U.S. Gpsm. Co. v. Brd. Equalization , 116 Mont. 275 ( 1944 )

I am unable to follow the reasoning by which the majority opinion reaches the conclusion that there is no adequate provision for including wallboard when computing the amount of the license tax which the plaintiff is required to pay under the statute. The plain language of the statute specifically and definitely requires manufacturers and producers to account for all "gypsum or gypsum products manufactured, produced or imported in this state" by them when computing the amount of the annual license tax to be paid by them. It is conceded that during the time here involved the plaintiff owned and operated a gypsum plant in this state where it mines gypsum and manufactures products therefrom. One of the products which plaintiff manufactures is wallboard. Wallboard has a gypsum content of 79.2 per cent. The term "gypsum products" is much more general and comprehensive than the term "wallboard" but I fail to see how it can be said that "wallboard" having a gypsum content of almost 80 per cent. is not a gypsum product and as such included in the statute which provides: "Every person engaged in or carrying on the business of producing or manufacturing * * * gypsum plaster or other products of * * * gypsum in this state, and any person who imports into this state any such products for sale or use, must, * * * each year * * * when engaged in or carrying on such business in this state, pay * * * a license tax for engaging in and carrying on such business, in an amount equal to * * * five cents (5c) per ton of two thousand (2,000) pounds on * * *gypsum or gypsum products manufactured, produced or imported into this state during such year by such person." Sec. 2357, Rev. Codes. (Emphasis mine.)

The majority opinion correctly recognizes that the 1921 and 1925 Acts, Chapter 15, Laws of 1921, and Chapter 127, Laws of 1925, did not mention or include within their terms "gypsum products" but by the amendment brought about through the enactment of Chapter 166, Laws of 1931, now section 2357 of the Revised Codes of 1935, "gypsum products" were specifically written into the Act and it is apparent that the very purpose the legislature had in thus amending the law was to include therein "gypsum products" and as evidence of such intent the legislature specifically mentioned and included such products both in the title of the Act as well as in the body thereof. The title to Chapter 166, Laws of 1931 reads: "An Act to Amend Section 2357 of the 1921 Revised Codes of Montana, as Amended by Section 1 of Chapter 127 of the Laws of 1925; Requiring Persons Engaged in the Business of Producing, Manufacturing, or Importing Cement andGypsum and Products of Either; to Pay to the State of Montana a License Tax for Engaging in Such Business; Fixing the Amount of Such License Tax and Defining the Term `Import'." (Emphasis mine.)

The state legislature may, either in the exercise of the police power or for the purpose of revenue, require licenses or impose license taxes on occupations or privileges within the limits of the State. (Johnson v. Great Falls, 38 Mont. 369,99 P. 1059, 16 Ann. Cas. 974; State v. Camp Sing, 18 Mont. 128,44 P. 516, 32 L.R.A. 635, 56 Am. St. Rep. 551.) This form of legislation is expressly authorized by section 1 of Article XII of the Constitution which, in part, provides that, "The legislative assembly may also impose a license tax, both upon persons and upon corporations doing business in the state." (See also State v. Hammond Packing Co., 45 Mont. 343,123 P. 407, affirmed 233 U.S. 331, 34 S. Ct. 596, 58 L. Ed. 985.) Pursuant to such provision of the Constitution the legislature exercised its authority by the enactment of the license tax law, Chapter 166, Laws of 1931, here involved. This court should so interpret such valid enactment as to make it effective and not, by strained construction, nullify and defeat the plainly expressed intent of the legislature.