Board of Com'rs of Johnson County v. Searight Cattle Co.

• Decision Date: 11 October 1892
• Citation: 3 Wyo. 777,31 P. 268
• Parties: BOARD OF COM'RS OF JOHNSON COUNTY v. SEARIGHT CATTLE CO
• Court: Wyoming Supreme Court

31 P. 268

3 Wyo. 777

BOARD OF COM'RS OF JOHNSON COUNTY v. SEARIGHT CATTLE CO

Supreme Court of Wyoming

October 11, 1892

Error to district court, Albany county; M. C. SAUFLEY, Judge.

Action by the Searight Cattle Company against the board of county commissioners of the county of Johnson to recover back taxes paid under protest and alleged to have been unlawfully assessed. Judgment was rendered for plaintiff, and defendant brings error. Reversed.

Judgment reversed and cause remanded.

Nellis Corthell, for plaintiff in error.

Lacey &amp Van Devanter, for defendant in error.

GROESBECK C. J. MERRELL, J., concurs. CONAWAY, J., concurring.

OPINION

GROESBECK, C. J.

The Searight Cattle Company, a corporation, brought suit in the district court for Johnson county to recover back taxes paid under protest to the collector of taxes for Johnson county for the years 1884 and 1885. A change of venue was taken to Albany county, and the cause was tried by the court sitting as a jury upon the amended petition and answer. The demurrer to the amended petition as to the first cause of action relating to the taxes for the year 1884 was sustained, and the cause was heard upon the allegations in the second cause of action and answer thereto, relating to the taxes of the year 1885. No proceedings in error have been instituted on behalf of the defendant in error, and the time for bringing such proceedings has elapsed. The defendant in error alleges in the second cause of action in its petition that it had no property whatever subject to assessment in Johnson county for the year 1885, and that the assessor of that county wrongfully and unlawfully entered the name of the defendant in error on the assessment roll, and also entered on the roll against said name for taxation in said county for said year 5,000 head of cattle, 100 head of horses, and certain other property in said county, which the assessor claimed to be the property of the defendant in error in said county for said year; and also entered against said property as the value thereof the sum of $ 91,775. This was admitted in the answer except as to the allegation that the act of the assessor was wrongful and unlawful. It is averred therein that the assessment and tax are legal. By demurrer, which was overruled, the point was raised that the county treasurer and ex officio collector of taxes should have been made a party defendant, and, further, that sufficient facts were not stated to constitute a cause of action against the defendant and in favor of the plaintiff. At the request of the plaintiff below, defendant in error here, the trial court stated in writing its findings of fact and conclusions of law. They are as follows: "(1) As a matter of fact, that the plaintiff in the year 1885 was the owner of about two hundred head of horses, and of certain ranch improvements situated in Johnson county, and that said horses were located and kept in said county of Johnson in said year, but that the county of Johnson has assessed but one hundred head of said number. (2) As a matter of law, that said one hundred head of horses and said ranch improvements were subject to assessment and taxation in said Johnson county for said year of 1885, and that the tax assessed upon said horses and upon said ranch improvements, amounting to $ 198.92, was a legal and valid tax. (3) As a matter of fact, that the home range of the cattle of said plaintiff was in Carbon county, Wyoming Terr., in said year 1885; but that the cattle of said plaintiff were accustomed to stray over into Johnson county, and during all seasons of the year were present and ranged in considerable but indefinite numbers in said Johnson county. (4) And as a matter of law, that said cattle were subject to assessment and taxation in said Carbon county, and not in Johnson county, in said year 1885. (5) And as a matter of fact, that on the 28th day of June, 1886, the plaintiff compulsorily paid to the treasurer of Johnson county the sum of $ 1,867.60, taxes upon said cattle, horses, and improvements for the said year 1885, as alleged in the plaintiff's petition. (6) And as a matter of law, that $ 1,648.79 of said sum was wrongfully exacted from the plaintiff." Judgment was rendered for this sum, with interest and costs, against the defendant, and it, as the fiscal board of the county, was directed to lay a tax to pay the same. The defendant excepted to the findings and conclusions against it, filed a motion for a new trial, which was overruled, and it brings error here.

1. The defendant in error is in no situation to complain of these findings of fact and conclusions of law, as it did not except to any of them, and, so far as they are unfavorable, is bound by them, particularly as it has not placed itself in a position to have them reviewed on appeal, and the time has elapsed for instituting proceedings in error to have them corrected. These findings of fact disclose that the defendant in error had personal property, and property savoring of the realty, in the shape of ranch improvements, in Johnson county, for the year 1885, and subject to taxation, and consequently subject to assessment therein. The personal property consisted of horses, and the findings are that but one half of the number thereof were actually assessed. The averments in the answer are not clear as to whether or not the defendant in error listed its property for assessment. The allegation is that the assessor entered the property on the roll "according to the best information he could get as to the amount and value of said property." The petition was evidently framed upon the theory that the defendant in error, the plaintiff below, had no property whatever subject to assessment and taxation in Johnson county, and that the act of the assessor in entering any property on the assessment roll was without jurisdiction and void. The findings of fact are to the effect that there were both personalty and property in the nature of realty subject to assessment and taxation in the county belonging to the defendant in error, and the case must be considered as one of overvaluation or overassessment, and not one where the assessor had no jurisdiction whatever to assess, as the proof and the findings show that there was in the county property of the same class--that is, personal property--as the cattle assessed, subject to assessment therein, and that the action of the assessor was not wholly void for lack of jurisdiction to assess for taxation. The trial court held that the assessment was erroneous as to the cattle, as they were taxable elsewhere, their situs for taxation being in Carbon, and not in Johnson, county. It is the duty of the assessor to list and assess all property in his county subject to taxation and assessment there, and it is the duty of the taxpayers, and those having property which they are required by statute to list, to assist in listing the same on or before the third Monday in June of each year. In case the assessor is unable to see the taxpayer, after using all due diligence, or where the taxpayer or person required to list property for assessment and taxation refuses to make out a list of the same, the assessor is required to "assess such property according to the best information he can get." A penalty of $ 200 is imposed upon the person refusing to list when required to do so, or in refusing to make the oath required by law, after listing his property, that the inventory of property is correct. Rev. St. §§ 3797, 3798. Although there is no direct averment, either in the amended petition or in the answer, as to whether the assessor was unable to "see" the defendant in error, or its proper officers or agents, for the purpose of demanding a listing or inventory of its property in Johnson county subject to taxation, or whether, after such demand, the defendant in error refused to list its property, it is quite certain that the allegation in the answer, that the assessor from one or the other of these reasons entered the property on the assessment roll "according to the best information he could get as to the amount and value of such property," is true. It is not disputed, either in pleading or proof. It may be true that, where a tax is founded on a fraudulent assessment, a court might interfere, but in such cases the fraud must be alleged and proved, as all presumptions are to the contrary. Cooley, Tax'n, pp. 784, 785. There is neither allegation nor proof of fraud on the part of the assessor, and no averment or proof that the assessment was fraudulent. The charge is that the assessor acted without jurisdiction, because there was no property of the defendant in error subject to assessment or taxation in Johnson county for the year 1885, while the findings and the evidence are that there was some property of the defendant in error at that time in the county subject to assessment and taxation.

It was incumbent on the defendant in error to list what property it had for assessment in that county, no matter whether it was a large or small amount. It evidently failed to do so, and this, for aught we know to the contrary, may have been a refusal to list after demand therefor by the assessor. In such cases, as it has been said, the derelict party is subject to "the doom of the assessor." There can be no just cause for complaint, if a party evades the assessing officer, and is accordingly rated for assessment excessively. But our statute has provided an ample remedy for those aggrieved, even where they have not returned their property for assessment. The board of county commissioners sits as a board of equalization, or, as the statute puts it, "a board of equalization for the correction and completion of the assessment roll." Two meetings of this board are provided, one...