, supra, 42 Mont. at pages 147-150, 111 Pac. at page 737, this court said: “In People ex rel. LeRoy v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103, the Supreme Court of Michigan asserts the inherent independence of the cities of that state in matters of purely local concern. The question of the exercise of the taxing power was not directly involved. The Constitution of Michigan then did not in express terms limit the authority or control of the Legislature over cities, but the eminent members of that court, Cooley, Campbell, Christiancy, and Graves, held that there was implied in the Constitution the right of the inhabitants of a city to local self-government with respect to matters of purely local concern. In People ex rel. Board of Park Commissioners v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202, the validity of an act of the Legislature creating a park board for the City of Detroit, naming the members and defining the duties and powers of the board, was in question. Among others, the board was given the power to purchase land for park purposes, and, upon certifying the amount necessary to make such purchases to the council, the council was required to provide the money by the issuance and sale of city bonds. Because of the fact that in the selection of the board the people of the city did not have any voice, because *554 the city council was not given any discretion in the matter of raising the funds for the board, and because of the fact that the exercise of such authority by the Legislature would destroy the right of the residents of the city to local self-government, the Supreme Court of Michigan refused to compel the city council to furnish the funds demanded by the board, and in doing so held that the Act of the Legislature was unconstitutional. These two decisions by the Michigan court are everywhere cited as leading cases upholding the theory of local self-government. * * * ‘ ‘ It will thus be seen that the theory of local self-government in matters of purely private concern as distinguished from the theory of absolute legislative control, was adopted in this state as early as 1897, and we think rightly so. We must assume that the framers of our Constitution had a purpose in view in denying to the legislature the right to levy taxes upon the property or people of any city for city purposes; and it cannot be imagined that they intended that what they had declared could not be done directly ■ could nevertheless be accomplished by indixection. * * * ‘ ‘ In treating of our system of government, Bryce, in his work entitled ‘The American Commonwealth’ (volume 2, p. 611), says: ‘Nothing has more contributed to give strength and flexibility to the government of the United States, or to train the masses of the people to work their democratic institutions, than the existence everywhere in the northern States of self-governing administrative units, such as townships, small enough to enlist the personal interest and be subject to the personal watchfulness and control of the ordinary citizen. Abuses have indeed sprung up in the cities, and in the ease of the largest among them have become formidable, partly because the principle of local control has not been' sufficiently adhered to. Nevertheless the system of- local self-government as a whole has been not merely beneficial, but indispensable, and well deserves the study of those who in Europe are alive to the evils of centralization, and perceive that those evils will not necessarily diminish with *555 a further democratization of such countries as Britain, Germany and Italy’.” A tax by any name is just as onerous for the inhabitants upon whom it is impressed and especially so when the taxpayer and his local authorities have been denied and deprived of their constitutional right to say “Yea” or “Nay” to the impressment of the tax. The imposition of the six percentum sales tax on liquor to be used for county, town or municipal purposes is squarely within the prohibition of section 4 of Article XII of our Constitution and it is crystal clear that such provision of the Constitution is not limited to taxes upon property for by its express language the legislature is prohibited from making the levy upon the inhabitants in any county, city, town or municipal corporation as well as upon their property for county, city, town or municipal purposes. Section 7, Article 10 of the Constitution of Colorado is substantially the same as section 4 of Article XII of the Constitution of Montana. In Walker v. Bedford, 93 Colo. 400, 26 Pac. (2d) 1051, 1052, the court considered a statute imposing an additional fee for registration of motor vehicles, the proceeds from which should be paid to county treasurers for the “County Emergency Relief Fund” and held the statute to be unconstitutional. In State ex rel. Pierce v. Gowdy, 62 Mont. 119, 203 Pac. 1115, 1117, this court considered a statute imposing a poll tax upon male inhabitants, the proceeds whereof were to be paid into the poor fund of the county. The statute was held invalid as violative of section 4, Article XII of the Constitution. In determining what constitutes a tax the court quoted with approval from 26 R. C. L. 13 and 14 and then said: “There is nothing' whatsoever embraced in either the title of the act or in the body thereof to indicate an intention to exercise the police power of the state and the act itself expressly denominates the assessment as ‘a tax’ * * The quoted statement applies with equal force to Chapter 15, Laws of 1949, supra. In the Gowdy case, supra, the court further said: “We are of the opinion that the object *556 of section 4 of article 12 of our Constitution was to relegate to the several counties the whole subject of taxes for county purposes, and that thereby the Legislature is denied authority to impose any tax on the inhabitants of a county for county purposes.” See also State ex rel City of Bozeman v. Police Court, 68 Mont. 435, 219 Pac. 810; People ex rel. LeRoy v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103. Compare: State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 55 S. W. 627, 48 L. R. A. 265, 77 Am. St. Rep. 765. Section 12, Article XI of the Constitution of California is substantially the same as .Section 4, Article XII of the Constitution of Montana, but the California Constitution has no provision like that set forth in the last sentence of Section 1, Article XII of the Montana Constitution. The legislature of California enacted a statute which imposed a privilege tax on owners of registered .motor vehicles and provided that one percent thereof should be apportioned to the department of motor vehicles for administrative purposes and that 25% of the remainder of the fund is appropriated to the cities and counties for law enforcement and the regulation and control and fire protection of highway traffic. In considering the California statute in City of Los Angeles v. Riley, 6 Cal. (2d) 621, 59 Pac. (2d) 137, 138, the California court said: “There can be no doubt that the proMbitions of this section (sec. 12, Art. XI) apply to license and privilege taxQS, as well as to property taxes.” (Citing cases.) However, the statute was held valid by reason of the provisions therein that such funds collected should be used for the purposes of “law enforcement and regulation and control and fire protection of - highway traffic, ’ ’ which purposes were held to be “state in character, within the meaning of the above constitutional provision.” : Chapter 15, Laws of 1949, supra, places no such limitation in the use of the money to be collected through the six per cent, sales tax on liquor and therefore may not be sustained on the grounds stated by the California court in City of Los Angeles v. Riley, supra. People v. Martin, 60 Cal. 153, is here in point and *557 holds unconstitutional a statute most similar to Chapter 15, Laws of 1949, supra. Appellants place much reliance upon this court’s decision in State v. Camp Sing, 18 Mont. 128, 44 Pac. 516, 32 L. R. A. 635, 56 Am. St. Rep. 551, and State v. Silver Bow Refining Co., 78 Mont. 1, 252 Pac. 301. The Camp Sing ease, supra, involved a license tax imposed upon the business of running a laundry, sec. 2440, R. C. M. 1935, and State v. Silver Bow Refining Co. case, supra, involved a statute, sec. 2381 to 2396, Pol. Code of 1921, as amended by Chapter 150, Laws of 1923, imposing a license tax upon the business of running a manufacturing plant, refining, producing and selling gasoline and distillate and by section 2392 as amended, limiting the use of such funds to state purposes as did the California statutes construed in City of Los Angeles v. Riley, supra. These eases, as well as the case of State v. Driscoll, 101 Mont. 348, 54 Pac. (2d) 571, sustain the license imposed by the statutes involved under the provision set forth in the last sentence of Section 1 of Article XII of the Constitution of Montana, but do not uphold the tax levied in violation of the provisions of Section 4 of Article XII of our Constitution. Such cases are therefore readily distinguishable from the case at bar where in violation of the express prohibition of Section 4 of Article XII of the Constitution of Montana the legislature has assumed to authorize the state to levy a sales tax upon inhabitants for the privilege of purchasing and using liquor and then assumes to .authorize the state to turn over to the various counties, cities and towns for their own unrestricted and local use the moneys so exacted by the state. The legislative assembly must not only know but it must observe the prohibitions and limitations which the people of this state have seen fit to impose upon such branch of the government by their ratification of our state Constitution. The 1949 legislative assembly disregarded and violated the provisions of Section 4 of Article XII of the Constitution in the enactment of 1hat portion of Chapter 15, Laws of 1949, pertaining to the six *558 percent sales tax on the retail selling price of liquor and such provisions are void as the district court correctly held. The judgment is affirmed.