Dolenty v. Broadwater County
| Decision Date | 26 March 1912 |
| Citation | 122 P. 919,45 Mont. 261 |
| Parties | DOLENTY v. BROADWATER COUNTY. |
| Court | Montana Supreme Court |
Appeal from District Court, Broadwater County; W. R. C. Stewart Judge.
Action by Isabel Dolenty, as executrix of the will of W. B. Dolenty deceased, against Broadwater County. From a judgment for defendant, rendered on sustaining a general demurrer to the complaint, plaintiff appeals. Affirmed.
Wight & Pew, of Helena, for appellant.
Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen for respondent.
This action was brought to recover a tax paid under protest. A general demurrer to the complaint was sustained, judgment rendered and entered for defendant, and plaintiff appealed.
The complaint alleges that the only solvent credits owned by W. B. Dolenty at 12 o'clock noon on the first Monday in March, 1908, or at any other time during the same year, which were liable to taxation, were of the value of $1,180, and no more; that such credits were duly listed by the county assessor for taxation, and the assessment made upon that valuation; that thereafter the board of equalization, without notice to Dolenty, and without knowledge on his part of such action or contemplated action, and without making any investigation or hearing any evidence, decided and determined that Dolenty's assessment of solvent credits was incorrect, incomplete, and false, and thereupon directed the county assessor to assess to him solvent credits to the value of $19,785 in addition to those already returned and listed; that thereafter Dolenty appeared before the board, protested against such increase, introduced evidence to show that his original assessment was true and correct, and petitioned the board for a correction of such assessment to the amount originally returned, but that the board refused to make any reduction, and ordered the assessment, as amended by the board, to stand as Dolenty's assessment for solvent credits for that year. It is then alleged that the tax levied and extended upon such increased assessment amounted to $712.26; that this tax was invalid, and was paid under protest. This action was commenced on May 1, 1909.
Conceding, without deciding, some of the contentions made by appellant, and we have for consideration the principal question involved, viz.: Can this action be maintained? Apparently it is insisted that this action is brought under section 2742 of the Revised Codes; and it is urged that the limitation found in section 2743 does not have any application. Section 2742, as it appeared originally, was enacted March 18, 1895, and is found in the Political Code of 1895 as section 4024. At that time, there was not any provision of law corresponding to section 2743, Revised Codes. In 1905 an act was passed entitled "An act to amend section 4024 of the Political Code of the state of Montana, relating to the protest of taxes, and providing for an action at law to recover taxes paid under protest, by adding thereto a section to be known as section 4024a, relating to assessment and collection of taxes." Laws 1905, c. 108. This title indicates that it was the intention of the Legislature to amend section 4024, Political Code, not to enact a new or distinct statute; and the amendment thus made, or the principal part of it, is now found in the Revised Codes of 1907 as section 2743. Provision had been made in section 3789, Political Code (Rev. Codes, § 2581), for notice to the taxpayer whenever the board of equalization contemplated an increase of his assessment over the amount returned; but there was not any provision which declared what the effect of a failure to give the notice would have upon the tax of the added portion of the assessment. Manifestly one purpose of the amendment of 1905 was to provide for like notice whenever the assessor, in advance of the meeting of the board, contemplated making an increase of such assessment; and another was to declare that if the assessment was increased, either by the board or the assessor, and the taxpayer was not given an opportunity to be heard, he might have the tax upon the increase adjudged to be void, if he paid under protest and brought his action under section 4024. But the amendment goes further. It provides that whenever any person has appeared before the board and has contested the increase of his assessment, and is aggrieved at the final action of the board, he may attack the tax upon the increase in court, in an action brought under 4024, upon the grounds and for the reasons advanced by him before the board, and for no other reasons and upon no other grounds. This was a distinct limitation upon the right which he had theretofore enjoyed under 4024 before the amendment went into effect. But the amendment goes still further, and provides that any action brought to recover any tax paid under protest, for any reasons mentioned in the amendment, must be commenced on or before November 30th of the year in which the tax was paid.
It is suggested by counsel for appellant that the phrase "for any reasons mentioned in this section" limits the class of actions which must be brought on or before November 30th to actions instituted to recover taxes upon the increase made to an assessment by the assessor, and not to an increase made by the board. But this cannot be true. Aside from the first paragraph of the amendment, the act very clearly discloses that it was the intention of the Legislature to have it apply to actions brought to recover a tax paid under protest, whether the tax was upon an increase of the assessment made by the assessor or the board, and whether the taxpayer had been given notice or not. The second proviso of the amendment makes this clear. It provides the rule by which the tax on the increased assessment is to be determined "when an action is instituted to recover any tax paid under protest on the ground and for the reason that the valuation of the property as increased by the board of equalization or assessor, is an overvaluation of such property." If the act of 1905 did not amend section 4024 in the particular which we have indicated, it did not amend that section at all, and the expressed purpose of the Legislature, as indicated in the title of the act, was defeated; for it is elementary that, if the amendatory act is not germane to the subject-matter of the act to be amended, then it is not of any effect whatever as an amendment. 36 Cyc. 1056.
As a further argument in favor of the contention just noticed counsel for appellant direct attention to the fact that after these provisions had been carried forward into the Revised Codes of 1907 as sections 2742 and 2743, they were again amended by an act approved March 10, 1909, and in section 2742 there was inserted the proviso "that any action instituted to recover any tax paid under protest shall be commenced within sixty days after the thirtieth day of November of the year in which such tax was paid" (Laws 1909, p. 202); while section 2743 was amended by modifying the provision, referred to above, to read: "Provided, that any action instituted for the purpose of recovering any tax paid under protest for any of the reasons mentioned in this section shall be commenced within sixty days after the thirtieth day of November, of the year in which such tax was paid." It is argued with much force that, if the limitation in section 2743 applied to actions arising under...
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