Great Northern Ry. Co. v. Roosevelt County

• Decision Date: 03 December 1958
• Docket Number: No. 9734,9734
• Citation: 332 P.2d 501,134 Mont. 355
• Parties: GREAT NORTHERN RAILWAY CO., a corporation, Plaintiff and Respondent, v. ROOSEVELT COUNTY and W. C. Hanson, County Treasurer, Defendants and Appellants.
• Court: Montana Supreme Court

Page 501

332 P.2d 501

134 Mont. 355

GREAT NORTHERN RAILWAY CO., a corporation, Plaintiff and Respondent, v. ROOSEVELT COUNTY and W. C. Hanson, County Treasurer Defendants and Appellants.

No. 9734.

Supreme Court of Montana.

Submitted March 20, 1958.

Decided Dec. 3, 1958.

Forrest H. Anderson Atty. Gen., Lawrence Persson, County Atty., Wolf Point, for appellants.

Weir, Gough & Matson, Helena, for respondent.

BOTTOMLY, Justice.

The facts causing this controversy are as follows: The County Commissioners of Roosevelt County, Montana, established a rural fire district, July 13, 1953, within Roosevelt County. Said fire district consisted of the area around Bainville, Montana. In the establishment of this fire district the Board of County Commissioners followed the provisions of the applicable statute, to-wit: section 11-2008, as amended by section 1, chapter 75, Laws of 1953, and section 11-2009, Revised Codes of Montana 1947. In attempting to create the purported rural fire district, the County Commissioners of Roosevelt County, Montana, included within the boundaries of said purported district 35.47 miles of the railroad track of the Great Northern Railway Company. By so doing the Railway Company's taxable property valuation in the purported district was assessed at $469,004, this was 40.13 percent of the $1,168,620, total taxable and assessed valuation of all the property of the district. The actual improvements of the Great Northern Railway Company in the purported district amounted to only $3,546.

It was stipulate in an agreed statement of facts, and admitted by all parties in their briefs, that the said County Commissioners of Roosevelt County, Montana, created said rural fire district and established the fire limits for the same, without giving the Great Northern Railway Company any notice whatever, without giving said Great Northern Railway Company any opportunity to be heard or a hearing on the merits of the proposed fire district or the creation thereof, and without giving said Railway Company an opportunity to offer objections to the creation thereof or to the inclusion of any or all of its property therein before creating the same; that the Board of County Commissioners of Roosevelt County, Montana, authorized and directed the assessment and fixed the rate designating a levy of two mills to be imposed for the purported fire district on the taxable property including the operating property of the said Railway Company within the so-called rural fire district; that the taxable valuation for the said year of 1953 of the operating property of said Railway Company in said fire district was $469,004; that the tax on said property, by the levy of two mills thereon produced a tax of $938, one-half of which amounted to the sum of $469, was, prior to November 30, 1953, paid by the Great Northern Railway Company to the defendant, W. C. Hanson, as County Treasurer of Roosevelt County, Montana, under protest, and paid the last half of said tax before May 31, 1954.

The said Railway Company filed this suit in district court on January 18, 1954, to recover the said sum paid under protest, contending there, and on this appeal here, that said creation of said such rural fire district by the Board of County Commissioners of Roosevelt County was void as well as the said assessment of their property therein and the levy of the said tax, and contending that the said sections of the Montana Code as then written, to-wit, R.C.M.1947, § 11-2008, as amended by section 1, of chapter 75, Laws of 1953, and R.C.M.1947, § 11-2009, are unconstitutional and in direct violation and conflict with the first clause of the Fourteenth Amendment of our Federal Constitution and section 27, of Article III, of our State Constitution.

The district court so found and entered judgment for the Great Northern Railway Company. With the contention of respondent and the judgment entered, we agree.

The sole question is, are these sections above-mentioned void because in violation of the 'due process' clause of our constitutions?

As aforesaid it is admitted and stipulated that neither of the sections as then written and enacted by the legislature, provided for any notice whatever, nor of any opportunity whatever to be heard, before or at the time of creting such said districts, nor at or before the time of making the assessment of the valuation of the property within the district nor at the time or before the setting of the levy of the tax.

Section 11-2008, R.C.M.1947, as amended by section 1, chapter 75, Laws of 1953, is unconstitutional as taking property without due process. Said section 11-2008 provides for the establishment by the board of county commissioners, when properly petitioned, of fire districts. It further provides for the levy of a special tax upon the property within the district so established. This special tax assessment is to be collected as are other taxes. The decision of the commissioners to establish the district is final. The levy of the special tax upon the property within such district is for the purpose of buying apparatus and maintaining the fire department of any such district, or for the purpose of paying to a city or town the consideration provided for in any contract with the council of such city or town for the extension of fire protection service to property within such district. This is a special assessment. The statute under consideration here does not provide for any notice to the property owners affected, of the creation of the district nor any notice that the special tax assessment is to be levied upon them, nor does the act provide that the taxpayer may appear and be heard before his property is subjected to the tax. For these reasons, this legislative act is unconstitutional as being in direct conflict with section 27 of Article III of our Montana Constitution which provides that 'No person shall be deprived of life, liberty, or property without due process of law.' Emphasis supplied.

In addition the act impinges upon the first clause of the Fourteenth Amendment of the Constitution of the United States of America which commands that 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' Emphasis aupplied.

Here it can be honestly argued, that the law would be a beneficial one, and that through its proper application lives and property may be saved and that a number of such districts have been created under its provisions, but there is no excuse nor argument for the violation of the Constitution. The mere fact that others have violated the 'due process' clauses of our constitutions and that the contemplated action or actions taken may be thought to be in the best interest of the county or other subdivision and of the people thereof is not an admissible argument. The doctrine of expediency does not enter into the construction of statutes. Whatever reason prompted the legislature to enact these statutes, the intent of the said statutes is plain, and the courts may not sanction a violation of the constitutions, however beneficial such a law may seem. It is significant that due notice and hearing are now required to be given and had by the 1957 amendment to this statute, curing the constitutional defect of the original act.

This court has said that 'So long as ample provision is made for notice to every interested landowner and an opportunity for him to be heard before he may be affected adversely, it cannot be said that the statute operates to deprive him of his property without due process of law.' In re Valley Center Drain District, Big Horn County, 64 Mont. 545, 551, 211 P. 218, 221.

There are two United States Supreme Court cases arising out of the State of Mississippi and one case from the Supreme Court of Mississippi. Under the facts of those cases the results reached therein were correct as follows: The holding in Hutchins v. Board of Supervisors of Alcorn County, 227 Miss. 766, 87 So.2d 54, 57, that 'where local improvements of a public nature are constructed under laws providing that the cost shall be paid in whole or in part from the proceeds of special assessments to be levied on the property beneficially affected thereby, the property owners have a right to notice and an opportunity to be heard before special assessments can be legally imposed upon the property [Citing cases.]' is the correct rule and is the rule that should be applied in this case. Emphasis supplied. In the case at bar the statute provides for a special tax requiring a special assessment upon the property to be beneficially affected to the end that those benefited shall pay the whole cost through the special tax, the proceeds used in buying the apparatus and maintaining the fire department of the district or paying a city or town for extension of such fire protection to the district.

The Hutchins case, supra, clearly points out the fact that a special tax or assessment was not to be imposed in that case. There the cost of the improvements were to be raised by the general taxing powers of the county. They point out that the state law gave the property owners a right to be heard upon the valuation of his property for general taxation. So also does the law of the State of Montana in respect to general county taxes. But nowhere in this statute, R.C.M.1947, § 11-2008, is such provision made in respect to this special tax. Due process is not limited to a guarantee of the opportunity to object to the value placed on property for tax purposes when the tax involved is such as imposed here. That is but a facet of 'due process'. Under the general tax statutes of the State of Montana, taxpayers must be notified of the assessment of their property. In addition they must be given an...