Booth v. Clark

• Decision Date: 06 March 1926
• Parties: W. T. BOOTH, Respondent, v. ETHEL T. CLARK, County Treasurer and Ex-Officio Tax Collector of Ada County, Idaho, Appellant
• Court: Idaho Supreme Court

244 P. 1099

42 Idaho 284

W. T. BOOTH, Respondent, v. ETHEL T. CLARK, County Treasurer and Ex-Officio Tax Collector of Ada County, Idaho, Appellant

Supreme Court of Idaho

March 6, 1926

TAXATION-SPECIAL DRAINAGE DISTRICT ASSESSMENTS-DUTY OF TAX COLLECTOR-STATUTORY CONSTRUCTION-MANDAMUS PROPER REMEDY.

1. Notwithstanding C. S., secs. 4527, 4552, providing that the amount of drainage district assessments shall be added to the general taxes of the land owners and collected therewith, the collector must receive general taxes tendered by a taxpayer who refuses to pay a drainage district assessment, in view of sections 3234, 3237-3241, 3251, 4549; Laws 1923, chap. 134 sec. 2.

2. There is no statute in this state prohibiting a taxpayer from paying his general property tax without at the same time paying a drainage district assessment, and the tax collector is not authorized to enforce the collection of the drainage assessment by refusing to accept general taxes, payment of which is tendered without including the amount of the drainage district assessment.

3. Mandamus is the proper remedy to invoke to compel a tax collector to perform his official duty with regard to the receipt of taxes.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Action for a writ of mandate. Judgment for plaintiff. Affirmed.

Judgment sustained, and costs awarded to the respondent.

Laurel E. Elam, P. E. Cavaney, Martin & Martin, Reddoch & Hunter and Harry S. Kessler, for Appellant.

The statutes of this state relating to the collection of drainage taxes require that the same be added to the general taxes of the person or corporation and collected therewith by the tax collector at the time of the collection of the general taxes of such person or corporation. (C. S., secs. 4527, 4547 4549, 4552, 3234, 3237, 3238, 3239, 3240, 3241 and 3251; sec 2, chap. 134, Idaho Sess. Laws 1923; Moore v. Gas Securities Co., 278 F. 111; Thomas v. City of Missoula, 70 Mont. 478, 226 P. 213.)

The writ of mandate will not issue where the party applying therefor has a plain, speedy and adequate remedy at law. (Idaho Sess. Laws 1921, chap. 107, p. 249; C. S., sec. 7255; Beem v. Davis, 31 Idaho 730, 175 P. 959; 4 Cooley on Taxation, 4th ed., sec. 1647, p. 3328; Bradford v. Snell, 80 Okla. 56, 193 P. 892; Singer Sewing Mach. Co. v. Benedict, 229 U.S. 481, 33 S.Ct. 942, 57 L.Ed. 1288; Union Pacific R. Co. v. Board of Commrs., 247 U.S. 282, 38 S.Ct. 510, 62 L.Ed. 1110; State v. Turner, 113 Wash. 214, 193 P. 715.)

J. B. Eldridge, for Respondent.

The county treasurer had no authority to demand the payment of special assessments against the wish of the taxpayer. (Hackney v. Elliott, 23 N.D. 373, 137 N.W. 433; Moore v. Furteneau, 20 N.D. 540, 129 N.W. 81.)

A drainage assessment is a special assessment and not a tax. (Elliott v. McCrea, 23 Idaho 524, 130 P. 785; Interstate Trust Co. v. Montezuma Valley Irr. Dist., 66 Colo. 219, 181 P. 123.)

"But a taxpayer may pay the tax on some of his property without paying the tax on other property separately assessed or the amount of one tax without paying other taxes." (3 Cooley on Taxation, 4th ed., p. 2492.)

The cases turn on the proposition that the statute does not prohibit the taxpayer from paying any one of his taxes as he may elect. We have no such statute in Idaho. (Howell v. Lamberson, 149 Ark. 183, 231 S.W. 872.)

BUDGE, J. William A. Lee, C. J., and Givens, J., concur. WM. E. LEE, J., Taylor, J., Dissenting.

OPINION

BUDGE, J.

On December 10, 1924, the plaintiff, on his own behalf and on account of a large number of taxpayers similarly situated, filed a petition in the district court for a writ of mandate, praying that defendant in her official capacity as treasurer and ex-officio tax collector be required to accept state, county, city and school taxes theretofore duly levied against certain real estate owned by him and falling due in the year 1924, exclusive of the drainage assessment falling due in the same year.

From the petition, inter alia, it appears that the plaintiff and numerous taxpayers owned real property within Drainage District No. 3; that on December 10, 1924, plaintiff tendered in lawful money to the defendant the sum of $ 42.84, the amount of taxes levied against his real property, except the assessment for Drainage District No. 3, in the amount of $ 28.51; and, that the defendant refused to accept the state, county, city and school taxes for the reason that plaintiff refused to pay the drainage assessment.

Upon the presentation of the petition in the district court an order was made directing that an alternative writ of mandate issue. An alternative writ, requiring defendant to accept the money tendered for general taxes, or show cause for not doing so, was issued and served upon the defendant, to which petition, order and writ she interposed a general demurrer. The demurrer was by stipulation of the parties deemed to be an answer to the petition and upon this record a hearing was had and the demurrer overruled. Upon the same date the court made an order in due form directing the issuance of a peremptory writ of mandate, and upon such order a writ requiring the defendant to accept the general taxes less the drainage assessment was issued and served. From such final order this appeal is taken.

There is but one specification of error, that "the court erred in denying and overruling the demurrer and holding the same to be insufficient as an answer to respondent's petition, and in issuing its judgment and order that the peremptory writ of mandate issue as prayed for in the petition."

The question here for determination is whether the plaintiff had a right to pay general taxes assessed against his property, and then due, and refuse to pay the drainage assessment on the same property.

The assessment by the drainage commissioners was levied for the following purposes, to wit:

"For payment of interest on said bonds

6%

For creating sinking fund for payment of principal and

on said bonds

1%

For maintenance, repairs and water development during

year of 1925

5 1/2%"

C. S., sec. 4549, is the basis upon which the six per cent levy was apparently made, and provides that "it shall be the duty of such drainage commissioners annually to levy an assessment sufficient for the payment of the coupons hereinbefore mentioned as they fall due."

The five and one-half per cent levy for maintenance and repairs is based upon C. S., sec. 4552, which provides, among other things, "and the amount thereof shall be apportioned to the landowners in such district benefited by said improvement in proportion to the maximum benefit originally assessed, and such amount shall be added to the general taxes of such landowners and collected therewith."

Sess. Laws 1923, sec. 2, c. 134, p. 196, after conferring authority to make a levy for water development, provides " . . . . which shall be levied and collected in the same manner as funds are now levied and collected for the maintenance of the drainage works and the funds so obtained may be expended for the purposes authorized by this act."

The one per cent levy for sinking fund is based upon C. S., sec. 4547, which provides that "at least five years before said bonds shall become due, the drainage commissioners of such district issuing them are hereby authorized and required, annually, to levy an assessment sufficient to liquidate said bonds at maturity."

C. S., sec. 4527, provides for the filing of the copy of the assessment-roll by the clerk of the district court with the county auditor, who shall enter the same upon the tax-roll in his office as provided by law for the entry of other taxes against the land of each of said persons named in the list, together with the amount thereof and the same shall be subject to the same interest and penalties in case of delinquency as in case of general taxes, and shall be collected in the same manner as other taxes and subject to the same right of redemption, and the lands sold for the collection of said taxes (assessments) shall be subject to the same right of redemption as land sold for general taxes, and said section further provides:

"That said assessment shall not become due and payable except at such time or times and in such amounts as may be designated by the board of commissioners of said drainage district, which designation shall be made to the county auditor by said board of commissioners of said drainage district, by serving written notice upon the county auditor designating the time and the amount of the assessment, said assessment to be in proportion to the benefits to become due and payable which amount shall fall due at the time of the falling due of general taxes, and the amount so designated shall be added by the auditor to the general taxes of said person, persons or corporation, according to said notice, upon the assessment rolls in his said office, and collected therewith . . . . "

We have, therefore, a case in which assessments have been made by the drainage commissioners within the various provisions of the statutes cited, and where it also appears that the legislature has availed itself of the ordinary machinery of the county government for the purpose of enabling the drainage district to collect assessments levied. There is no question here involving the illegality of the assessments.

Appellant contends that, under the provisions of these statutes, the tax collector is required, not only to add the drainage assessment to the general taxes of all land owners within the district, but that it is her mandatory duty to collect both taxes and assessments at the same time, and that no land owner within the drainage district, against whose real...