In order to determine, if possible, just what institutions the Legislature intended to burden with the fees mentioned in section 497 above, resort may profitably be had to the history of the legislation upon the subject. The first statute dealing with the subject of bank examination was reported by the Code commission, and adopted as a part of the Political Code (sections 490-496). Provision was made for the appointment of a state examiner, his salary fixed, and his duties defined. But no fees were required to be paid by the concerns examined by him, and there is not any reference in the act to foreign banking corporations doing business in the state, or to foreign or domestic building and loan associations. Apparently the purpose in the beginning was to subject to the supervision of the state examiner only domestic corporations and private persons doing a banking and loaning business. This statute was immediately superseded by the act of March 18, 1895 (Pol. Code, §§ 497-506). By section 498 of this act the duties of the state examiner are defined to be, among other things, "to visit each year without previous notice each of the banks, banking corporations and saving banks, investment and loan companies, incorporated under the laws of this state, or doing business under any law of the state concerning corporations, and to examine into their affairs," etc. Foreign banking institutions doing business in this state were then, for the first time, made subject to the supervision of the state examiner. By section 504 of the act above, there was created the "state examiner's fund," and the state sought to provide for the expenses of the state examiner's office by requiring every county to pay an amount based upon the classification of the counties, and "each bank, banking corporation, savings bank, investment or loan company incorporated under the laws of this state" was required to pay the sum of $50, and the balance of the expenses incurred was to be paid by the state from the general fund. In order to secure the payment of the amounts apportioned among the banking institutions mentioned, there was a penalty clause added in section 505 of the act as follows: "Any bank, banking corporation, savings bank, investment or loan company, incorporated under the laws of this state that shall fail or neglect to pay into the state treasury within ten days from and after the first day of January of each year, the sum mentioned in the section next preceding shall forfeit to the state ten dollars; for every day it shall so fail and neglect," etc. It is worthy of note that, while foreign as well as domestic banking institutions were made subject to the supervision of the state examiner by this act, foreign banking institutions were not required to pay any fee into the state examiner's fund, and were not subject to the penalty clause of the act; and

this is so notwithstanding the act declares in section 504 that the purpose of creating the state examiner's fund was "the just distribution of the expenses incurred in pursuance of this title." Mention is not made in this act of either foreign or domestic building and loan associations.

Notwithstanding the Code provisions had been superseded by the act of March 18, 1895, all of the provisions of article 11, c. 3, tit. 1, part 3, Pol. Code, embracing sections 490-506, were repealed by an act of March 4, 1897 (Laws 1897, p. 105), and in lieu of the provisions found in the Code there was substituted the act of 1897 above, containing sections numbered 490-499; but, so far as this case is concerned, no material difference is found between the act of 1895 and the act of 1897. The duties of the state examiner were enlarged somewhat and the amounts required to be paid into thestate examiner's fund by the several counties changed to a certain extent. Building and loan associations, both foreign and domestic, were brought under the supervision of the state examiner by the pro-visions of Senate Bill 64 (Laws 1897, p. 231); and by the provisions of section 497 (page 107) of this act of 1897 these associations are required to contribute to the state examiner's fund. However, in the penalty clause to the act, no provision is made for enforcing the contributions from foreign building and loan associations. They are required to contribute to the fund, but only "banks, banking corporations, savings banks, building and loan associations, investment or loan companies incorporated under the laws of this state are made subject to the penalty, which is provided in section 498 of the act." While from March 18, 1895, foreign banking institutions doing business in this state were subject to supervision by the state examiner, certainly no one would contend that prior to 1903, at least, they were required to contribute to the state examiner's fund or were subject to the penalties prescribed for failure to pay the fees required from domestic banking concerns. The act of 1897 above was amended by an act approved March 6, 1903 (Laws 1903. p. 184, c. 100). This later act apportioned the amounts to be paid into the state examiner's fund by the banking institutions mentioned according to the amount of capital stock, but again restricted the contributors to the fund to banks, banking corporations, savings banks, investment, and loan companies incorporated under the laws of this state, and to foreign and domestic building and loan associations; and now, as if to correct the oversight in the penalty clause of the act of 1897 above, this act contains a penalty clause sufficiently broad in its terms to compel contributions from every institution which was required to make the same, and banks, banking corporations, savings banks, building and loan associations, in

vestment and loan companies, incorporated under the laws of this state, or doing business under any law of this state concerning corporations, are made subject to the penalties prescribed. The phrase "or doing business under any law of this state concerning corporations" is inserted in the penalty clause for the first time. But to whom does it refer? To all foreign corporations doing business under the laws of this state? By express terms its operation is limited to only such as fail or neglect to pay the sums due as specified in the section of the act preceding the penalty clause. From whom were the sums mentioned in the preceding section due? From "each bank, banking corporation, savings bank, investment and loan company, incorporated under the laws of this state." and from foreign and domestic building and loan associations, and from no one else. would seem perfectly clear, then, that the only purpose of inserting the phrase above in the penalty clause of this act was to enforce contributions from foreign building and loan associations which were likely to escape by reason of the absence of this phrase from the penalty clause of the act of 1897 above. When we consider that the Legislature by the provisions of the act of March 18, 1895, made both foreign and domestic banking institutions subject to the supervisions of the state examiner, but only required domestic banking concerns to contribute to the expense of such supervision, and these provisions were considered by the Legislature of 1897 and the same plan followed, foreign banking institutions being still exempt from the payment of the fees required of domestic banking concerns, and that these provisions of the law were again considered in 1903 and the same general plan retained, and the Legislature, as if to emphasize its intention in the matter, declared again that contributions to the fund should be made by "each bank, banking corporation, savings bank, investment and loan company, incorporated under the laws of this state," and foreign and domestic building and loan associations doing business in this state, it seems impossible to reach any other conclusion than that foreign banking concerns doing business in this state were not intended to be included within the provisions of section 497 of the act of 1903; and this respondent cannot, therefore, be held liable for the penalties mentioned in section 498 of that act.

But the Attorney General insists that the exemption of foreign banking concerns from the operation of the provisions of section 497 above renders the entire act of 1903 void. Whether this result follows need not be determined. We have held that this respondent is not liable to pay the fee mentioned in section 497 above, and therefore the state cannot maintain its first contention. If the entire act is void, the state could not collect the fee from this respondent, so

that no useful purpose would be served in determining whether or not this exemption of foreign banking concerns from the operation of the law invalidates the entire act: and following a rule universally recognized by courts we will not decide the constitutionality of a statute unless such decision is necessary to a determination of the case.

2. The state's second contention is that this respondent is subject to the provisions of the act of the Ninth Legislative Assembly, approved March 7, 1905 (chapter 104, p. 232, Laws 1905). This act is entitled "An act regulating foreign corporations and joint stock companies doing a banking business within the state of Montana, and prescribing penalties and punishments for violations of the provisions thereof." The purpose of this act is to regulate foreign banking concerns doing business in this state. Their affairs are made subject to examination by the state examiner. They are required to make certain reports and to pay certain fees into the state examiner's fund. Severe penalties are prescribed for the violation of the provisions of the act. After defining foreign banking concerns as understood in the act, section 15 contains this proviso: "Provided, that this act shall not apply to any corporation which at the time of its approval may be openly and lawfully engaged in banking at a known and fixed place of business within this state." It is conceded that this respondent was at the time of the approval of this act a foreign banking corporation, openly and lawfully engaged in banking at a known and fixed place of business within this state. But the attorney general insists that this proviso is invalid as in direct conflict with section 11, art. 15, of the Constitution; and Criswell v. Montana Central Ry. Co., 18 Mont. 167, 44 Pac. 525, 33 L. R. A. 554, is cited in support of this contention. For the purpose of this argument only, we may assume, without deciding, that this contention made by the Attorney General is correct. This, then, leads to a consideration of the question: May that proviso, if invalid, be eliminated and the remainder of the act premitted to stand in full force and effect? The result of such a holding would be to include within the provisions of the act this respondent. which is not subject to such provisions as the act was passed and approved.

In Northwestern M. Life Ins. Co. v. Lewis & Clarke County, 28 Mont. 484, 72 Pac. 982, 98 Am. St. Rep. 572, this court quoted with approval and designated it as an elementary rule of law, the canon of construction in a case of this character, as follows: "When the valid and invalid portions of the legislative enactment are capable of being separated, and the valid part is a complete act, and not dependent upon that which is void, the latter alone will be rejected, and the rest sustained, if it is manifest that the void part was not an inducement to the Legisla

ture to pass the part which is valid; but, if it is manifest from an inspection of the law itself that the invalid portion formed an inducement to its passage, the entire act will fall." And in that case it was held that the invalid portion might be eliminated from section 681 of the Civil Code and the remaining portion of the section be operative, and this for the reason that it could not possibly be said that the invalid portion in any sense formed an inducement or compensation for the enactment into law of the provisions of the section, since the section was merely the legislative response to a constitutional mandate. But the decision in that case has no application here. The Legislature in this instance was not responding to any demand of the Constitution in enacting chapter 104 above. May we say, then, that the Legislature would have enacted the provisions of chapter 104 without the proviso in section 15? In language too plain to be misunderstood the Legislature in effect said: "We intend to form into one class foreign banking institutions which commence business after the approval of this act, and every one in that class shall be subject to the provisions of this act; and we intend to form another class of foreign banking corporations, composed of those which are already in this state doing business at a known and fixed place of business at the time this act is approved, and no one of that class shall be subject to these provisions." The legislative intention is expressed in unmistakable language, but we are asked now to eliminate the proviso from section 15 above, and thereby make all the other provisions of the act applicable alike to both classes. Severe penalties are prescribed for a violation of the provisions of chapter 104. The direct and immediate effect of sustaining this contention made by the Attorney General, then, is to subject this respondent and other foreign banking concerns similarly situated to the penalties prescribed by the act, a result which the Legislature particularly declares was not contemplated or desired. We certainly cannot say that it is manifest that the proviso was not an inducement to the Legislature to pass the act. We cannot substitute the judgment of the court for that of the Legislature as to its policy or as to the wisdom of the legislation. Speaking of the principle for which the Attorney General now contends, the Supreme Court of the United States. in Spraigue v. Thompson, 118 U. S. 90, 6 Sup. Ct. 988, 30 L. Ed. 115, said: "But the insuperable difficulty with the application of that principle of construction to the present instance is that by rejecting the exceptions intended by the Legislature of Georgia the statute is made to enact what confessedly the Legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what any one can say it would have enacted in view of the illegality of the exceptions."

In Connolly & Dee v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679, the Supreme Court of the United States announced the rule of construction applicable here as follows: "If different sections of a statute are independent of each other, that which is unconstitutional may be disregarded, and valid sections may stand and be enforced. But, if an obnoxious section is of such import that the other sections without it would cause results not contemplated or desired by the Legislature, then the entire act must be held inoperative." These decisions were cited with approval by this court in State v. Cudahy Packing Co., 33 Mont., 82 Pac. 833, where it is said: "Courts may not by process of interpolation or elimination make statutory provisions apply or extend to subjects not falling clearly within their terms; for, by so doing, they would to this extent usurp the functions of the law-making department of the government."

This court may not, then, by arbitrarily striking out the proviso from section. 15, so enlarge the scope of chapter 104 above as to make this respondent amenable to its provisions, for such a result was plainly never contemplated by the Legislature. If the proviso in section 15 is invalid, the whole of chapter 104 must fall with it. But, in any event, the state cannot maintain its second contention, for this respondent by the terms of the proviso is exempt from the provisions of the act, while, if the act itself is invalid,. it would not be called upon to contribute anything to the state examiner's fund.

We find no error in the record. The judgment is affirmed.

Pol. Code, § 3695, subd. 8, relating to assessment for taxation, providing for a deduction of deposits in the hands of private bankers from moneys on hand and in transit, and providing that only deposits other than current deposits may be deducted from bills and accounts receivable and other credits, and section 3701, authorizing any taxpayer to deduct from his credits all debts then owing to him, being in direct conflict, the latter section prevails, under section 5165, providing that if conflicting provisions are found in different sections of the same chapter or article. the last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article.

2. SAME-CONSTITUTIONAL LAW.

Pol. Code, § 3695, subd. 8, relating to assessment for taxation, authorizing private bankers to deduct deposits from moneys on hand, is violative of Const. art. 12, § 11. requiring taxes on the same class of subjects to be uniform,

and section 16, providing that all property shall be assessed in the manner prescribed by law, except as otherwise provided in the Constitution. 3. SAME-DEMAND FOR DEDUCTION.

That a bank demanded that in assessing its property for taxation its deposits be deducted from the amount of moneys on hand and in transit as provided in Pol. Code, § 3695, subd. 8, does not affect its right to have its indebtedness deducted from its credits, as authorized by section 3701.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 641-642.]

4. SAME-WHAT ARE CREDITS.

Moneys due a bank from other banks are credits within Pol. Code, § 3680, defining credits as solvent debts, secured or insecured, owing to a person.

5. SAME.

That a bank possessed money and real estate subject to taxation, but which was not assessed because of the mistaken deduction of debts, does not affect the question of its liability under an assessment of credits from which they were entitled to have the debts deducted. 6. SAME INJUNCTION AGAINST ENFORCEMENT OF TAX.

That a bank failed to pay or tender the taxes on property it held subject to taxation, but which had not been assessed, was not a failure to do equity depriving it of its right to injunction against the enforcement of an illegal tax, since no tax was due on the property not assessed.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 1243, 1244.]

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

Action by W. A. Clark and another for injunction against James Maher, treasurer of Silver Bow county, and another. From a judgment in favor of defendants, plaintiffs appeal. Reversed and remanded.

W. M. Bickford and Geo. F. Shelton, for appellants. Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for respondents.

HOLLOWAY, J. Between the first Monday in March, 1904, and the 1st of July following, the assessor of Silver Bow county required from W. A. Clark & Bro., copartners engaged in business as private bankers in Silver Bow county, a statement showing all their real and personal property subject to taxes for that year. They returned the list of property which showed real estate of the value of $127,610, which valuation was subsequently raised by the board of equalization to $132,610, and personal property listed substantially as follows: Moneys on hand or in transit, $403,869.27; due from other banks, bankers, etc., subject to draft, $1,203.059.47; bills and accounts receivable and other credits, $1,657,533.52; deposits made by other persons, $3.686,397.89. They asked that the amount of debts (deposits) be deducted from the aggregate amount of moneys and credits, including money due from other banks, bankers, etc., and stated that the list was furnished pursuant to section 3695 of the Political Code. On July 9th following, Clark & Bro, received from the assessor a copy of the list so furnished by them, with a statement

87 P.-18

by the assessor attached thereto, that under the law the only deductions which could be made from bills and accounts receivable are accounts payable other than current deposits, and, as no such accounts had been returned, he, the assessor, had assessed to them the amount of bills and accounts receivable, $1,657,550, less the value of real estate returned, $127,610, leaving the net value of personal property assessed to them, $1,529,9-10. Application was made to the board of equalization for relief, which was denied. The taxes levied upon the real estate were paid before November 30, 1904; but the taxes levied upon the solvent credits-$1,529,940were not paid, and, on December 19, 1904, the county treasurer published the delinquent tax list, including therein this item: "Clark, W. A. & Bro., Bankers-North 224 feet, lot 1, block 29, Butte Townsite, sold for taxes

solvent credits, including deposits in bank, $27,937.20." To this delinquent tax list was attached the usual notice by the treasurer that, unless the taxes were paid, the real estate upon which such taxes were a lien would be sold to satisfy the same on January 9, 1905. Prior to the last date this action was commenced. An amended complaint was filed setting forth the facts herein mentioned and asking that the county treasurer be restrained from selling the real estate mentioned above. To this amended complaint the defendant county treasurer interposed a general demurrer, which was sustained by the court, and, the plaintiffs having elected to stand on their amended complaint, judgment was entered in favor of the defendant, from which judgment the plaintiffs appealed.

Apparently W. A. Clark & Bro. in returning their list to the assessor proceeded upon the theory that they could deduct their debts. from moneys on hand under those provisions. of subdivision 8, section 3695, above, allowing such deduction to be made, and the remainder of their debts they could deduct from their solvent credits under the provisions of section 3701 of the same Code, and thereby eliminate for the purpose of assessment all their personal property. The assessor and board of equalization apparently proceeded upon the theory that those provisions of subdivision 8, section 3695 above, only, were applicable to appellants' case, and, therefore, their solvent credits were liable for taxation without allowing any deduction for debts due by them. In this court, however, appellants practically concede that the provisions of section 3701 only are applicable to this case. This action was commenced prior to the enactment of the amendment to section 3695. Sess. Laws 1905, p. 54, c. 25. It is to be observed that there is a direct conflict between the provisions of section 3701. above, and that portion of subdivision 8 of section 3695, which provides for a deduction of debts (deposits) from money on hand and in transit, and which further provides that