Mr. Albert J. Galen, Attorney General, and Mr. E. M. Hall, Assistant Attorney General, for Appellant.

The legislature is not restricted by the Constitution, and therefore has full authority to impose a license tax either for regulation or for revenue, and the money received may be divided between the state and the counties. (State v. French, 17 Mont. 54, 41 Pac. 1078, 30 L. R. A. 415; State v. Camp Sing, 18 Mont. 128, 56 Am. St. Rep. 551, 44 Pac. 516, 32 L. R. A. 635; State v. McKinney, 29 Mont. 375, 74 Pac. 1095; 25 Cyc. 599, 603; In re Lipschitz (N. D.), 95 N. W. 154; Cooley on Taxation, 3d ed., p. 1135.)

"The question of classification of objects upon which a license fee is imposed is purely legislative, and in the absence of abuse will not be interfered with by the court." (State v. McKinney, supra; 25 Cyc. 606; Stull v. De Mattos, 23 Wash. 71, 62 Pac. 451, 51 L. R. A. 892; Garfinkle v. Sullivan, 37 Wash. 650, 80 Pac. 188; In re Watson, 17 S. D. 486, 97 N. W. 463.)

Messrs. Wight & Pew, for Respondent.

A classification for any purpose must be reasonable and must bear some well-defined relation to the purpose of the law. (Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed, 220; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679; Gulf Ry. Co. v. Ellis, 165 U. S. 155, 17 Sup. Ct. 255, 41 L. Ed. 666; State v. Cudahy Packing Co., 33 Mont. 179, 114 Am. St. Rep. 804, 82 Pac. 833; see, also, City of Billings v. Cook, 35 Mont. 95, 119 Am. St. Rep. 845, 88 Pac. 656.)

Section 2776, Revised Codes, attempts a classification which is arbitrary as well as unjust. (State v. Loomis, 115 Mo. 307, 22 S. W. 350, 21 L. R. A. 789; State v. Garbroski, 111 Iowa, 496, 82 Am. St. Rep. 524, 82 N. W. 959, 56 L. R. A. 570; Ex parte Jentsch, 112 Cal. 468, 44 Pac. 803, 32 L. R. A. 664; City of Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604; Darcy v. City of San Jose, 104 Cal. 642, 38 Pac. 500; State v. Haun, 61 Kan. 146, 59 Pac. 340, 47 L. R. A. 369; State ex rel. Chapel v. Justus,

Mont., Vol. 39-5

90 Minn. 474, 97 N. W. 124; Kellyville Coal Co. v. Harrier, 207 Ill. 624, 99 Am. St. Rep. 240, 69 N. E. 927; Brown & Allen v. Jacobs Co., 115 Ga. 429, 90 Am. St. Rep. 126, 41 S. E. 553, 57 L. R. A. 548; Magoun v. Illinois Savings Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037; Standard Oil Co. v. Spartanburg, 66 S. C. 37, 44 S. E. 377.) In Montgomery v. Kelly, 142 Ala. 552, 110 Am. St. Rep. 43, 38 South. 67, 70 L. R. A. 209, an ordinance imposing a license on merchants using trading stamps was held void. In State ex rel, Wyatt v. Ashbrook, 154 Mo. 375, 77 Am. St. Rep. 765, 55 S. W. 627, 48 L. R. A. 265, a law fixing a discriminative license tax upon department stores was held unconstitutional. (See, also, In re Abel, 10 Idaho, 288, 77 Pac. 621; Ex parte Deeds, 75 Ark. 542, 87 S. W. 1030; City of Laurens v. Anderson, 75 S. C. 62, 117 Am. St. Rep. 885, 55 S. E. 136.)

Section 8602, Revised Codes, provides that any person doing business without a license where a license is required by law is guilty of a misdemeanor. The penalty for misdemeanor is not to exceed six months in jail or a fine of not more than $500, or both. (Sec. 8111.) A penal statute is to be strictly construed, and this act comes within that rule. "A revenue law requiring peddlers to obtain a license, being penal in so far as it imposes a penalty for a violation of its provisions, must be strictly construed." (Kloss v. Commonwealth, 103 Va. 864, 49 S. E. 655.)

MR. JUSTICE SMITH delivered the opinion of the court.

Plaintiff brought this action in the district court of Lewis and Clark county to recover the sum of $10, which was exacted of him by the defendant as treasurer of that county. The complaint alleges: That plaintiff is engaged in what may be termed the hand laundry business; that there are steam laundries in operation in the county, the proprietors of which are not required to pay a license; that there is no difference between the plaintiff's business and that of a steam laundry, "except that the plaintiff employs different agencies in the said business; that is to say, this plaintiff uses only hand power for

the propulsion and operation of the implements and appliances used in his business, while said (other) persons use steam power and employ both males and females in said laundry business"; that in addition to the steam laundries there are women engaged in the laundry business in the county "where not more than two women are engaged or employed or kept at work," which business is the same as that of the plaintiff; that said women are not required to pay any money for the privilege of carrying on said business; that said license was demanded by the defendant treasurer by virtue of section 2776, Revised Codes, and was collected solely for the purpose of defraying the general governmental expenses of Lewis and Clark county and the state of Montana; that section 2776, Revised Codes, is the only law on the statute books requiring the payment of a license for the privilege of conducting the laundry business. The section referred to reads as follows: "Every person engaged in laundry business, other than the steam laundry business shall pay a license of Ten Dollars per quarter, provided that this Act shall not apply to the women engaged in the laundry business, where not more than two women are engaged or employed or kept at work, and said license shall be for one place of business only." The district court overruled a general demurrer to the complaint, and afterward, in default of an answer, entered judgment in favor of the plaintiff. From that judgment the defendant treasurer has appealed. It is claimed by the plaintiff that he is denied the equal protection of the laws guaranteed him by the Constitution of the United States.

1. Let us first assume, for the purposes of this inquiry, without deciding, that section 2776 classifies those engaged in the laundry business. This question was expressly reserved in State ex rel. Sam Toi v. French, 17 Mont. 54, 41 Pac. 1078, 30 L. R. A. 415. We assume, also, that this license tax is imposed for the sole purpose of raising revenue for general governmental purposes. It is so alleged in the complaint, and the court had little doubt of the fact when the opinion in State ex rel. Sam Toi v. French, supra, was prepared, under a somewhat similar statute.

We may not declare this Act unconstitutional unless it is clearly so. (State v. Camp Sing, 18 Mont. 128, 56 Am. St. Rep. 551, 44 Pac. 516, 32 L. R. A. 635; State ex rel. Quintin v. Edwards, 38 Mont. 250, 99 Pac. 940.) The legislature is presumed to have exercised a reasonable discretion in making the classification, and the courts ought not to interfere with the action of this co-ordinate branch of the government, until the plaintiff, upon whom rests the burden of proof, clearly shows that he is denied the equal protection of the laws. (State v. McKinney, 29 Mont. 375, 74 Pac. 1095.) Every intendment is in favor of the validity of the legislative action. In other words, the classification is presumed to be reasonable. (See City of Fayetteville v. Carter, 52 Ark. 301, 12 S. W. 573, 6 L. R. A. 509; Van Hook v. City of Selma, 70 Ala. 361, 45 Am. Rep. 85, and Littlefield v. State, 42 Neb. 223, 47 Am. St. Rep. 697, 60 N. W. 724, 28 L. R. A. 588, where somewhat analogous presumptions were considered.) If on the face of the measure the classification appears to be arbitrary and unreasonable, or unjust, or no classification at all, a different question is presented. Even assuming that section 2776, Revised Codes, classifies laundries, we are not disposed to hold that the classification made is manifestly arbitrary or unreasonable. It certainly is not obviously so on the face of it. If such classification is made, then steam laundries are placed in one class and hand laundries in another. We do not regard the exemption of women from the operation of the statute, in certain cases, as amounting to a classification, for the reasons hereinafter stated. The fact that both steam laundries and hand laundries obtain the same results is not controlling. For aught we know there may be good and sufficient reasons for believing that the difference between the two classes, based upon the power employed in conducting the business, is fundamental and all-pervading. We cannot say that this classification is any more arbitrary or unwarrantable than would be a division of gas-lighting plants and electric-lighting plants into two classes. Assuming that it might appear to the members of this court that steam laundries should pay a larger

license fee than hand laundries, would the court be justified in declaring a statute unconstitutional which exacted the same fee from both? Or suppose the matter were reversed, and the legislature should provide that only steam laundries must pay a license, could it then be successfully contended that persons engaged in that business were discriminated against and denied. the equal protection of the laws? We do not think so. The legislature probably had some good reason for exempting steam laundry proprietors from the payment of license, either permanently, or for the time being. In the case of East St. Louis V. Wehrung, 46 Ill. 392, it was held that an ordinance which did not "discriminate as between persons having equal facilities for profit" was not objectionable. (See, also, Tulloss v. City of Sedan, 31 Kan. 165, 1 Pac. 285; City of Cherokee v. For, 34 Kan. 16, 7 Pac. 625.) The supreme court of the United States, in Magoun v. Illinois T. & S. Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037, said: "There is no precise application of the rule of reasonableness of classification, and the rule of equality permits many practical inequalities; and necessarily so. In a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things." (See, also, Clark v. Titusville, 184 U. S. 329, 22 Sup. Ct. 382, 46 L. Ed. 569.)

But we doubt whether this statute attempts to classify laundries. The Constitution gives the power to impose a license tax upon persons doing business in this state. (Section 1, Article XII, Constitution.) The legislature is not required to tax all occupations equally or uniformly. (State ex rel. Sam Toi v. French, 17 Mont. 54, 41 Pac. 1078, 30 L. R. A. 415.) Therefore, it appears to follow that the legislature has power to single out the proprietors of hand laundries and compel them. to pay a license, and if such license falls upon all hand laundry proprietors alike, no one of them is aggrieved. No suggestion is made that this law is not uniform as to all hand laundry proprietors, either on its face or in its application, except in so far as it exempts certain women, and in all other respects it