Board of Com'rs of Sweetwater County, Wyo. v. Bernardin
| Decision Date | 31 December 1934 |
| Docket Number | 1091.,No. 1090,1090 |
| Citation | 74 F.2d 809 |
| Parties | BOARD OF COM'RS OF SWEETWATER COUNTY, WYO., et al. v. BERNARDIN et al. GREEN RIVER WATER WORKS CO., et al. v. SAME. |
| Court | U.S. Court of Appeals — Tenth Circuit |
In case No. 1090:
Mahlon E. Wilson, of Salt Lake City, Utah (Walter A. Muir and Joseph H. Galicich, both of Rock Springs, Wyo., and Robert C. Wilson, of Salt Lake City, Utah, on the brief), for appellants.
Wm. E. Mullen, of Cheyenne, Wyo., and John W. Kearns, of Chicago, Ill. (Clarence A. Swainson, of Cheyenne, Wyo., Bruce Johnstone, of Chicago, Ill., and Massey Holmes and John J. Henry, both of Kansas City, Mo., on the brief), for appellees.
In case No. 1091:
John U. Loomis, of Cheyenne, Wyo., for appellants.
Clarence A. Swainson, of Cheyenne, Wyo. (Bruce Johnstone and John W. Kearns, both of Chicago, Ill., Massey Holmes, of Kansas City, Mo., Wm. E. Mullen, of Cheyenne, Wyo., and John J. Henry, of Kansas City, Mo., on the brief), for appellees.
Before LEWIS and PHILLIPS, Circuit Judges, and JOHNSON, District Judge.
Bernardin was appointed receiver for the Central Coal & Coke Company by the District Court of the United States for the Western District of Missouri in an original proceeding commenced in that court. On January 27, 1931, an ancillary proceeding was instituted in the District Court of the United States for the District of Wyoming, and on February 2, 1931, Bernardin was appointed ancillary receiver for the properties of the Central Company located in that state. On May 8, 1931, the trustees under a first mortgage deed of trust dated June 1, 1922, and a supplementary mortgage dated March 1, 1924, upon the properties of the Central Company, given to secure a bond issue aggregating $2,076,200, filed a bill in equity to foreclose such mortgages. By consent of the parties the proceedings were consolidated and it was stipulated that Bernardin, as general receiver, should take charge of, conserve, and operate the properties for the benefit of the trustees and the general creditors.
Appropriate orders were made by the trial court permitting Bernardin to continue the business of the Central Company in Wyoming, which was primarily the production and sale of coal. The principal properties of the Central Company are located in Sweetwater county, Wyoming, and consist of coal lands and improvements thereon, personal property used in the operation of the mines, and coal produced therefrom. It also has under lease certain other coal properties which have improvements thereon.
In June, 1932, the county commissioners and county treasurer of Sweetwater county (hereinafter called claimants) filed a claim in the receivership proceedings for taxes levied against the Central Company for 1930 and 1931. Objections to the claim were filed by the trustees and receiver. Neither they nor the claimants sought a hearing. In March, 1933, another claim was filed by the claimants covering the taxes for 1930, 1931, and 1932. Objections were filed by the trustees and the receiver, and a hearing was had. The following is a statement of the taxes for which claim was made:
Lands
Taxes assessed in 1930 ..................... $ 18.47
" " " 1931 ..................... 21.40
" " " 1932 ..................... 14.93
__________
Total $ 54.80
Improvements on Lands
Taxes assessed in 1930 ..................... $ 1,040.80
" " " 1931 ..................... 1,146.36
" " " 1932 ..................... 1,037.32
__________
Total $ 3,224.48
Personal Property
Taxes assessed in 1930 ..................... $ 102.12
" " " 1931 ..................... 104.80
" " " 1932 ..................... 94.83
__________
Total $ 301.75
Gross Product (Coal)
Taxes assessed in 1930 ..................... $12,339.79
" " " 1931 ..................... 12,257.71
" " " 1932 ..................... 8,019.97
__________
Total $32,617.47
Interest and Penalties
Interest on delinquent taxes on lands
improvements and personalty for 1930 ..... $ 329.26
Interest on delinquent taxes on production
for 1930 ................................. 3,496.33
Interest on delinquent taxes on lands,
improvements and personal property
for 1931 ................................. 169.60
Interest on delinquent taxes on production
for 1931 ................................. 1,634.41
_________
Total $5,629.60
Gross product taxes are assessed each year based upon the coal produced during the preceding year.
The trial court held that the taxes assessed against the lands and improvements were a first lien on Central Company's properties and superior to the lien of the first mortgage; that such taxes and the gross product tax assessed in 1932 on coal produced in 1931 during the receivership, aggregating $11,299.25, should be paid forthwith by the receiver out of income of the properties in Wyoming, "inferior only to the costs of administration to be fixed by the court"; that the taxes assessed on the personal property, and the gross product tax assessed in 1930 and 1931 on coal produced in 1929 and 1930 before the receivership, aggregating $24,899.25, were valid claims against the receivership inferior to the lien of the first mortgage, and that they should be paid prior to any distribution to unsecured creditors out of any funds, monies, or properties not subject to the lien of the first mortgage; and that the claims for interest and penalties should be disallowed.
A decree was entered accordingly. Claimants have appealed. Section 115-2303, Wyo. Rev. St. 1931, in part provides:
"On the tenth day of November and the tenth day of May of each year, all unpaid taxes which are due and payable, according to the provisions of section 115-2301 shall become delinquent and draw interest at the rate of fifteen per centum per annum until paid or collected by distress or sale, and taxes upon real estate are hereby made a perpetual lien thereon against all persons or corporations, except the United States and this state, and taxes due from any person or corporation on personal property shall be a lien on real estate owned by such person or corporation, subject, however, to all prior existing valid liens."
By virtue of the above section, taxes on real estate become a first lien against such real estate, and taxes on personalty become a lien against real estate subject to prior encumbrances. See also Lobban v. State ex rel. Carpenter, 9 Wyo. 377, 64 P. 82; Ricketts v. Crewdson, 13 Wyo. 284, 79 P. 1042, 81 P. 1; Wakeman v. Board of Com'rs, 40 Wyo. 53, 274 P. 12.
The receiver and trustees contend that the gross product taxes assessed against the Central Company during 1930 and 1931, are taxes on the coal produced which is personal property, and hence are a lien on the real estate of the Central Company subject and inferior to the lien of the mortgages. The claimants insist that the gross product tax is a tax on mines and mining claims, measured by the value of the gross product thereof during the previous year, and a first lien thereon.
It is well settled that coal and other minerals, when severed from the realty in which they are found, become personalty. Forbes v. Gracey, 94 U. S. 762, 24 L. Ed. 313; Carpenter v. Shaw, 134 Okl. 29, 272 P. 393, reversed on other grounds 280 U. S. 363, 50 S. Ct. 121, 74 L. Ed. 478; Kelley v. Ohio Oil Co., 57 Ohio St. 317, 49 N. E. 399, 39 L. R. A. 765, 63 Am. St. Rep. 721. It is therefore necessary to determine whether the gross product tax is a tax on the minerals after they have been severed, or a tax on the realty measured by the gross mineral product thereof. This requires a construction of the pertinent constitutional and statutory provisions of Wyoming.
Article 15 of the Wyoming Constitution provides in part as follows:
To carry out the provisions of section 3, supra, the Wyoming Legislature enacted the following statute:
To continue reading
Request your trial
-
BancoKentucky Co.'s Receiver v. National Bank of Kentucky's Receiver
... ... from Circuit Court, Jefferson County, Chancery Branch, First ... Division; Churchill ... October 10, 1930, at a meeting of the board of directors of ... the Bank, attended by all ... Sweetwater County v. Bernardin, 10 Cir., 74 F.2d 809, ... ...
-
People of the State of California v. United States
...for the reasons stated in Radford Iron Co. v. Appalachian Power Co., 4 Cir., 62 F.2d 940, and in Board of Com'rs of Sweetwater County v. Bernardin, 10 Cir., 74 F.2d 809. See Moore's Federal Practice, 1st Ed. pp. I think that the order of the district court was right and should be affirmed. ......
-
Cascade Natural Gas Corporation v. El Paso Natural Gas Co People of State of California v. El Paso Natural Gas Co Southern California Edison Co v. El Paso Natural Gas Co, s. 4
...Court decided whether it violated § 7 of the Clayton Act, 38 Stat. 731, 15 U.S.C.A. § 18. 2. See Board of Comm'rs of Sweetwater County, Wyo. v. Bernardin, 10 Cir., 74 F.2d 809, 816; Dowdy v. Hawfield, 88 U.S.App.D.C. 241, 242, 189 F.2d 637, 3. In 1966 the Advisory Committee when making a re......
-
In re Tele-Tone Radio Corp., Etc.
...Wilson v. Dewey, 8 Cir., 1943, 133 F.2d 962; United States v. Sampsell, 9 Cir., 1946, 153 F.2d 731; Board of Com'rs of Sweetwaters County, Wyo. v. Bernardin, 10 Cir., 1934, 74 F.2d 809; In re Worden, D.C.W.D.Ky.1952, 107 F.Supp. 496. Compare Vol. 3 Collier on Bankruptcy, page 1840 (14th Ed.......