Board of Com'rs of Custer County v. Story
| Decision Date | 26 May 1902 |
| Citation | 69 P. 56,26 Mont. 517 |
| Parties | BOARD OF COM'RS OF CUSTER COUNTY v. STORY. SAME v. STORY et al. |
| Court | Montana Supreme Court |
Appeal from district court, Gallatin county; F. K. Armstrong, Judge.
Action by the board of commissioners of Custer county against Nelson Story and same against Nelson Story and another. From judgments for defendants, plaintiff appeals. Affirmed.
C. B Nolan and Jas. Donovan, Atty. Gen., for appellant.
A. J Campbell, for respondents.
These actions were instituted against the defendants in the district court of Custer county on the 6th day of August, 1897. Subsequently a change of venue was ordered by said court to the district court of Gallatin county. In the first-named action a recovery is sought against the defendant therein named on account of unpaid taxes assessed against him by the authorities of Custer county for the year 1889, amounting to the sum, with penalty added, of $759. The second action is similar in character. In two separate causes is alleged the default of the defendants in the payment of taxes assessed against them by the county authorities of Custer county for the years 1890 and 1892 amounting to the sums, with penalties added, respectively, of $7,087.15 and $187. Said sums sued for are alleged to have matured in the respective years of their assessment. To each cause answer was made traversing the material allegations, and, in addition, as against each cause of action, the statute of limitations was pleaded. By agreement of the parties the causes were consolidated, and tried together by the court below sitting without a jury. At the conclusion of plaintiff's testimony the defendants moved for a nonsuit upon the ground that it affirmatively appeared that the actions were barred by the provisions of subdivision 2 of section 42 of division of the Compiled Statutes, section 1 of the act of the 3d legislative assembly, approved March 10, 1893 (Laws 1893, p. 50), which motion was sustained by the court, and judgment in favor of the defendants entered accordingly. From that judgment the plaintiff prosecutes this appeal.
No question having been raised touching the authority of plaintiff to bring these actions in the name of the board of county commissioners, its capacity to sue is assumed for the purposes of this appeal. In addition to the material averments of the complaint, it is further alleged, relative to the property on account of which the taxes sued for were assessed, that it "was at all times while within said county situate upon the Crow Indian reservation, and that after said tax was assessed and levied and became delinquent the treasurer of said county plaintiff frequently attempted to go upon said reservation to collect said tax, and was at all times before the removal of said property from the said county hindered and prevented from so entering upon said reservation and collecting said tax by distraint of said property by the United States Indian agent and by the United States authorities in charge of said reservation, and by the injunction orders in said matter made and issued by the United States circuit court of the Ninth circuit in and for the district of Montana, and was by the action of said federal authorities and said federal court wholly prevented from seizing and distraining the property of defendants." A careful examination of the testimony had at the trial fails to disclose any proof offered in support of this contention. Whether these averments were incorporated in the pleadings for the purpose of taking the causes out of the operation of the statute of limitations it is needless to speculate, or what effect the alleged hindrance, if established, would have upon the statute, is unnecessary to determine. The sole question presented by this appeal is whether the statute of limitations runs against the state, or a subdivision thereof, in an action to recover a judgment for an unpaid tax claim, -- whether said subdivision 2 of section 42, as amended, contravenes the provisions of section 39 art. 5, of the constitution. The statutory and constitutional provisions which have application to and must determine the question under consideration are as follows: Section 28, div. 1, Comp. St. 1887. "Civil actions can only be commenced within the periods prescribed in this title after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute." Section 42, Id., as amended: "An action upon a liability created by a statute, other than a penalty or a forfeiture, shall be commenced within two years." Section 49, Id.: "The limitations prescribed in this act shall apply to actions brought in the name of the territory, or for the use and benefit of the territory, in the same manner as to actions brought by private parties." The section last quoted, as carried into section 520, Code Civ. Proc., reads: "The limitations prescribed in this chapter apply to actions brought in name of the state, or for the benefit of the state, in the same manner as to actions by private parties." Section 39, art. 5, of the constitution: "No obligation or liability of any person, association or corporation held or owned by the state, or any municipal corporation therein, shall ever be exchanged, transferred, remitted, released or postponed or in any way diminished by the legislative assembly; nor shall such liability or obligation be extinguished except by the payment thereof into the proper treasury." Legislative intent is manifest from the language of section 49, supra, that the statute should operate with equal force against an action by the state, or for the use and benefit of the state, as against a private individual. If demands of the character of those in suit are "liabilities created by statute," and the sections of the statute above quoted are not repugnant to the provisions of the constitution,...
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