Centennial Eureka Min. Co. v. Juab County

• Citation: 22 Utah 395,62 P. 1024
• Court: Utah Supreme Court
• Decision Date: 22 November 1900
• Parties: CENTENNIAL EUREKA MINING COMPANY RESPONDENT, v. JUAB COUNTY, APPELLANT

62 P. 1024

22 Utah 395

CENTENNIAL EUREKA MINING COMPANY RESPONDENT, v. JUAB COUNTY, APPELLANT

Supreme Court of Utah

November 22, 1900

Appeal from the Fifth District Court Juab County. Hon. W. M McCarty, Judge.

Action by plaintiff to recover a certain sum of money paid to defendant county under protest and claimed to have been an illegal tax. From a judgment for plaintiff defendant appealed.

Affirmed.

Messrs Powers, Straup & Lippman, Thomas Marioneaux, Esq., and Edward Pike, Esq., for appellant.

If one voluntarily lists for taxation corporate stocks which are not taxable, and they are taxed accordingly, he cannot complain as it is his own fault. Rep. Life Ins. Co. v. Pollock, 75 Ill. 292.

So where a part was taxable, and a part not taxable by law, and the taxpayer protested that the tax was not lawful, he was held to be estopped by his list. Am. Exp. Co. v. St. Joseph, 66 Mo. 675 (27 Am. Rep. 382); Gage v. Burlingame, 74 Mich. 120; Peop. v. R. R., 49 Cal. 414; Lake Co. v. Mining Co., 68 Cal. 14; Hubbard v. Windsom, 15 Mich. 146; Crismon v. Salt Lake Co., 2 Utah, 111; 25 Am. & Eng. Enc. Law, 451; Ives v. North Cannaan, 33 Conn. 402; Town of Kissimmee v. Drought, 26 Fla. 1 (23 Am. St. Rep. 546); Leonard v. Madison Co., 64 Iowa 418; Pingree v. Berkshire Co., 102 Mass. 76; People v. Atkinson, 103 Ill. 45.

Where the Assessor and Board of Equalization have made an honest assessment of property courts will not disturb their judgment, even though such assessment is erroneous. Danforth v. Livingston, (Mont.) 59 P. 916, Pamphlet No. 12.

When provision is made for such an application to a Board of Equalization or Review for the correction of errors in an assessment, such remedy is a condition precedent to an action to prevent the collection of taxes or to compel the refunding of the same. Dundee Mortgage Investment Co. v. Charleton, 32 F. 192; Small v. Lawrencebough, 128 Ind. 231; Johnson Co. v. Search Light Cattle Co., 3 Wyo. 777; Caledonia v. Rose, 94 Mich. 216; Railroad v. Harrison Co., 74 Iowa 283; Smith v. Marshalltown (Iowa), 53 N.W. 286; Breeze v. Hailey, 10 Colo. 5; Swenson v. McLaren, 21 S.W. 300; People v. Duguid, 68 Hun. 243; Borrman v. Juneau, 76 Wis. 55; Phoenix Grain & Exchange v. Gleason, 121 Ill. 502-524; Baldwin v. Elizabeth, 42 N. J. Eq. 11; Hall v. Snedeker, 42 N. J. L. 76; Ramp v. Marion Co. (Oregon), 33 P. 681.

The complaint failed to allege and the evidence failed to show that the claim sued on was presented to the board of county commissioners within one year from the time the claim accrued. Session Laws '96, p. 534, Secs. 34, 35, p. 535, Secs. 36 and 37.

Under such statute it was held it includes a claim for the repayment of taxes paid under protest, and that its presentation to the board was a condition precedent to the commencement of an action against the county. Powder River Cattle Co. v. Custer Co., 22 P. 383; Richardson Co. v. Hull, 39 N.W. 608.

On rehearing the same conclusion was reached. 45 N.W. 53; Mead v. City of Lansing, 56 Mich. 601; Gray v. Palmer, 9 Cal., 636; 5 Am. Eng. Ency. Law, 526 (1st ed.); Prigg v. Penn, 16 Peters, 615.

The term "claim" as used in the Utah Statute, covers liquidated claims and demands as well as unliquidated ones; and according to some authorities, includes a claim arising ex delicto as well as one arising ex contractu. Hoexter v. Judson County Treasurer (Wash.), 59 P. 498; Pamphlet No. 6.

The failure to allege and prove the presentation of respondent's claim to the Board of Commissioners within one year from the time the claim accrued, is fatal to respondent's recovery. Fenton v. Salt Lake Co., 3 Utah, 433; Yavapai v. O'Neil, 29 P. 430; Rhode & Wilson v. Alamedo Co.; 52 Cal. 350.

"Wherever a protest is essential it is therefore necessary to state the grounds upon which the party paying the money claims that the demand is illegal." Meek v. McClure, 49 Cal. 628; Fremery v. Austin Tax Col., 53 Cal. 380.

"It is clear that merely paying a tax under protest does not make the payment involuntary." Raleigh v. Salt Lake City, Utah, 53 P. 974; Lamborn v. Dickinson Co., Comsr., 97 U.S. 181; 24 L. ed. 927; Bucknell v. Story, 46 Cal. 598-9.

Messrs. Bennett, Harkness, Howat, Sutherland & Van Cott, for respondent.

So far as the statute authorizes the taxation of the net proceeds of mines, preceding the date of its passage, it has been held to be invalid by this court. Mercur Gold Mining Co. v. Spry, 16 Utah 222.

In Cooley on Taxation, p. 360, it is said: "Handing in a list, which, by mistake of the lister's rights, is made to embrace property not liable to taxation, will not estop him from claiming an abatement as to such exempt property; there being no reason of justice or public policy why it should." Charlestown v. County Commissioners, 109 Mass. 270; Louisville v. Anderson, 79. Ky. 334; S. C. 42 Am. Rep. 220; Northrop v. Graves, 19 Conn. 548.

"No reduction must be made in the valuation of property unless the party affected thereby, or his agent, makes and files with the board a written application therefor, verified by his oath, or shall appear before the county board of equalization and show facts upon which it is claimed such reduction should be made."

It is insisted that respondent should have followed the requirements of the Session Laws of 1896, page 444, Sec. 72. If we were claiming a reduction in the valuation of property in this case, the appellant's contention would be correct, and the authorities cited would be applicable; but to cases of void assessments it clearly has no application whatever. 25 A. & E. Ency. Law, 243-4, and authorities cited; Dickey v. County of Polk, 58 Ia. 287; Pueblo Co. v. Wilson, 15 Colo. 90.

The respondent was not required to present any claim to the Board of County Commissioners. The action is brought under a special statute which does not require that the claim shall be restricted.

The remedy pursued in this case is statutory and the statute must be followed. When this is done it is not necessary to go further; no additional statutory restrictions are to be sought. If any restriction with reference to claims generally had been intended as a restriction upon the statutory right to recover taxes, it would have been included in this section, or reference made to it. The rule of statutory construction is familiar and well settled. Endlich on Inter. of Stats. Sec. 154; Western Ranchers v. Custer Co., 89 F. 577.

The rule of statutory construction that the enumeration of one thing in a statute is an exclusion of all others has been repeatedly applied by this court as well as others. Irrigation Co v. Canal Co., 14 Utah 155; Pettit v. Duke, 10 Utah 313.

Under the provisions of Sec. 180, page 466 of the Session Laws of 1896, and under the circumstances of this case, a general protest at the time of paying the tax is sufficient. The only object of the protest provided by the statute is to give notice that the taxpayer challenges the right of the officer to collect the tax. In addition to this the assessor and the county are bound to know that the law was invalid and a protest pointing out the invalidity was unnecessary. Adams v. Supervisors, 154 N.Y. 619, 626; Railroad Co. v. Commissioners, 98 U.S. 541, 543; Western Ranchers v. Custer Co., 89 F. 578.

BASKIN, J. BARTCH, C. J. and MINER, J., concur.

OPINION

BASKIN, J.

The complaint, in substance, alleges that on the 19th day of November, 1896, the defendant by its duly qualified treasurer and collector collected from the plaintiff $ 11,304.80, as and for a tax levied and assessed on and respecting the net proceeds of plaintiff's mine, from May 31st, 1895, to and including May 31, 1896; that said levy, assessment and collection of said tax on the net proceeds of plaintiff's mine from May 31st, 1895, to and including April 4th, 1896, was wholly without authority of law; that the net proceeds of plaintiff's mine for the period first mentioned was $ 443,370.51, and for the period from May 31st to and including April 4th, 1896, was $ 338,024.66; that the collection of the tax thereon amounting to $ 8,619.63 was illegal, and was paid by plaintiff under protest and to prevent a seizure and sale of its property, and that said collector paid the same to defendant prior to June 1st, 1898; that plaintiff at divers times demanded of the defendant payment of the sum so illegally collected, but that the defendant refused and still refuses to pay said sum, or any part thereof. Plaintiff prayed judgment for that sum. The defendant interposed a demurrer to the complaint, the grounds of which, as stated therein, are as follows: "That the said complaint does not state facts sufficient to constitute a cause of action against the said defendant. That it appears upon the face of the said complaint that said cause of action is barred by sections 531, 533, 2880 and 2881 of the Revised Statutes of Utah, 1898, and by sections 34 and 37 of Chapter 131 of the Session Laws of Utah of 1896, and by sections 196, 199 and 3147 and 3148 of the Compiled Laws of Utah of 1888."

The overruling of this demurrer is assigned as error.

Art. 13, Sec. 4 of the Constitution provides that "The net annual proceeds of all mines and mining claims, shall be taxed as provided by law." The Constitution went into effect on January 4, 1896. Previous to that time, and until the Revenue Act of 1896 (Sess. Laws 1896, p. 423, Sec. 3), went into effect on the 5th day of April of that year, the net annual proceeds of mines were not taxable. Mercur Gold M. & M. Co. v. Spry , 16 Utah 222, 52 P. 382.

The net proceeds of plaintiff's mine from May 31st, 1895, up to and including April 4th, 1896, was not therefore, subject to taxation, and the assessment and collection of the taxes paid by plaintiff thereon was unlawful....