(dissenting).
In State ex rel Graham v. Board of Examiners, 125 Mont. 419, 239 Pac. (2d) 283, this court held that an act authorizing a veterans’ honorarium and the issuance of bonds for that purpose payable from a cigarette tax serves a public purpose and is valid as an attempt to partially compensate veterans for their sacrifices. The particular veterans compensated by the measure there considered were those who had served the United States of America and the State of Montana by their participation in that conflict known as World War II. Subsequent to the cessation of hostilities in World War II, the United States became involved in another overseas conflict, and once again the State of Montana has furnished participants for that conflict who served therein and who have made sacrifices for which they should be compensated.
*28In the Graham case, supra, the legislation authorizing the honorarium was an initiative, Initiative Measure No. 54, Laws of 1951, directly submitted to, voted and passed by the people of the entire state. The measure so passed by the direct vote of the people which authorized the honorarium for the veterans of World War II did not cover the veterans of the more recent Korean conflict.
In an endeavor to amend Initiative Measure No. 54, Laws of 1951, page 781, so as to provide compensation for the veterans of the Korean conflict, the Thirty-fifth State Legislative Assembly, in 1957, sought to amend Initiative Measure No. 54, supra, by introducing in the Legislature and passing a bill which became Chapter 44 of the Montana Session Laws of 1957. By such amendment the Legislature seeks to provide for the payment of an honorarium to the veterans of the Korean conflict on substantially the same basis as that paid to the veterans of World War II through the enactment of Initiative Measure No. 54, supra, and by such amendment to provide for the issuance and sale of additional bonds in the amount of $6,000,000 over and above the amount of $22,000,000 originally provided for in Initiative Measure No. 54 and to further provide for the levy of an additional one cent tax on cigarettes over and above the two cent tax on cigarettes originally provided for in Initiative Measure No. 54.
By virtue of the authority purporting to have been granted by the Thirty-fifth Legislative Assembly in its enactment of Chapter 44, Laws of 1957, the state board of examiners commenced proceedings to carry said Chapter 44 into effect, whereupon, by complaint filed in the district court for Lewis and Clark County, the plaintiff, James E. Cottingham, here sought to enjoin the board of examiners from so proceeding.
The district court made an order refusing to issue an injunction and this is an appeal by plaintiff from that order.
On appeal the appellant Cottingham assigned some six specifications of error. In my opinion the correct determination of but one of such specifications would be decisive of the appeal.
*29As before stated, Chapter 44, Laws of 1957, seeks only to amend Initiative Measure No. 54. Chapter 44, supra, provides for an honorarium for a larger number and different class of veterans. It levies an additional tax and it authorizes an increase of liability in the further and additional amount of $6,000,000. It makes no provision whatever for the submission of the measure to the vote of the people for their acceptance or rejection. Its passage by the Legislature and signing by the governor was deemed final.
It is the appellant’s contention that the omission to provide for the submission of the law (Chapter 44, Laws of 1957), to the vote of the people invalidates the act for the reason that the act creates a debt or liability in excess of $100,000 without the issue being submitted to the people as required by section 2, Article XIII, of the Montana Constitution, which provides:
“The legislative assembly shall not in any manner create any debt except by law which shall be irrepealable until the indebtedness therein provided for shall have been fully paid or discharged; such law shall specify the purpose to which the funds so raised shall be applied and provide for the levy of a lax sufficient to pay the interest on, and extinguish the principal of such debt within the time limited by such law for the payment thereof; bid no debt or liability shall be created which shall singly, or in the aggregate with any existing debt or liability, exceed the sum of one hundred thousand dollars ($100,-000) except in case of war, to repel invasion or suppress insurrection, unless the law authorizing the same shall have been submitted to the people at a general election and shall have received a majority of the votes cast for and against it at such election (Emphasis supplied.)
The specific question here presented is: In view of the above provision in our State Constitution may the State Legislative Assembly lawfully amend Initiative Measure No. 54, Laws of 1951, page 781, wherein the amount of the debt or liability as voted upon and passed by the people is raised some $6,000,000 *30without first submitting such amendment and six million dollar raise to a vote of the people?
The question presented is not new. In 1931, the State Highway Treasury Anticipation Act was passed. The Act provided for an excise tax on motor fuel to be used to pay the principal and interest on state highway debentures authorized to be sold in the amount of $6,000,000. After passage of the Act by the Legislative Assembly and the signing thereof by the governor on January 26, 1931, a significant date, one Diederichs brought a proceeding to enjoin the issuance or selling of the debentures. The action was submitted to this court on February 9, 1931, and the opinion herein was rendered February 21, 1931. State ex rel. Diederichs v. State Highway Commission, 89 Mont. 205, 296 Pac. 1033.
The principal contention in the Diederichs case, supra, was that the Act of the Legislature, there in question, violated the Constitution of the State of Montana by creating a debt or liability in excess of $100,000 without submitting the measure to a vote of the people as is required by the provisions of section 2, Article XIII, of our State Constitution. There, as here, the court was required to take full cognizance of the rules of law applicable when a question of the constitutionality of a legislative act is raised. The primary argument there presented was that a debt or liability was not created within the constitutional bar because a special fund to repay the indebtedness had been created. There this court rejected such contention and held the law void as violative of the Constitution because it was not submitted to the people. By reason of the decision in the Diederichs ease, I believe it necessary to set out the court’s holding discussing the application of section 2, Article XIII, wherein this court said:
“* * * Knowing the tendency of governments to run in debt, to incur liabilities, and thereby to affect the faith and credit of the state in matters of finance, thus imposing additional burdens upon the taxpaying public, the framers of the Constitution placed positive limitations upon the power of the *31Legislative Assembly to incur a debt or impose a liability upon tbe state beyond the limit prescribed, without referring the proposition to the electorate for its approval. * * *
“The creation of an obligation, payable from these funds, is a liability of the state; its effect is to divert a large part of the revenues of the state into the state highway fund for a period of ten years, which otherwise might be used to pay the public debt or to defray the general expenses of the government, thus relieving the heavy burden of taxes levied upon property. If the process designed by chapter 1 does not create a state liability, then the Legislature undoubtedly could do the same thing with other license taxes, the inheritance taxes, and the net proceeds of mines taxes, all of which are properly considered in determining the limitation of expenditures and appropriations under section 12 of article 12 of our Constitution (State ex rel. Toomey v. State Board of Examiners, supra [74 Mont. 1, 238 Pac. 316], and thus accomplish by indirection what the Constitution prohibits to be done directly.
“The people are gravely concerned as to how and the purposes for which their money is spent. They may eagerly desire to sell the proposed debentures, thereby matching the sums provided by a generous Congress, to the end that our state may be afforded good roads' without delay; but another measure pledging excise taxes in large amounts for some special purpose might encounter their definite disapproval.
“The examples demonstrate, if any demonstration is needed, the salutary purpose of the constitutional provision here under consideration. * * *
“The upshot is that in order to validate the act it must receive the approval of the electorate.”
Justice Angstman in his specially concurring opinion said:
“The reasons stated in the court’s opinion supporting the conclusion that the creation of the special fund for the payment of the debentures does not prevent the act from creating a liability are my reasons why the provision for a special fund does not save the act from creating a debt. The scheme provided *32by chapter 1 diverts public revenues to the payment of a loan by the state as effectually as if the full faith and credit of the state were actually pledged in payment of the debentures. The fact that it creates a debt within the purview of section 2, article 13, is the justification for attempting to make the law imposing the excise tax irrepealable. Much was said by learned counsel for respondents in the brief and oral arguments to the effect that section 2, Article 13, in the use of the words ‘levy a tax, ’ means only an ad valorem tax. If this were so, then this act is in conflict with section 2, and a vote of the people would be useless. If that is the correct interpretation to be placed upon section 2, then that section, by construction, would contain this command to the Legislature: ‘You shall not create a debt in any manner unless you provide for the levy of an ad valorem tax sufficient to pay the principal and interest within the time provided.’ Confessedly no ad valorem tax has been levied. That construction of section 2 would make it read substantially as the Iowa Constitution * * * which requires ‘the collection of a direct annual tax.’ Under such a provision the Iowa Supreme Court has held that the Legislature was without authority to exercise a mortgaging power over future gasoline and motor vehicle license taxes. State ex rel. Fletcher v. Executive Council, 207 Iowa 923, 223 N.W. 737.
“In my opinion, however, the words ‘levy of a tax,’ as used in section 2 contemplate only that the Legislature when creating a debt shall provide for raising sufficient revenues to pay the principal and interest by either of the constitutional methods of raising revenues for public purposes, and that it includes the levy or imposition of a license or excise tax, as here.” (Emphasis supplied.)
Thus on February 21, 1931, the law of the State of Montana required that the creation of a debt or liability in excess of $100,000 depended for its validity upon the outcome of the vote of the people. Has this law been changed? May the Legislature today without a vote of the people amend a $22,000,000 bond issue of which the people approved so that it is increased *33to and becomes a $28,000,000 bond issue? Section 2 of Article XIII, today reads precisely as it read in 1931. This section of our Constitution has not been changed or amended. It follows that the amendatory act, Chapter 44, Laws of 1957, attempting to create a liability of the state in excess of $100,000 without submitting the question to the people, presents the identical question long since decided by this court in the Diederichs ease, supra.
In the instant case it is urged that the Diederichs case no longer controls in a situation such as is here presented because in 1932 the Constitution was amended by inserting a new provision in section 2 of Article IX of the Constitution which provides: “If the-question submitted concerns the creation of any levy, debt or liability the person, in addition to possessing the qualifications above mentioned, must also be a taxpayer whose name appears upon the last preceding completed assessment roll, in order to entitle him to vote upon such question.”
While the above change clarified and defined the qualifications of the persons entitled to vote on a question which concerns the creation of any levy, debt or liability, yet it did not amend or change the meaning of the words “debt or liability” as used in section 2 of Article IX of the Constitution so as to make the section read “debt or liability founded on an ad valorem tax” as is stated in the majority opinion herein.
The Diederichs case, supra, held that the word “tax” as used in section 2, Article XIII, was any tax provided for by the Constitution, either a license or excise tax or a property tax. The tax involved in the instant case is an excise tax. It is not a license.
In State ex rel. State Aeronautics Commission v. Board of Examiners, 121 Mont. 402, 194 Pac. (2d) 633, 636, this court quoted with approval from State ex rel. Attorney General v. Wisconsin Constructors, 222 Wis. 279, 268 N.W. 238, 243, as follows:
“ ‘Taxes are imposed for the purpose of general revenue. Licenses and other fees are ordinarily imposed to cover the cost *34of supervision or regulating. [Citing cases.] The distinction between a tax and an imposition under the police powers is well stated in Cooley on Taxation (4th Ed.), pages 3511, 3513, 3528:
“ ‘ “The distinction between a demand of money under the police power and one made under the power to tax is not so much one of form as of substance. The proceedings may be the same in the two cases, though the purpose is essentially different. The one is made for regulation and the other for revenue. If the purpose is regulation the imposition ordinarily is an exercise of the police power, while if the purpose is revenue the imposition is an exercise of the taxing power and is a tax. If, therefore, the purpose is evident in any particular instance, there can be no difficulty in classifying the case and referring it to the proper power. * * *” ’ ”
The tax here imposed has nothing whatever to do with the regulation of any thing or person. Its purpose is simply and solely to raise revenue. It is an excise tax on cigarettes. It is a tax on property. Although the word “imposed” is used alone in section 16 of Initiative Measure No. 54, Laws of 1951 at pages 787-789, the actual imposition is in subdivision 3 of section 84-5606, R.C.M. 1947, as amended, the pertinent part whereof provides:
“Subdivision — (3). From and after the effective date of this amendatory act of the Thirty-fifth Legislative Assembly of the State of Montana, there is hereby levied, imposed and assessed, and there shall be collected and paid to the State of Montana, upon cigarettes sold or possessed in this state, the following excise tax * * *.” (Emphasis supplied.)
The tax imposed is an excise tax on property. It is not a license tax. This law looks to the levy and assessment of a tax on property for its retirement. The names of persons on the assessment rolls are persons paying either personal property taxes or real property taxes, or both. Why then should these taxpayers be denied the right given to them by the State Constitution to pass upon the creation of any debt or liability, *35“which shall singly, or in the aggregate with any existing debt or liability, exceed the sum of one- hundred thousand dollars ($100,000) ” when such debt and liability is to be retired by an additional tax on property.
The majority opinion herein also poses the proposition that from the amendment to section 2 of Article IX of the Constitution was also changed and amended by limiting an elector to a taxpayer “whose name appears upon the last preceding completed assessment roll,” and that section 2 of Article XIII of the Constitution was further amended by providing that the debts or liabilities to be voted upon must be debts or liabilities which look to ad valorem taxes for their retirement.
I am unable to subscribe to the theory thus advanced. The majority opinion therein implies that the constitutional amendment of 1932 was enacted to overcome this court’s holding in the Diederichs case, supra. Such was neither the purpose nor intent of the amendment. The intent of an amendment to the Constitution like the intent of an act of the Legislature must be determined as of the date or time of its introduction. The constitutional amendment to section 2 of Article IX was introduced in the house on January 13, 1931, whereas, the Diederichs case was not submitted to the supreme court until February 9, 1931, and it was there decided on February 21, 1931. Now the act of the Legislature in question in the Diederichs case was not passed until January 26, 1931, hence it becomes most difficult to believe that the amendment to section 2 of Article IX of the Constitution was proposed January 13, 1931, with the thought in mind that if the particular act should be passed, and if the supreme court should thereafter hold the act void, then, and in that event, there would be the constitutional amendment, which, in the future, would cure such defect as the supreme court might find in the act at some future time when the Diederichs case should be submitted to this court for decision.
The effect on section 2 of Article XIII of the above amendment to the Constitution has been considered in later eases con*36cerning this same question here urged. See Martin v. State Highway Commission, 107 Mont. 603, 615, 88 Pac. (2d) 41, and Pioneer Motors, Inc., v. State Highway Commission, 118 Mont. 333, 165 Pac. (2d) 796. In upholding the validity of the elections the court implied their necessity even in view of the amendment, and this court should not be expected to pass upon the validity oi; an election if such election should be deemed to be wholly unnecessary.
Likewise I am unable to subscribe to the proposition that the provisions of the Constitution here involved must be interpreted in the light of what is “fair.” There are many provisions in the Constitution whose “fairness” would be violently contested by some and upheld by others depending on their respective and varying interests and points of view. The constitutional provision here in question is mandatory and the question of its fairness or unfairness is not before this court for either consideration or determination.
This court’s plain duty is to see that the constitutional mandate has been obeyed by the Legislature. The state revenues must be obtained principally by taxes such as specific property taxes, ad valorem property taxes or excise or license taxes. Property presently bears the greatest weight of these taxes. It is the most unavoidable of all the taxes. Bearing this in mind the framers of our Constitution and the people of the State of Montana have put a brake upon the legislative power to create debts and liabilities and pledge taxes for their retirement, because if the money be segregated into funds such as are here provided then the burden of the general revenue is imposed upon the other tax sources and finally, if carried to the extreme here sanctioned, then the time may come when we reach that stage where we end with ad valorem property taxes being the only source of revenue for the general fund of the state. Surely, persons owning property subject to ad valorem taxation have as keen interest in the functions of government as have nontaxpayers. Certainly, they have more at stake than nontaxpayers. The incurrence of any state obligation, irrespective of how it is to be *37financed, vitally concerns such taxpayers whose roots are finally planted in this state through their property ownership. These responsible taxpaying citizens of this state should have the opportunity to exercise the right given to them by the Constitution to vote and pass upon these measures creating debts and liabilities far in excess of the one hundred thousand dollar limit set by the Constitution.
The mischief inherent in the majority opinion is that it leaves the ad valorem taxpayer defenseless to exercise control over the creation of debt and liabilities, yet places the principal burden of such debts and liabilities upon him.
There is yet another question left unanswered by the majority opinion herein. It is quite clear that the 1932 amendment to the Constitution was never designed nor proposed with the purpose or thought in mind of abrogating the result of the Diederieh case, supra. The purpose in view was to narrow the class of voters on debt or liability questions to those voters primarily and naturally interested in such questions. The holding in the Diederichs case was against the argument and contention that the words “levy a tax” meant an ad valorem tax. In my opinion the act of the Legislature here under consideration is governed and controlled by this court’s rulings in the Diederichs case. As said in the Diederichs ease, supra, 89 Mont. 205, 210, 296 Pac. 1033, 1034:
“Nor is it any concern of the court whether the act is expedient, wise, or unwise. State ex rel. Bonner v. Dixon, 59 Mont. 58, 195 Pac. 841. It is legislative power, not policy, that is drawn in question. And while we are mindful of the presumptions in favor of legislative acts, yet, being bound to support, protect, and defend the Constitution, when an enactment transgresses the constitutional limitations beyond a reasonable doubt, it is our solemn and sworn duty to so declare it. We are mindful, too, that the declaration of Constitutions are placed therein to be obeyed, and are not to be frittered away by construction. Less v. City of Butte, 28 Mont. 27, 72 Pac. 140, 61 L.R.A. 601, 98 Am. St. Rep. 545. Our duty in this respect remains the *38same no matter how urgent may be the desire to obtain money with which to carry on the much-needed program of highway construction. As stated by that able jurist, Chief Justice Taney of the United States Supreme Court, in the famous Dred Scott decision (Scott v. Sandford, 19 How. 393, 15 L. Ed. [691] 692): ‘No change in public opinion on questions of public policy can ever be given any weight in construing the provisions of a Constitution where the meaning is clear, for the adoption of a Constitution that might be deemed wise at one time and unwise at another would abrogate the judicial character of the court and make it the reflex of the popular opinion or passion of the day. ’ If the act in question authorizes the creation of a debt or liability in excess of $100,000 there are two available methods of accomplishing what the act proposes: one is to amend the Constitution, and the other is to obtain the consent of the people at an election for that purpose.”
In my opinion the act of the Legislature here under consideration is governed and controlled by this court’s decision in the Diederichs case. I am therefore unable to agree with the interpretation and construction accorded the above mandatory and prohibitory provision of the Constitution by the majority opinion herein. I would hold that this court’s opinion in the Diederichs ease is determinative of this appeal that the act in question is violative of the Constitution in that it wholly fails to provide for the submission to the vote of the people on the question of the creation of the debt and liability as is plainly provided for in and required by the provisions of section 2 of Article XIII of the Constitution of Montana.
In view of the foregoing I am unable to agree with the majority opinion herein.