(dissenting)
I concede that the legislature has power to impose penalties for the failure of a taxpayer to pay his taxes in time. I concede too that the purpose of such legislation is to encourage the prompt payment of taxes and that the amount of the pen*52alty is usually to be determined by the legislature in its discretion, but the legislature may not impose unreasonable, arbitrary, excessive or oppressive penalties for to do so is a taking of property without due process of law and a denial of the equal protection of the laws. 16A C.J.S. Constitutional Law, section 549, pages 486, 488; 85 C.J.S. Taxation, section 1022, pages 577, 578, note 16.
It is a fallacious notion that section 20 of article III of the Montana Constitution, which provides: "Excessive bail shall not be required, or excessive fines imposed, or cruel and unusual punishments inflicted.”, protects a criminal who has been convicted of a crime, but that the sky is the limit of fines or penalties that may be imposed upon one who has not been convicted of a crime. I realize that there are cases that support the majority opinion in holding that section 20 of article III is not available to one who has been punished in civil as distinguished from criminal proceedings, but 1 think the Supreme Court of Texas was correct when it ruled otherwise under an identical constitutional provision in State v. Galveston H. & S. A. Ry. Co., 100 Tex. 153, 97 S.W. 71, 78.
There the court held that the word "fines” is synonymous with "penalties” and condemned a statute which imposed a penalty of $200 a day for delay in paying taxes. The court calculated that the penalty for one year would amount to more than $73,000. It pointed out that as to the one railroad company, there involved, the amount of the tax was claimed to be $74,724 so that the penalty for failure to pay for one year would be nearly one hundred percent of the amount of the tax. As to the other company the tax was $1,555 and the penalty for one year would be nearly fifty times the amount of the tax. The court condemned the penalty by saying: "The assessment of a penalty of 100 per cent, for the failure to pay a tax would seem to be sufficiently excessive to authorize a court to declare it to be excessive, but the assessment of more than 4,000 per cent, upon the amount detained can leave no possible question that the penalties are out of all proportion *53to the amount of money detained, and the law must be held ■to be void for the penalties.”
A case parallel with this is that of Stierle v. Rohmeyer, 218 Wis. 149, 159, 160, 260 N.W. 647, 651. There the statute in question provided that for failure of the mortgagee of a chattel mortgage to do certain acts the mortgagor might recover damages, a penalty of $25 and the debt secured by the mortgage shall be deemed fully satisfied. The court condemned the statute in part and said:
“The penalizing provisions of the statute are not saved by the fact that the transfer of the property is to be effected under the guise of a penalty. It was held in Mississippi before the adoption of the Fourteenth Amendment that a party could not be deprived of his property by a legislative declaration of forfeiture to the state for failure to pay the tax levied thereon, upon the general principle that this would be contrary to the fundamental principles of our state and federal governments. Griffin v. Mixon, 38 Miss. 424. The opinion quotes at pages 434, 435, of 38 Miss., from Van Horne v. Dorrance, 2 Dall. 304, 309, 1 L. Ed. 391, where it is said with reference to appropriating private property for public use by the Legislature: ‘ “The English history does not furnish an instance of the kind. The Parliament, with all their boasted omnipotence, never committed such an outrage on private property; and if they had, it would have served only to display the dangerous nature of unlimited authority; it would have been an exercise of power and not of right. Such an act would be a monster in legislation, and shock all mankind. The legislature, therefore, had no authority to make an act divesting one citizen of his freehold, and vesting it in another without a just compensation” (nor even with it, except for public use, he afterwards adds). “It is inconsistent with the principles of reason, justice, and moral rectitude; it is incompatible with "the comfort, peace, and happiness of mankind. It is contrary ■to the principles of social alliance in every free government; *54and lastly, it is contrary to' both the letter and spirit of the constitution’.”
“The Supreme Court of the United States has expressly held that a statute which by its terms exacts penalties beyond the bounds of reason is unconstitutional. [Citing a great many cases.] In all of these cases, it is held that a penalty that is unreasonable in amount deprives the penalized party of his property without due process. The penalty here is clearly subject to the same condemnation as those involved in the cases cited. In the Tucker case, supra [230 U.S. 340, 33 S. Ct. 961], a penalty of $500 imposed by statute for charging a shipper a freight rate in excess of a statutory rate was held to render the penalty provision void. The opinion states: ‘ It will be perceived that this liability is not proportioned to the actual damages. * * * As applied to cases like the present, the imposition of $500 as liquidated damages is not only grossly out of proportion to the possible actual damages, but is so arbitrary and oppressive that its enforcement would be nothing short of the taking of property without due process of law, and therefore in contravention of the 14th Amendment’.”
The court in that case sustained that part of the statute imposing a penalty of $25 and actual damages. If that statute was bad for considering the mortgage debt paid, then so is this one that doubles the amount of the tax. No cases sustain a penalty of 100 percent for delay in the payment of taxes. Some courts go to considerable length to sustain penalties imposed for such delays and attempt to justify their action upon the ground of state necessity. But that reasoning would not apply in this state. Here all income tax obligations stand in the same category as judgments against the one owing the tax.
The State Board of Equalization is authorized to issue a warrant directed to the sheriff of any county of the state commanding him to levy upon and sell property of the person owing the tax in order to effectuate the payment- thereof. R.C.M. 1947, section 84-4928. In such cases the sheriff is entitled to his fees, but they are added to the amount of the tax *55due, along with penalties and interest. Penalties are added under subdivision 1 of section 84-4924 which are not questioned here.
Hence the State suffers no loss in the collection of the tax where as here the taxpayer has ample property to satisfy the demand.
In my opinion the penalty of 100 percent of the tax is outrageously excessive and bears no relationship to damages which might be sustained by the State for the delay in paying taxes.
The legislature has since reduced the penalty to 25 percent and has made it apply only to those who fail to make the return or to pay the tax “with intent to evade any tax imposed by this act.” I express no opinion as to whether a 25 percent penalty is valid. Under the present statute the taxpayer would undoubtedly be privileged to show an absence of intent to evade the tax. Under the statute in effect when this tax accrued the penalty was imposed automatically and the taxpayer was not permitted to show as he offered to do that he thought the tax had been paid.
This adds to the invalidity of the act by denying to the taxpayer the opportunity to show the facts causing the delay in payment and hence is lacldng in due process of law. In 3 Cooley, Taxation, 4th Ed., section 1092, page 2209, it is said: “When a statute subjects the person to penalties of any kind, to be inflicted by a ministerial officer without a hearing, for a neglect that may have been unintentional and perhaps entirely excusable, it is not clear that it is consistent with the genius of the common law, or with general principles of American jurisprudence.”, and see the well reasoned majority opinion in Griffin v. Mixon, 38 Miss. 424.
I think the judgment of the trial court should be affirmed.