Erwin v. Hubbard

• Decision Date: 22 June 1894
• Citation: 4 Idaho 170,37 P. 274
• Parties: ERWIN v. HUBBARD, ASSESSOR
• Court: Idaho Supreme Court

37 P. 274

4 Idaho 170

ERWIN v. HUBBARD, ASSESSOR

Supreme Court of Idaho

June 22, 1894

TAXATION-SECTION 1429 OF THE REVISED STATUTES CONSTRUED-STATEMENT UNDER OATH BY TAXPAYER.-It is the duty of the taxpayer to furnish the assessor, on demand, the statement on oath required by section 1429 of the Revised Statutes of 1887, and if he neglects or fails to do so, it is the duty of the assessor to assess such taxpayer's property within his jurisdiction and in that case the taxpayer cannot recover taxes paid under protest on property so assessed.

REFUSAL TO FURNISH LIST OF PROPERTY-PENALTY-DOUBLE TAXATION.-Although property was assessed in the county of A. in 1889, the assessment of the same property in the county of W. in the same year was not double taxation, but a penalty imposed by law for refusal to furnish the statement required by said section 1429.

(Syllabus by the court.)

APPEAL from District Court, Washington County.

Judgment affirmed, with costs in favor of respondent.

George H. Stewart and R. Z. Johnson, for Appellant.

The duty of assessing is a ministerial duty, limited and defined by statutes, and the officer making a mistake or exceeding his jurisdiction is a trespasser and personally liable. (Cooley on Taxation, 789, and cases cited in note 4; Ford v. McGregor, 20 Nev. 446, 23 P. 508; Mason v Johnson, 51 Cal. 612; San Francisco v. Ford, 52 Cal. 198; San Francisco v. Talbot, 63 Cal. 485.) Since property can be taxed but once for the same year and purpose, we contend that all personal property must have a situs for the purpose of taxation, and notwithstanding the fact that the court has found that some of the plaintiff's cattle, or a number of them, had been taken to Washington county for the purpose of grazing and ranging still we contend that the situs of plaintiff's cattle for the purpose of taxation was in Ada county. The court has held that they were legally taxed in Ada county. The situs of property upon the range seems to be fixed by the following rules: 1. Where is the home or habitat of the property? 2. Where is the place from which the riders start out upon their rounds to rodeo and brand the stock, and to which they return when through? (Barnes v. Woodbury, 17 Nev. 381, 30 P. 1068; Conley v. Chedic, 7 Nev. 341; State v. Falkinburge, 15 N. J. L. 323; State v. Shaw, 21 Nev. 222, 29 P. 321.) Taxes illegally assessed and paid may always be recovered, if the collector understood from the payer that the taxes are regarded as illegal, and that suit will be instituted to recover them. (Shoup v. Willis, 2 Idaho 120, 6 P. 124; Holmes v. School Dist., 34 Kan. 332, 8 P. 287; Parcher v. Marathon Co., 52 Wis. 388, 38 Am. Rep. 745, 9 N.W. 23; Winzer v. City of Burlington, 68 Iowa 279, 27 N.W. 241; Cooley on Taxation, 568, 569.) An action will always lie to recover the payment of taxes when the same was made involuntarily and under duress. (1 Parsons on Contracts, 395; Cooley on Taxation, 567; Mowatt v. Wright, 1 Wend. 355, 19 Am. Dec. 508; Chase v. Dwinal, 7 Me. 134, 20 Am. Dec. 352.) If the illegal tax is paid to prevent a seizure and sale of the taxpayer's property, having apparent colorable or formal authority to make such seizure and sale, and the payment is made under protest, the money so paid may be recovered back. (Cooley on Taxation, 568; Blackwell on Tax Titles, 4th ed., 187; 2 Dillon on Municipal Corporations, 938; Hilliard on Taxation, 421; Burroughs on Taxation, sec. 108; Miley v. Palmer, 14 Ala. 627.) Money paid involuntarily, or under compulsion, where the compulsion consisted of actual or threatened restraint of person or interference with property, can only be avoided by repayment. (Brumagim v. Tillinghast, 18 Cal. 265, 79 Am. Dec. 176; Elston v. Chicago, 40 Ill. 514, 89 Am. Dec. 361; Mays v. Cincinnati, 1 Ohio St. 268; Corkle v. Maxwell, 3 Blatchf. 413, F. Cas. No. 3231; Radich v. Hutchins, 95 U.S. 210; Wolf v. Marshall, 52 Mo. 167; Ladd v. Southern Press Co., 53 Tex. 172.) The board of equalization had no power to strike out or reduce the plaintiff's assessment. (Rev. Stats., secs. 1475, 1477, 1483; People v. Ashbury, 44 Cal. 613; 46 Cal. 523; People v. Supervisors, 50 Cal. 282; Wilson v. Supervisors, 47 Cal. 91; People v. Whylar, 41 Cal. 351.)

T. Calvin Hyde, George Ainslie, and S. L. Tipton, for Respondent.

The action of the assessor in such cases, being of a judicial nature, the assessment-roll, when made up and completed by him and turned over to the auditor or board of commissioners, becomes or partakes of the nature of a judgment, and it cannot be attacked or set aside in a collateral proceeding, but must be attacked directly. (Weatherford v. Town of Guilford, 62 Vt. 327, 19 A. 717; Meade v. Haines, 81 Mich. 261, 45 N.W. 836.) It is the duty of the taxpayer to furnish a true and correct list of his taxables to the assessor, and if he fails to do so, and any loss should result to him in consequence of such failure, his complaints on such score should meet with no favor in a court of justice. (San Francisco v. Flood, 64 Cal. 504, 2 P. 264, 1 West Coast Rep. 567-570; Bode v. Holtz, 65 Cal. 106, 3 P. 495, 2 West Coast Rep. 366, 367.) The case of Swift v. City of Poughkeepsie, 37 N.Y. 511, was an action to recover money had and received under an alleged illegal levy and collection of a tax. Held, that the proper remedy was by certiorari, since affirmed in People v. Brooklyn, 39 N.Y. 81; People v. Albany, 40 N.Y. 165; Gibbs v. Commonwealth, 19 Pick. 298; Wright v. City of Boston, 9 Cush. 241; Osborn v. Danvers, 6 Cush. 99; Boston Water Power v. City of Boston, 9 Met. 203; Preston v. Boston, 12 Pick. 11; Howe v. City of Boston, 7 Cush. 274; Lincoln v. Worcester, 8 Cush. 55; Newburyport v. County Commissioners, 12 Met. 211. To authorize the taxing of personal property in any other county than that in which the owner resides, it must appear that the property is being, to some extent, kept or maintained in such county, and not there casually, or in transitu, or temporarily, in the ordinary course of business or commerce. (People v. Niles, 35 Cal. 286, 287, 288; People v. Home Insurance Co., 29 Cal. 533, and following; People v. Holladay, 25 Cal. 300.) The legislature of Idaho territory, at its thirteenth session, did pass an act under the provisions of which all kinds of livestock were to be assessed (as contended for by appellant) in the county where the owner has his headquarters and principal corrals for such stock, which act was approved February 5, 1885. (See 13th Sess. Laws, p. 160.) But the provisions of that act were eliminated from the revenue laws of Idaho by the adoption by the legislature of the Revised Statutes of Idaho of 1887, under which latter statute the assessment in controversy herein was made. (Idaho Rev. Stats., secs. 1, 4, 17, 19, pp. 61-63, general provisions; Cooley on Taxation, 2d ed., 264, 266.) Against an illegal tax the owner of personal property has a full and adequate remedy at law, and may not resort to a court of equity and through its instrumentality review and correct the assessment-roll. (Price v. Kramer, 4 Colo. 546, 555, and cases cited.) The remedy of appellant was before the board of equalization. (Harris v. Fremont Co., 63 Iowa 639, 19 N.W. 826; Wilkinson v. Walters, 1 Idaho 564.) And such remedy is exclusive. (Nugent v. Bates, 51 Iowa 77, 33 Am. Rep. 117, 50 N.W. 76; Macklot v. City of Davenport, 17 Iowa 379; Burroughs on Taxation, secs. 102, 103, 107, 142, 173, and cases cited.) One who has handed in no list and is overtaxed cannot pay his tax, and then recover back on showing a mistake in the assessor, a mistake not rendering the tax illegal. (Lott v. Hubbard, 44 Ala. 593.)

SULLIVAN, J. Morgan, J., concurs. Huston, C. J., did not sit at the hearing, and took no part in the decision of this case.

OPINION

SULLIVAN, J.

This is an action to recover a certain sum of money paid by the appellant to the defendant, as assessor and tax collector of Washington county, as taxes assessed upon certain cattle belonging to the appellant in the year 1889. The facts found by the trial court, necessary to be stated, are substantially as follows: That plaintiff, who is appellant here, resided in Ada county during the year 1889, and was engaged in the business of stock-raising; that his ranch and headquarters for his said business were in said Ada county; that at least a part of his stock grazed for a portion of the year in Washington county; that at the hour of 12 o'clock M. of the second Monday of April, 1889, the said stock of appellant were in said Ada county, except two hundred and fifty head of cattle, which two hundred and fifty head were at said hour and date in Washington county, where they had been driven by appellant, and were then ranging and grazing; that on the twenty-fourth day of June, 1889, the assessor and ex-officio tax collector of Ada county listed and assessed to plaintiff sixty head of horses and fifteen hundred head of stock cattle; that at the time of said assessment all of plaintiff's cattle were in said Washington county, fifty head of which had been there continuously since the spring of 1888, and that said fifty head were not included in said assessment, and that said assessment did not include any of plaintiff's cattle under the age of one year, of which there were about one hundred head; that on the twenty-first day of January, 1890 the plaintiff paid the said taxes assessed against him by the assessor of Ada county on the sixty head of horses and fifteen hundred head of cattle; that prior to said assessment, but subsequent to the second Monday of April, 1889, all of said plaintiff's cattle, including those less than one year old, were driven by him into said Washington county, except the two hundred and fifty head above referred to,...