Gillmor v. Dale

• Decision Date: 17 March 1904
• Docket Number: 1512
• Citation: 75 P. 932,27 Utah 372
• Court: Utah Supreme Court
• Parties: CHARLES GILLMOR, Respondent, v. W. H. DALE, as Treasurer of Salt Lake County, Appellant

75 P. 932

27 Utah 372

CHARLES GILLMOR, Respondent, v. W. H. DALE, as Treasurer of Salt Lake County, Appellant

No. 1512

Supreme Court of Utah

March 17, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. C. W Morse, Judge.

Action for the recovery of certain sums of money paid as taxes under protest, to the defendant, as treasurer of Salt Lake County, who, as such, had authority to collect the city taxes. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Charles C. Dey, Esq., City Attorney, W. H. Bramel, Esq., and D. O Willey, Jr., Esq., Assistant City Attorneys, for appellant.

C. S. Patterson, Esq., and George W. Moyer, Esq., for respondent.

BASKIN, C. J. BARTCH and McCARTY, JJ., concur.

OPINION

BASKIN, C. J.

--This is an action for the recovery of certain sums of money paid as taxes, under protest, to the defendant, as treasurer of Salt Lake county, who, as such, had authority to collect the city taxes. The general demurrer interposed to the complaint having been overruled, the defendant rested, and judgment was rendered against him. From this judgment he appeals, and assigns as error the overruling of the demurrer and the rendering of the judgment.

Among other allegations of the complaint it is alleged, in substance, that by a final judgment of the district court of Salt Lake county, rendered upon the petition of the plaintiff and others on the 20th day of May, 1902, a portion of the territory of Salt Lake City was disconnected therefrom, and declared to be no longer a part of said municipal or corporate territory of said city, "and that the said territory and the real property embraced therein shall be and the same is forever released and discharged from paying any part of the bonded municipal indebtedness of said Salt Lake City, and no longer subject to any liabilities or obligations or taxes relating thereto, nor to the further imposition of any taxes whatsoever for said or any city municipal purposes whatsoever, and that the said territory be and it is hereby released from any and every city jurisdiction and control of said Salt Lake City and the government thereof." That on or about the 28th of July, 1902, the city council of Salt Lake City, by ordinance, levied a tax of nine mills for city purposes on all the taxable property within its corporate limits. That on the 17th of July, 1902, the county assessor and county treasurer, being the officers charged with such duty, in pursuance of law, and in accordance with a certificate theretofore received by them from the board of education of Salt Lake City, levied a tax of 8.4 mills on the dollar on all the taxable property within the corporate limits of said city for school purposes. That the plaintiff during the year 1902 was the owner of certain real estate which was situate within the boundaries of the territory so as aforesaid disconnected from the limits of said city. "That the said defendant, W. H. Dale, as county treasurer, collected for the use and benefit of the defendant, Salt Lake City corporation, and paid to the said Salt Lake City corporation, the sum of $ 3.10, levied against said property as city taxes, and $ 2.89 levied against said property as city school taxes, and that on or about the 19th day of November, 1902, this plaintiff paid said amounts to said W. H. Dale, treasurer as aforesaid, under protest." The complaint also contains several other separate causes of action, in each of which it is alleged that the person therein named, during the year 1902, also owned certain real estate within the boundaries of the territory so as aforesaid excluded, and paid as taxes, under protest, and under the same circumstances as hereinbefore stated in the first cause of action alleged in the complaint, to the said defendant, W. H. Dale, the sums therein mentioned, and that the claim for the sums so paid was assigned to the plaintiff.

Section 2516, Rev. St. 1898, provides that the assessor must, before the first Monday in May in each year, assess all property subject to taxation, except such as is required to be assessed by the State Board of Equalization, to the person by whom it was owned, claimed, possessed, or controlled at 12 o'clock m. on the first Monday of February, next preceding.

On the subject of tax liens the Revised Statutes contain the following sections:

"Sec 2595. Every tax has the effect of a judgment against the person, and every lien created by this title has the force and effect of an execution duly levied against all personal property of the delinquent. The judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof.

"Sec. 2596. Every tax upon personal property is a lien upon the real property of the owner thereof, from and after twelve o'clock m., of the first Monday in February of each year.

"Sec 2597. Every tax...