Belknap Realty Co. v. Simineo

• Citation: 215 P. 659,67 Mont. 359
• Decision Date: 21 May 1923
• Docket Number: 5188.
• Parties: BELKNAP REALTY CO. v. SIMINEO, COUNTY TREASURER, ET AL.
• Court: Montana Supreme Court

215 P. 659

67 Mont. 359

BELKNAP REALTY CO. v. SIMINEO, COUNTY TREASURER, ET AL.

No. 5188.

Supreme Court of Montana

May 21, 1923

Appeal from District Court, Yellowstone County; A. C. Spencer Judge.

Suit to recover taxes paid under protest by the Belknap Realty Company against J. S. Simineo, as County Treasurer of Yellowstone County, and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

E. E Collins, Co. Atty., of Billings, W. D. Rankin, Atty. Gen and Frank Woody, Asst. Atty. Gen., for appellants.

STARK J.

In this action the plaintiff, a Montana corporation, seeks to recover from the defendants the sum of $436.72, with interest, for taxes alleged by it to have been paid under protest.

After setting forth the corporate capacity of the plaintiff and defendant county and the official position of the defendant treasurer, the complaint alleges that plaintiff is the owner of certain lots located in the city of Billings, which the county assessor in making the assessment for 1921 valued at $163,700, when in truth and fact their actual value did not exceed $140,000; that the valuation thereof for assessment purposes was fixed at $49,110, when it should have been fixed at not to exceed $42,000; and "that when the board of equalization of Yellowstone county, Mont., was in session for the year 1921, the plaintiff appeared before said board and objected to the valuation of said lots and improvements thereon as so fixed by the assessor and asked that the same be reduced to the actual value thereof," but that the board refused to make the reduction. It is then alleged that the total taxes on the excess valuation was $436.72, which amount plaintiff paid to defendant under a written protest on November 28, 1921, and that because of the excessive valuation, the county commissioners had no authority to levy any tax upon any such excess valuation; that such levy was illegal and the defendants had no legal authority to collect the amount so paid under protest; and that the plaintiff is entitled to recover the same with interest.

The defendants filed a general demurrer to the complaint, which was overruled; whereupon they filed an answer. The case was tried to a jury and resulted in a verdict in favor of the plaintiff. From the judgment entered thereon, defendants have appealed. Numerous errors are assigned, but it is only necessary to consider the one which raises the question of the sufficiency of the complaint.

By section 2048, Revised Codes of 1921, the county assessor is required to prepare an assessment book in which must be listed, amongst other things, a description of city lots with the names of the owners, together with the value of the same and the improvements thereon.

Sections 2113 to 2121, inclusive, Revised Codes 1921, constitute the board of county commissioners a board of equalization, which is required to meet on the third Monday of July of each year to equalize the assessment of property in the county, and it is authorized, after giving notice, to increase or lower any assessment in the assessment book prepared by the assessor so as to make the assessment conform to the true value of the property in money.

Section 2115 provides as follows:

"No reduction must be made in the valuation of property, unless the party affected thereby or his agent makes and files with the board a written application therefor, verified by his oath, showing the facts upon which it is claimed such reduction should be made."

In the case of Barrett v. Shannon, 19 Mont. 397, 48 P. 746, which was also an action to recover from the county treasurer taxes which had been paid under protest, the complaint contained an allegation similar to the one above quoted, and this court, in holdin that it was fatally defective, after quoting the above section, which was then section 3782, Political Code of 1895, said:

"Before the plaintiff could be entitled to relief in any action, his complaint should show a compliance with this essential condition precedent. In any action, before he would be entitled to relief, the plaintiff would surely be required to prove that he had made this application in writing, under oath, as required by said section of the Code. If it be essential to prove it, it must follow as a natural consequence that it is necessary for plaintiff to allege it in his complaint. There is no such allegation in the complaint, and on account of this omission the complaint is bad, and the general demurrer thereto should have been sustained."

Upon the authority of that case alone it is clear that the complaint in this action does not state a cause of action and that the court erred in overruling the defendants' demurrer thereto.

But there are still other reasons why the complaint in this case fails to state a cause of action. In 1916, section 15, art 12, of the state Constitution was amended and the powers of the state board of equalization extended so as to give it authority to "adjust and equalize the valuation of taxable property among the several counties and the different classes of taxable property in the same and in the several counties and between individual taxpayers; supervise and review the acts of county assessors and county...