Corthell v. The Board of County Commissioners

• Citation: 8 P.2d 812,44 Wyo. 71
• Decision Date: 01 March 1932
• Docket Number: 1726
• Parties: CORTHELL v. THE BOARD OF THE COUNTY COMMISSIONERS
• Court: Wyoming Supreme Court

8 P.2d 812

44 Wyo. 71

CORTHELL v. THE BOARD OF THE COUNTY COMMISSIONERS

No. 1726

Supreme Court of Wyoming

March 1, 1932

ERROR to the District Court of Albany County; VOLNEY J. TIDBALL Judge.

Action by N.E. Corthell against the Board of the County Commissioners of Albany County, to recover taxes alleged to have been unlawfully collected. There was judgment for defendant and plaintiff brings error. The material facts are stated in the opinion.

Affirmed.

For the plaintiff in error there was a brief by Corthell, McCullough and Corthell of Laramie, Wyoming, and oral argument by Mr N.E. Corthell.

The automobile was assessed and taxed to Sandgren and Smart, as a part of their stock of merchandise before selling it to plaintiff in error. It was again taxed to plaintiff in error after his purchase and paid under protest, and application made by plaintiff in error for a refund. No tax shall be levied unless in pursuance of law. Const. Art. XV, Sec. 13. Well founded doubts in attempting to apply a tax law must be resolved in favor of the tax payer. State of Ohio v Harris, 229 F. 892; Converse v. Northern Pacific R. R. Co., 2 F.2d 959, 960. A tax is not to be imposed against a class of property, not within the provisions of the statute. In re Kite's Estate, (Ia.) 187 N.W. 585. Property except as otherwise specified in the Constitution must be uniformly assessed. Const. Art. XV, Sec. 11. State v. Snyder, 29 Wyo. 199. There is no authority for listing or taxing property more than once in any year. Ref. Co. v. Chattanooga, (Tex.) 190 S.W. 463; East Livermore v. Co., (Me.) 69 A. 306, 308. In taxing merchandise, separate units of the stock cannot be separately assessed and taxed in addition to the assessment of the stock as a whole. Comm. v. Walsh's Trustee, (Ky.) 117 S.W. 398. A change of ownership during the year will not alter the rule. The principle of singleness of taxation applies to property, regardless of ownership. A tax levied upon each change of ownership during the year would be in the nature of a sales tax, or excise, and not a property tax. Ch. 69, Sec. 26, Laws 1921 was enacted to prevent the escape of automobiles from taxation. There is no authority in the statute for assessing an automobile each time it is registered. The year is the taxable unit of time. 2752 C. S. A state tax of four mills may not be levied in the spring, and another tax on the same property, for the same purpose, in the fall, irrespective of change in ownership. So. Ins. Co. v. Brd., (La. ) 21 So. 913; People v. City of St. Louis, (Ill.) 126 N.E. 529, 531; Pub. Serv. Co. v. La. Tax Comm., (La.) 120 So. 286; Dodge v. Bank, 109 F. 726; Hall Co. v. Com., (Mass.) 102 N.E. 364; Reed Bros. v. Bd., (Miss.) 88 So. 504. The date from and after which assessments are to be made separates one tax year from another, as the time for ascertaining ownership and value of property. Pardee v. Comm., 47 S.E. 1011; Comm. v. Co., (Va.) 118 S.E. 323; Wood v. McCook Water Works Co., (Neb.) 149 N.W. 417; Wangler Bros. v. Co., (Ia.) 9 N.W. 314; Gaar, Scott & Co. v. Sorum, (N. D.) 90 N.W. 792; Preston A. Blair Co. v. Jensen, (Ida.) 288 P. 366; Box Elder Co. v. Conley, (Utah) 284 P. 105; Winton Lmbr. Co. v. Shoshone Co., (Ida.) 294 P. 529; 2840 C. S. provides that as between grantor and grantee of real or personal property, in the absence of agreement as to property conveyed after January 1st, the grantor should pay the taxes for that year. Carey v. Foster, 7 Wyo. 216. The first Monday in February is the date on which assessments should be levied. 2775 C. S. Upon the whole, it is apparent that the preferred construction, requires that the listing, assessment and taxation should relate to January 1st, but whether this date, or the first Monday in February be adopted, there are strong reasons why no later date should be used. 2881 C. S. relates to property brought into the State during the year. Frontier Land and Cattle Co. v. Baldwin, 3 Wyo. 764, that is, driven in, after the time of the regular annual assessment. The case was decided before the adoption of the State Constitution. Automobiles clearly come within the description of property found in 2757 C. S., as amended by Ch. 145, Laws 1929. The procedure of the assessor in attempting to assess the property here involved, without notice to the tax payer after the return had been made, is objectionable, and does not constitute due process of law. Sec. 2793, 2794 C. S. Moore v. Commrs., 134 Mass. 431. The assessor is required to leave with the tax payer, one copy of his assessment schedule, and when any change is made therein, to notify the owner of the change. 1527 C. S. The assessment of property must be uniform. Const. Art. XV, Sec. 11. In the case at bar, all of the foregoing rules were disregarded. The interpolation of the automobile into plaintiff's assessment schedule involved a duplicate tax upon property already assessed, violated the rule of uniformity, and was also done without notice.

For the defendant in error there was a brief and oral oral argument by F. K. Dukes, of Laramie, Wyoming.

The facts in the present case are undisputed. There is no constitutional provision directly prohibiting double taxation. The rule for taxing merchandise under our statute is not a specific property tax, but a tax on the average value of property kept on hand. Northwest Auto Company v. Hurlburt, 207 P. 161. That case involved a tax levied upon an automobile that had been in a stock of merchandise, and taxed as such prior to sale to complainant. The case was decided under an Oregon statute similar to our own. There has been no discrimination between plaintiff and other property owners similarly circumstanced. Another case in point is that of Bank of California v. Roberts, 160 P. 225, where bank shares were taxed against the maker as well as against the holder. Gray on Limitations of Taxing Power, Sec. 1361-63; Cooley on Taxation (3rd Ed.) Page 389. The distinction made in the assessment of "capital employed" and upon "specific property" are set forth in Frontier Co. v. Baldwin, 31 P. 403. Property may be added to the assessment roll after assessments. 2841 C. S. Also, 2819, 2820 C. S., Sec. 1515 C. S. does not limit the assessor to his listing made at the time of his first visit. The Board of Equalization may add property to the assessment roll. 2793 C. S. The county has reecived none of plaintiff's money, which in equity and good conscience it is not entitled to. Carton v. Board, 69 P. 1013.

OPINION

Per Curiam.

The record in this case is here upon proceedings in error. It was at first thought that it was obligatory upon the court to dispose of the case in connection with a question of procedure. This arose through a misapprehension due to an incorrect statement in the record of a controlling fact appearing in it. As that matter has been cleared up by counsel, the cause will now be considered on its merits.

The pleadings of the parties and an agreed statement of facts upon which the case was tried disclose substantially the following situation material to be considered: Sandgren and Smart, dealers in automobiles and other merchandise in the City of Laramie, purchased a Franklin automobile, which was received by them and placed in their stock at their place of business on January 10, 1929. On or about February 16, 1929, the dealers aforesaid, at the request of the County Assessor of Albany County, listed and returned for taxation for the year 1929, all of their property subject to taxation in said county including among other things and as a part of their stock of merchandise, the automobile aforesaid, as required by Section 2773 Wyo. Comp. St. 1920. Thereafter, they paid to the County Treasurer the taxes levied and assessed upon the property so returned.

On or about March 12, 1929, the plaintiff in error, at the request of the County Assessor of said county, listed and returned for taxation for the year 1929, all the property owned or held by him on that date subject to taxation in said county. Nine days afterwards and on March 21, Sandgren and Smart sold to the plaintiff in error the above mentioned automobile and he continued to own it during the remainder of the year 1929. He did not list it for taxation for that year. Some time thereafter--just when, the record does not make clear--the County Assessor aforesaid inserted in plaintiff in error's property list for taxation and entered upon the assessment roll as against him, said automobile, its value being assessed at $ 1950 on which the taxes for that year amounted to $ 42.64. This was done by the County Assessor without giving notice to the plaintiff in error. On November 6, 1929, and before the taxes for the year became delinquent, the latter, as the agreed statement of facts recites, "involuntarily and under protest and to avoid the seizure and sale of his property for the satisfaction of the taxes levied against him, paid to the County Treasurer of said county the sum of One Hundred Twenty-nine and 40/100 ($ 129.40) Dollars, in which was included the said amount of $ 42.64 levied upon the said Automobile."

Subsequently and on November 7, 1929, plaintiff in error made an application to the Board of County Commissioners of the County of Albany, the defendant in error, for a refund of the said sum of $ 42.64, which application the board declined to grant and the payment of that amount was never refunded to him. This action was commenced against said board as defendant on November 16, 1929, some time before, it would seem, as provided by Section 2843 Wyo. Comp. St. 1920 as amended by Chapter 10, Laws of Wyo. 1927, it became "the duty of the treasurer of each county to make a settlement with the board of county commissioners."

The District Court found generally in favor...