Chi., M. & P. S. Ry. Co. v. Bowman Cnty.

• Decision Date: 19 June 1915
• Citation: 153 N.W. 986,31 N.D. 150
• Court: North Dakota Supreme Court
• Parties: CHICAGO, M. & P. S. RY. CO. v. BOWMAN COUNTY.

31 N.D. 150

153 N.W. 986

CHICAGO, M. & P. S. RY. CO.

v.BOWMAN COUNTY.

Supreme Court of North Dakota.

June 19, 1915.

Syllabus by the Court.

The payment of taxes to avoid a penalty, a portion of which taxes are illegal, but the legal portion of which taxes cannot be paid, or at any rate will not be received without the payment of the illegal part, and which penalty will be incurred upon the nonpayment of the taxes, is a payment under compulsion.

Where the statute, as does that of North Dakota (section 2166, Compiled Laws of 1913), requires the county treasurer to deliver a list of the delinquent taxes to the sheriff, and upon such delivery requires the sheriff to immediately proceed to collect the same, and to distrain and sell the property upon which the taxes are delinquent, and where neither the treasurer nor the sheriff have the authority to cancel or rebate the illegal taxes, a property owner may assume that the officers of the law will obey the statute, and can pay such taxes under protest, and need not wait until the seizure is actually made or threatened, in order that his payment may be involuntary, and, if such taxes are illegal, may afterwards bring suit for the recovery of the amount so paid.

Appeal from District Court, Bowman County; Nuessle, Judge.

Action by the Chicago, Milwaukee & Puget Sound Railway Company against Bowman County. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover excess taxes to the amount of $451.79, which were paid by the plaintiff railway company under protest to Bowman county; the excess levy being due to the levy of 20 mills for school purposes, when a levy of 17 mills would have produced more than the amount certified to the county auditor by the officers of said school district, and by the levy for general county purposes of a tax of 9 mills upon the dollar, in violation of the provision of section 1539, R. C. 1905, which places the limit at 8 mills. The illegality of the excess tax is conceded, and the only defense which is offered by the county is that such excess was voluntarily paid, and therefore cannot be recovered. It appears from the testimony:

That, when the assessment was first reported by the county auditor to the tax commissioner of the railway company, the 2-mill levy for the county poor was omitted. That when the tax levy was reported the 2-mill levy for the county poor was included. That immediately upon being notified of this 2-mill levy, and the 20-mill school levy upon property within the village of Gascoyne, the tax commissioner reported to the county auditor his discovery that the taxation for county purposes exceeded the authorized levy of 8 mills, and that the levy upon the property inside of the village of Gascoyne for school purposes exceeded the amount required to raise the revenue needed for school purposes, and exceeded the levy upon property within the same school district outside the village of Gascoyne. That in reply thereto, and on January 16, 1912, the county auditor advised the tax commissioner that he had no authority to make any change, inasmuch as his books had been turned over to the county commissioner, and requested the company to correspond with the treasurer. That on January 22, 1912, the tax commissioner wrote to the county treasurer as requested, and asked him to take the matter up with the county commissioners and have the correction made, and that in this letter, and with reference to the mode of paying the tax, he said:

“Will it be satisfactory to you if remittance is made of the entire amount of the taxes less the amount which should be canceled pending the action thereon by the county commissioners? Of course it will be perfectly satisfactory to us to have on the receipts that the entire amount was not remitted. Making the corrections indicated, we make the total amount of all taxes $16,488, instead of $16,939.79, as shown by the statement received from the auditor.”

That in answer to this letter the county treasurer, under date of February 17, 1912, wrote the company that he had taken the matter up with the county commissioners and could do nothing with them, and that he understood that the commissioners had directed the auditor to reply to the letter. That at this time the treasurer returned the statements without making the required corrections, and advised the company that he was giving the totals as they showed on his books and as the totals were charged to him, and that he could not accept anything less. That on February 9, 1912, the auditor again wrote the railway company, advising that the commissioners had refused to make the corrections, because they felt that if the company were released it would work an injustice upon other taxpayers in the county, and because the state's attorney had instructed the board that the taxes could be collected from the railway company. That thereafter, and under date of February 19, 1912, a voucher check in payment of the full amount of the taxes demanded, payable to Bowman county, was mailed by the company to the county treasurer, who deposited the voucher check in the bank. That on this check or draft the following statement was indorsed:

“ Note.-This payment includes $451.79 paid under protest by said company as set forth in detailed statement referred to above.”

That the detailed statement was the same statement of taxes which was sent by the treasurer as a receipt, and consisted of a minute and detailed statement of the various amounts, taxes, levies, and rates thereof in each of the tax districts and for each of the funds. That said statement also contained the following explanation and receipt:

“ Note.-The above statement includes $451.79, which is paid by said company under protest, to wit: One mill on the entire valuation of $417,772, or $417.77, which said company claims is an illegal charge, for the reason that levies for ordinary county revenue, including the support of the poor, are limited to 8 mills by law, while the taxes as charged include levies for said purpose aggregating 9 mills, viz.: County tax, 2 mills; county salary fund, 5 mills; county poor, 2 mills-and 3 mills on the valuation in the village of Gascoyne, $11,341 or $34.02, said company claiming that the levy extended against its valuation in said village should have been 17 mills for school purposes, instead of 20 mills.”

That the receipt proper was as follows:

“$16,939.79. Bowman, North Dakota, February, 1912. Received of the Chicago, Milwaukee & Puget Sound Railway Company the sum of sixteen thousand nine hundred thirty-nine and 79/100 dollars in full payment of taxes for the year 1911, levied against the property of the said company in Bowman county, North Dakota, as per detailed statement above, including $451.79 paid under protest, as per memorandum above.”

That subsequently, and on April 16, 1912, formal application for the refunding of the said sum of $451.79 was presented by the plaintiff to the board of county commissioners of the defendant county. That this application was acted upon on January 6, 1913, and disallowed.

Theo. B. Torkelson, of Bowman, for appellant. William G. Porter and Ed. L. Grantham, both of Aberdeen, S. D., and Emil Scow, of Bowman, for respondent.

BRUCE, J. (after stating the facts as above).

The only question that is presented to us by the briefs of counsel for determination is whether the plaintiff was precluded from recovering by reason of the fact that it made a voluntary payment.

[1] We are satisfied that the payment was not so...