Bd. of Com'Rs of Custer Co. v. Bd. of Com'Rs of Yellowstone Co.

• Decision Date: 25 January 1886
• Citation: 6 Mont. 39
• Parties: BOARD OF COM'RS OF CUSTER CO. v. BOARD OF COM'RS OF YELLOWSTONE CO.
• Court: Montana Supreme Court

6 Mont. 39

BOARD OF COM'RS OF CUSTER CO.

v.BOARD OF COM'RS OF YELLOWSTONE CO.

Supreme Court of the Territory of Montana.

Filed January 25, 1886.

Appeal from First district, Gallatin county.

Strevelle & Garlock, for appellant.

William Wallace, Jr., associated with E. W. & J. K. Toole, and William Wallace, Jr., and Sanders, Cullen & Sanders, for respondent.

GALBRAITH, J.

The legislative assembly of the territory of Montana, by an act approved February 26, 1883, erected certain portions of what had formerly formed a part of Custer county and a small portion of Gallatin county into a new county, to be called the “County of Yellowstone,” the respondent in this case. It was provided in the act that it should take effect from and after its passage. Section 1 contained this provision:

“All laws of a general nature applicable to the several counties of this territory, and the officers thereof, are hereby made applicable to the county of Yellowstone, and the officers who may be hereafter elected or appointed therein, except as otherwise provided in this act.”

Section 2 of this act provided-

“That the indebtedness of the county of Custer, as the same shall exist on the first day of March, A. D. 1883, shall be apportioned between said county and the county of Yellowstone by first deducting from said indebtedness all money on hand in the treasury of said county of Custer, and all moneys belonging to said county, in the possession or under the control of the county treasurer; also deducting the cost of erecting and furnishing court-house, county jail, poor-house, and also the valuation of all real estate owned by said county, as shown by the books of the county commissioners. The remainder of the indebtedness shall be divided between said counties in proportion as the taxable property in each county bears to the entire taxable property of the present county of Custer, taking as a standard thereof the assessment for the year 1882.”

Section 3 was as follows:

“The county commissioners of Custer and Yellowstone counties shall meet at the court-house in the town of Miles on the first Monday of March, A. D. 1883, to adjust the indebtedness between said counties upon the basis named in section 2 of this act. When adjusted, if the county of Yellowstone shall be liable for any part thereof, it is hereby made the duty of the county commissioners of said last-named county to cause to be issued to the county commissioners of Custer county a warrant or warrants therefor, which, in the aggregate, shall equal the amount of said indebtedness for which the county of Yellowstone shall, under the adjustment mentioned, be liable; and the said warrant or warrants, if not paid on presentation to the treasurer of Yellowstone county, shall be by said treasurer indorsed, ‘Not paid for want of funds in the treasury,’ and shall thereafter bear like interest as other county warrants, indorsed in like manner, issued prior to March 6, 1883.”

Section 4 provides as follows:

“An election shall be held in the county of Yellowstone on the second Monday of April, in the year 1883, *** for the election of the following officers, to-wit: *** three county commissioners.”

Section 5 appointed certain persons commissioners of Yellowstone county, who, upon giving bond and taking the oath required by law of the commissioners of other counties in the territory, should exercise the duties of commissioners until their successors should be elected and qualified, as provided in section 4.

This action was brought to compel the payment by the respondent of the indebtedness, alleged to be due from it to the appellant, caused by virtue of the above act. The appeal is from the judgment rendered in consequence of the demurrer to the complaint having been sustained, and the appellant having refused to amend its complaint, and having declared its intention to rely and stand thereon. The complaint was in substance as follows:

It relates the creation of Yellowstone county, as provided for by the above act; and that the officers provided for by section 4 thereof were elected and qualified. That on the first day of March, 1883, the indebtedness of Custer county was $241,516.20. That on the first day of March, 1883, the money in the treasury and in the possession of the appellant was $9,896.71. That on March 1, 1883, the public buildings within Custer county, and belonging to it, and the cost for the erection and furnishing of the same, as shown by the books of the county commissioners, were as follows: One court-house, which cost to erect and furnish, $38,940.50; one jail, which cost to erect and furnish, $14,350; one poor-house, which cost to erect and furnish, $9,904.99. That on March 1, 1883, all the real estate belonging to appellant, valued as shown by the books of the county commissioners, was as follows: Real estate on which the court-house and buildings connected therewith are situate, valued at $2,800; real estate upon which the county poor-house is situate, and buildings connected with such poor-house, valued at $1,634. That the indebtedness of the appellant on the first of March, 1883, after deducting the money in the treasury of, and that belonging to, the appellant,-the sums which it cost to erect and furnish the court-house, poor-house, and jail, and the valuation of the real estate of the appellant, as above set forth,-remaining to be apportioned between the appellant and respondent was $164,000. That the taxable property of the county of Custer for the year 1882, as shown by the assessment of the county for that year, was the sum of $3,844,580.

The complaint then alleges facts which show that, taking this assessment as a standard, as provided in section 2 of the act, the portion of the above indebtedness, viz., $164,000, which it is alleged should be apportioned to Yellowstone county as provided for by said section was $39,058.24, and that which it is alleged should be apportioned to Custer county was $124,941.76. But the complaint further alleges that, of the above assessment of Custer county for 1882, $2,460,000 thereof was property belonging to the Northern Pacific Railroad Company, a corporation organized and established by an act of congress entitled, “An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound on the Pacific coast by the northern route,” which said act was approved July 2, 1864. That this property consisted, as shown by the assessment, of 246 miles of railroad, with rolling-stock, buildings, etc., which were built, constructed, and used upon the right of way granted by the above act of congress to the railroad company, and that this property was not assessable or taxable within the county of Custer in 1882. That of this property, belonging to railroad, $430,000 was within that portion of Custer county which was detached therefrom by virtue of the act of February 26, 1883, and placed within the bounds of the county of Yellowstone; and $2,030,000 thereof was in that portion of Custer county which remained after the creation of Yellowstone county.

It is then alleged that, if this property belonging to the railroad be excluded from the assessment of Custer county for 1882, there would remain as the true assessment of Custer county for that year the sum of $1,384,580. That of this amount there was in that portion of Custer county detached therefrom to aid in the construction of Yellowstone county the sum of $485,841, and within the county of Custer, as it existed after the creation of Yellowstone county, the sum of $898,739.

Facts are then alleged which, it is claimed, show that, after the deduction of that portion of the assessment which was made upon the property of the railroad, the portion of the debt of $164,000 of Custer county, on the first of March, 1883, as above stated, which should be apportioned to Yellowstone county was $57,547.60, and that to be apportioned to Custer county, as it existed after the division, was $106,452.46.

It is also alleged that after the approval of the act of February 26, 1883, the board of commissioners of the appellant, at different times, requested the board of commissioners of respondent to meet and apportion the said indebtedness. That by a resolution of the commissioners of the appellant, adopted at a meeting of such board held at the county-seat of the appellant on the sixth of September, 1883, of which the board of commissioners of the respondent had due notice, the board of commissioners of the respondent were requested to meet the board of commissioners of appellant at the court-house at such county-seat on the eighth of October, 1883, for the purpose of adjusting and apportioning the said indebtedness of the two counties, as required by law. That, although the board of commissioners of appellant were in session for that purpose at the time and place mentioned in the resolution, the board of commissioners of the respondent neglected and refused to meet with them, and no one of the commissioners of the appellant met the commissioners of the respondent at such time and place. That on the eleventh of March, 1884, two of the commissioners of the respondent met two of the appellant's commissioners at the court-house at the county-seat of appellant for the purpose of apportioning the above indebtedness; but that the board of commissioners of the respondent did then and there wholly neglect and refuse to apportion, or to assist in apportioning, the said indebtedness. That the respondent has ever since refused, and does now still refuse, to apportion with the appellant the said indebtedness, as required by law, or to pay the same or any part thereof. That the respondent has withheld the above sum from the appellant by unreasonable and vexatious delay since eighth of October, 1883.

Judgment is therefore demanded for the above sum of $57,547.60, with interest at the lawful rate from the eighth of October, 1883. That the said respondent...