Carton v. Board of County Commissioners of Uinta County

• Decision Date: 18 August 1902
• Parties: CARTON v. BOARD OF COUNTY COMMISSIONERS OF UINTA COUNTY
• Court: Wyoming Supreme Court

69 P. 1013

10 Wyo. 416

CARTON v. BOARD OF COUNTY COMMISSIONERS OF UINTA COUNTY

Supreme Court of Wyoming

August 18, 1902

ERROR to the District Court, Uinta County, HON. RICHARD H. SCOTT Judge of First District, presiding.

Lawrence A. Carton brought the action against the Board of County Commissioners of the County of Uinta to recover back certain taxes paid by him upon some herds of sheep. Judgment was rendered for the county, and he appealed, assigning error. The material facts are stated in the opinion.

Judgment affirmed.

Van Orsdel & Burdick, for plaintiff in error.

It will be conceded that if plaintiff's property was interstate commerce, it was not taxable. (Kelley v. Rhoads, 7 Wyo., 237.) And to determine whether the property comes within that classification we apply to the facts, the test laid down by the court in the case cited. That test requires consideration of "the course taken, the character of the territory grazed upon, the time employed, the subsequent method of intended shipment, the ordinary facilities for transportation by other means, the place selected for the commencement of the journey by rail, if this is in contemplation, possibly the time of year, and the eventual purpose of their shipment, and the manner in which such stock is customarily kept, maintained and grown; and, in general every competent fact which will tend to explain the purpose in view."

The course taken was the most direct route through the State from Utah and Idaho to Kansas and Nebraska. The territory grazed upon was the public domain. The time employed was approximately ninety days crossing the State a distance of five hundred miles, and the average rate of speed was four and one-half to five miles per day. The subsequent method of intended shipment and the place selected for the commencement of the journey by rail was by rail from Cody and Sidney Nebraska, and Lamar, Colorado. The time of year was from July 25 and August 1 to November 3. The live stock and the eventual purpose of the shipment were wethers or feeding sheep bought specially for mutton and to be fattened for market in Nebraska. The manner in which such stock is customarily kept, maintained and grown is on government grass from the public domain, and it is the custom, even when such stock is being transported by rail, to unload and graze at convenient points.

On this branch of the case, both on principle and authority, we rest upon the proposition: That, it being shown the owner of live stock has a purpose to transport it through the State, and that he carries this purpose out in the manner customarily governing the shipment of that class of stock, then in that event his property is interstate commerce, not subject to state taxation, and the incidental benefit derived by his stock from grazing on the public domain (whether the grazing is daily for ninety days or twice at unloading points) will not change the character of the property, or bring it within the purview of the taxing laws.

In view of the mode followed by the county officers, it becomes pertinent to ascertain what is required by the laws of the State to lay the foundation for a valid tax. Chapter 59, Laws 1897, provides in Section 3 that the assessor, after having received notice of the presence in the State of migratory stock, shall, if he receives such notice prior to the annual levy of taxes (the first Monday in September), enter the assessment of said stock upon his assessment roll, or if such regular roll is complete, then upon a supplemental roll. Section 3799, R. S. 1887, requires the assessor to make oath to the assessment roll, and nothing in Chapter 59, Laws 1897 relieves him from that formality. Following the assessment, Section 3846, R. S. 1887, provides a method of levying a tax on said property, and requires the County Clerk, upon receipt of the assessment, to at once levy a tax thereon and enter the same upon the tax list of the county and extend against the same the tax levied thereon. Provided, the levy shall be the same as that made upon like property for the current year.

Now, in this case the presence of plaintiff's stock in Uinta County was known to the County Assessor about August 1, or before the annual levy was made, hence it was his plain duty to enter the assessment on the regular assessment roll of the county, if still incomplete, otherwise on a supplemental roll. In other words, the obligation on the assessor was to make a valid assessment and to so certify to the proper authorities. This was the requirement of the statute, and a mere entry of the amount of plaintiff's property in an irregular form of record not in any way authenticated and not certified by the assessor to be a correct assessment, or certified by him to the County Clerk as a regular or supplemental assessment roll, was no assessment at all, and vitiated all subsequent proceedings. (Sibley v. Smith, 2 Mich., 502.) The subsequent proceedings in no respect complied with the requirements of Section 3846, and it appears in fact that plaintiff's property was never entered at all on the tax list of Uinta County. Furthermore, that the amount levied, to-wit, twenty-five cents per thousand head per day for seventy-five days, has no relation whatever to the authorized levy made by Uinta County for the year 1898.

Uniformity of taxation is essential to validity. The valuation per head for purposes of taxation fixed on live stock by the State Board of Equalization precludes a county board from fixing another rate, and if they do so the tax is lacking in uniformity. (Sec. 11, Art. 15, Const. Wyoming; Cooley on Taxation (2nd Ed.), 164-236; Desty on Taxation, 175; Torey v. Mullbury, 21 Pick., 64; Sibley v. Smith, 2 Mich., 499; Marsh v. Clark, 42 Wis. 512; State v. Tonella, 70 Miss. 712; Re. Thos. Page, 60 Kans., 842.) It is a primary principle of taxation that statutes authorizing a tax and prescribing the method of levy and collection must, for the protection of the taxpayer, be strictly adhered to by the taxing officers. (Cooley on Taxation, 285, 286, 287, 470, 471; Desty on Taxation, 457; Sharp v. Spear, 4 Hill, 76; Scott v. Union Company, 19 N. W., 667; Marsh v. Clark, 42 Wis. 502; Mattison v. Rosendale, 37 Wis. 257; Huntington v. R. R., 2 Sawyer, 503; French v. Edwards, 13 Wall., 506.) And it is held that a limitation to a particular mode of assessment includes a negative of any other mode. (Desty on Taxation, 457; R. R. Co. v. Reid, 13 Wallace, 269.)

There can be no valid tax except by authority of law, nor can the taxing power exercise its authority in such manner as to tax regardless of value, hence such a tax as was collected here, even though authorized by legislative enactment, would have been repugnant to the constitution of Wyoming. (Sec. 13, Art. XV, Const.; Redfoot Lake Levee Disct. v. Dawson, 97 Tenn. 157.) Taxpayers are entitled to have the taxes against them entered on an officially certified roll or tax list provided by law for the purpose, containing prescribed information, regularly filed in some public office, and regularly signed by the proper officers, and if these formalities are lacking the tax collected is not only illegal and the proceedings void, but the collecting officer is without authority. (Burroughs on Taxation, 202; Thurston v. Little, 3 Mass., 429; Theyer v. Sterns, 1 Pick., 482; Hintrager v. Kiene, 14 N.W. (Ia.), 568; Smithberg v. Archer, 78 N.W. (Ia.), 847; Sibley v. Smith, 2 Mich., 502; Clark v. Crane, 5 Mich. 153.)

Hamm & Arnold, for defendant in error.

In its simplest analysis, this case is one of those where owners of large bands or herds of live stock seek to subsist them upon the pastures of our State for a practically indefinite period without responding in any compensatory manner to the State, under the pretext that they are interstate commerce and, therefore, have an immunity from taxation.

A part of the sheep were brought in from the State of Idaho on the northwest and a part from Utah on the south. And those that came in from the south were driven in a northerly direction through Fort Bridger and through Granger, instead of going east across the county. The territory grazed upon is admitted to be the public domain and outlying pasturage lands that are used by the stock owners of the State for pasture for their cattle and sheep. By the testimony of the plaintiff's witnesses, it is established that the rate traveled in Uinta County was about four and a half to five miles per day, while as to that which sheep could easily travel and yet subsist in the ordinary manner in which sheep are driven and pastured as they go is eight to ten miles. The subsequent method of intended shipment is to be gathered from actual facts and circumtsances, rather than from the declarations of interest on the part of the plaintiff, and from the whole testimony it appears that the sheep were brought into the State of Wyoming at that period when the grasses are best suited for fattening live stock, and their trail through the State so timed as to get them into Western Nebraska and Eastern Colorado at the time when it was necessary to ship them on the railroad to some other point. So the intention of the plaintiff in error gathered from the testimony is conclusively proven to have been the grazing and subsistence of his flocks and herds upon the grasses of the State of Wyoming.

The court will take notice of the fact that these sheep in passing through the County of Uinta in the direction testified to, as to those herds which entered from the south line of the State and passed to the north, could have been shipped by rail from a point within Uinta County. In this instance it appears that the place selected by the plaintiff in error for commencing the journey by rail was not a point along the...