Montana Attorney General Opinion 15-48

Opinion No. 48 Poll Tax - (kneral Poll Tax - Road Poll Ta.,,-Poor Poll Tax. HELD: Inhahitants of special road districts paying poll tax must be given cl'edit lJy County Treasurer. General poll tax cannot be collected from cities and towns which provide for like tax hy ordinance. Sections 2273-2295 R. C. )1. 1H21, pro\'iding for impOSition allll eol\eotion of poor poll tax, are uncon- stitutional. Poor poll tax and road poll tax distinguished. January 31, 11)33. You have submitted the following questions: "1. Is the general road tax of $2.00 per annum per person over the age of 21 years and under the age of 50 years to be levied against the inhahitants of special road districts that ha "e lev- ied the tax specified in section 1663? That is, ,jf the special road district .has provided for the tax of $2.00 upon the inhabitants of special road dis- trict, can the county also levy the gen- eral road tax of $2.00 specified in sec- tion 1617? "2. If the incorporated cities and 'towns ha "e levied the road poll tax specified in section 5211), can the county also levy the tax specified in section 1617? OPI:,\IO:'\S OF THE ATTOR:,\EY GE:,\ERAL 43 "3. In reference to poll tax, is the poll tax provided by section 22i3 to he levied upon the county in general or is it to be levied upon the inhabi- tants of the county with the excep- tion of the incorporated cities and towns who hm-e provided by ordin- ance for like poll tax, and does it apply upon the inhabitants of special road districts who ha \'e also made pro\;sion? "4. If the county has to levy its poll tax under subdh'ision 5 of Section 4·lG5, can the connty le\-y that tax upon the inhabitants of speeial road (l,istdcts and incorporated cities and towns that have made provision for Rimila r poll taxes 'f" In answer to question 1, it is my opinion that the general road tax of $2.()0 per annum 11l'o\-1ded in section lH1i. H. C. M. 1!}21, should be le\"ied on each male verson O\-er the age of 21 years and under the age of 50 years inhabitant within the county. In the event, however, that a special road dis- tl'iet has been created as provided by chapter 12S H. C. i\I. 1921 as amended hy chapter 11, laws of 1929, it is made the duty of the district treasurer of said spe"cial road distdct to proceed to collect the road tax of $2.00 as provid- ed in Section 1663, H. C. M. 1!l21, as "oon as possible beginning the first day of March in every year, Before the 15th (lar of August in each year he shall make'a report to the county treas- urer of the names of all persons who ha \'e paid their special road tax and the county treasurer shall credit all persons whose names appear on the as- sessment roll of the county with the a IlIoupt so reported by the district tl"(~asurer, In other words, the county treasurer shall collect the general road tax from all male persons of 'the age suhject thel'eto, inhabitant within the county, lin less the speci'al road tax is collected by the district treasurer and rep(wted he fore August 15 of each yeat'. As stH ted in section Hi52, the purpose of such special road districts is to pro- \·.ide for the proper care, supervision 1I1H1 malntenanc'C of existing public highways within such districts -by the people within those districts instead of being go\'erned by the prO\-i8'ions of the general road district la w, In our opin- ion it was not the intention of the leg- islatUl'e, which, in l!)li, enacted said chapter 128, and also amended the law as incol1)(H'ated in section 16li to im- pose a double poll tax for road pm'- poses upon persons who might be in- habitant of special road districts, As stated above, however, -the $~.OO poll tax must be collected by the treasur- er, if the $2,00 poll tax is not collected hy the district treasurer. In answer to question 2, it is our opinion that section 521!), R C, M, 1921. has been repealed by section 16li, R. C. M. 1921. This was also the opin- ion of Attornev General Galen. Sec Volume i'I, page i9s, Opinions of the At- torney General. Cities and towns may, howe\'er, proceed to make a like levy of $2.00 for road, street and alley pur- poses under the pro\-isions of section 1G1i and in the event that they ma1w such 1evy, in our opinion the county IlIay not make a similar le\-y upon per- sons inhabitant of such cities and towns, Volume 11, Opinions of Attor- ney General, pages 105 and 1!l5; State ex reI. City of Cut Bank v. )-[cC\'amer, 62 Mont. 490. In answer to question 3, it. is our opinion that Section 22i:i and all of Chapter liS, which includes sections 22i3 ,to 22!l5, R C. M. H)21. are uncon- stitutional. '''hile in State v. GO\Y(I~-, 62 )font. 119, ,the point invoh'ed was the second part of section 22i3 which has been referred to as the hachelor tax 'and which was by the court in that case declared unconstitutional, the sallle reasoning applies with equal force -to the first part of that section. The tax provided for in that section was for' the exdush'e use of the poor fund of the county. It is a poor poll tax. As was held in the case of State \-. G-owdy, the enactment of section 22i3 was not in the exere:ise of its po- lice power by the legislll'ture but was an im-asion 'of the powers which have lwen delegated to the several counties hy section 4, article XII of the constitu- tion, and thet'efore unconstitutional. See Opinions of Attorney General, Vol- ume 9, page 4::1!); Volume 12, page Si9, In 'answer to your question 4, jot is to he observed that the power is given under subdivi;,ion 5, section 4465, R C. ~I. 1!)21 , to le\-y a general poor poll tax to provide "for the care and mainten- ance of the indigent sick, or the other- 44 OPINIONS OF THE ATTORNEY GEXEHAL wise dependent poor of the county; erect and maintain hospitals therefor, or otherwise provide for the same; and to le,-y the necessary tax therefor, per capita, not exceeding two dollars .. * * " This poor poll tax is not to he confused "ith the road poll tax as ]H'ovided for in sections 1617 and 166.'3. In our opinion neither cities and towns nor special road districts would be ex- empt from the poor poll tax if levied by the county by reason of the provi- sions pertaining to road poll tax pro- ,-ided for in the above named sections. Of course, neither cities aIHI towns nor special road districts are authorized to ]m-y poor poll taxes_