Montana Attorney General Opinion 15-258

Opinion No. 258 Road Tax-Poll Taxes-Levy-County Commissioners. HELD: The board of county conunis- sioners is required to make a per capita levy for road and poor poll taxes at the same time tax le\'ies on property are made, to-wit, the second Monday in August each year. June 30, 1933. You ha\'e requested my opinion re- garding the liability of emplo~'ers of labor for. and the manner of collecting, road and poor poll taxes under the laws of Montana. Section 1617, Reyised Codes 1921, as amended by Chapter 2. Laws of 1933, among other things, provides: "There is also established a general road tax of two dollars per annum on each male person over the age of twenty-one years, and under the age of fifty years, inhabitant within the county, and payable by each person liable therefor at any time within the year. The collection of these taxes shall be unde,r the direction of the board of county commissioners: taxes from freeholders to be collected the snme as other taxes, and from non- freeholders as commissioners may di- rect." Sections 1619 and 1620, He\'ised Codes 1921.. are as follows: "1619. Every employer having in his or its employment any person or pc·r- SOliS lia hIe for the sl1ecial road tax of two dollars, mentioned in this act. must on or before the third Mondav of March in each year, and monthl)' thereafter until the first day of Oc- tober, furnish to the county treasurer a complete list of all the persons SO employed, and if any such employer shall neglect or refuse to furnish such list, he shall forfeit to the county, ill which said road tax is collectible, the sum of fifty dollars, to be recovered by an action IIrought in the name of thesta'te in any justice court of said county, and the further sum of fifty dollars for each refusal or neglect to furnish such list after any demand shall ha \'e been made by the county treasurer. Upon the receipt of said lists it shall be the duty of said coun- ty treasurer to furnish to said em- OPI:,\IO:'\S OF 'fHE ATTORXEY GEXERAL 179 ployer furnishing such lists, printed special road tax receipt-books, with proper stubs containing memorandum of name, amount, and date attached. "1620. If any person required to pa~' the special road tax mentioned in this act does not pay the same and has no property subject to taxation, nnd the person owing the same is in the ('m- ployment of any other person, the county treasurer must deliver to the employer a written notice. stating the amount of tax due for such employec. and from the time of receiving said notice the employer is liable to pay said tax, and the tax so paid may he deducted hy such employer from the IImount then due or to become due to such employee." From a reading of Section 1620 it is clell.r that if an employee who is re- quired to 1l.'lY a road tax under the vrovi"ions of Section 1617 shoul<l fllil to do so and has no property subject to taxation, his employer following the receipt from the county treasurer of the proper written notice is liable for the tax and on payment of the same may deduct the amount thereof ft-om whatever is due o,r may become due to such employee. Statutes like the sections above quot- ed have been before the courts a num- ber of times and have heen almost al- ways upheld. The claim of discrimi- nation because of limitations in the matter of age and sex and of a deprh'a- tion of property wi'thout due process of law was brushed aside as being with- out force. (Thurston County v. Tenino Stone Quarries, 87 Pac. 634. 12 Ann. Cas. 314; Sawyer v. Alton, 4 Ill. 127; Elting v. Hickman, 72 S. W. 700; East Portland v. Multnomah County, 6 Ore. 62; Kootenai County v. Hope Lumher Co. 89 Pac. 1054; Salt Lake City v. Wilson, 148 Pac. 1104; Bluitt v. State. 121 S. W. 168; Tekoa v. Reilly, 91 Pae. 769, 13 L. R. A. (n. s. 001; Short v. State, 31 Ttl. 32), 29 L. R. A. 404; Byrne v. Fulton, 85 Mont. 329; 61 C .. T. 1534, 1535). Section 5, Article X of the Constitu- tion, is as follows; "The several counties of the state shall provide as may be prescribed hy law for those inhabitants, who, by reason of age, infirmity or misfortune. may have claims upon the sympathy and aid of society." Accordingly. Section 4465, Re\'ised Codes If121. as amended by Chapter 100. Laws of 1931. empowers the board of county commissioners, am 0 n g other things, "to pro\-ide for the care and maintenance of the indigent sick, or the otherwise dependent poor of the count~·; erect and maintain hospitals therefor, or otherwise provide for the same, and to levy the necessary tax therefor per capita, not exceeding two dollars. nnd a tax on property not ex- cceding three fifths of one per cent, or either of such le\'ies when both n re not r£'quired." Apparently, the board is required to make the per capita le\'y at the same time that tax le\ies on property are made, to-wit: on the second :Monday in August of each year. (Section 2150, Re- vised Codes 1921. and subc1ivisions 5 nmI 13 of Section 4465. as nmended; Rtate ex reI. Fadness v. Eie, 53 :\10nt. 138; People Y. Ames, 51 Pac. 426). We may add that bon rds of county commissioners generally levy' the per capita <tax on all male inhabitants of the state over twenty-one nnd under sixty years of age, except paupers, in- sane persons and Indians not taxed. using, perhaps. as their guide Section 2273, Revised Codes of 1921, which was dpc\ared unconstitutional hy the Su- preme Court in the case of State ex reI. Pierce Y. Gowdy, 62 Mont. 119.