Hilburn v. St. Paul, M. & M. Ry. Co.
| Decision Date | 09 October 1899 |
| Citation | 58 P. 551,23 Mont. 229 |
| Parties | HILBURN, County Treasurer, v. ST. PAUL, M. & M. RY. CO. et al. [1] |
| Court | Montana Supreme Court |
Appeal from district court, Flathead county; D. F. Smith, Judge.
Action by Samuel Hilburn, as county treasurer of Flathead county Mont., against the St. Paul, Minneapolis & Manitoba Railway Company and Great Northern Railway Company. There was a judgment for plaintiff, and defendants appeal. Reversed.
Action by the plaintiff, as county treasurer of Flathead county, to foreclose a lien claimed on account of special taxes levied in school districts Nos. 6, 17, 19, 21, 23, 26, and 15, in Flathead county, for the year 1897. The complaint sets forth seven separate causes of action. In the first cause of action, after setting forth the official character of the plaintiff and the corporate character of the defendants, it proceeds to allege substantially as follows: That on the first Monday of March, 1897, and during all that day, the defendant the St. Paul, Minneapolis & Manitoba Railway Company was the owner of 197.5 miles of roadbed, roadway rails, and certain rolling stock, the assessed valuation of which was fixed for the year 1897 by the state board of equalization of the state of Montana, at the time and in the manner provided by law, at $4,600 per mile. That on the second Monday of September, 1897, the board of commissioners of Flathead county caused to be entered in the proceedings of said board an order stating and declaring the number of miles of said railroad in school district No. 6 of said county to be 62.65 miles, at the assessed value aforesaid of $4,600 per mile. That the defendant the Great Northern Railway Company on the first Monday of March, 1897, and during all that day was the lessee of the above-described property belonging to its co-defendant railway company, and during all of said day was in control of said line of railway and rolling stock, and operating the same. That at the same time the Great Northern Railway Company was the owner of certain depots, section houses, water tanks, tool houses, and other property located in said Flathead county upon the right of way of its said co-defendant, and upon the line of the Great Northern Railway, a particular description of which is shown by the return of said Great Northern Railway Company for the year 1897 to the county assessor of said county, and attached to and made a part of the complaint as Exhibit A. That at all times mentioned herein school district No. 6 of Flathead county was, and is now, a duly and regularly created and organized school district of said county, with a board of trustees consisting of three members. That at a regularly called special meeting of the board of trustees of said district, held at the school house therein, on the 15th day of March, 1897, certain proceedings were had by the said board, as shown by its records, as follows: "The board voted to submit to the qualified voters of this district the levy of a special tax of $2,000 to maintain schools, to be voted on at the next school election, April 3, 1897." That at said meeting the purpose for which said money was to be used, if voted, was discussed by the said board, and that said money was to be raised for the purpose of paying salaries of teachers of the schools of said school district and for furnishing other additional school facilities. That the trustees at said meeting understood and intended the words "to maintain schools" to cover and include, and said words did cover and include, the purpose of raising money to pay the salaries of teachers and furnish other school facilities. That, in pursuance of said action of the board of trustees to submit the question aforesaid to an election of the qualified voters of said district, such election was called by posting notices in three public places in said district for a period of time more than 15 days before the day of election, a copy of which notice is as follows: It is further alleged: That the words "for maintaining school" in said notice were understood and intended by said board of trustees to cover and include, and the said words did cover and include, the purpose of raising money to pay the salaries of teachers and furnish other school facilities. That the said election was held at the district school house in said district on the 3d day of April, 1897, and that at said election 117 legal votes were cast for "Tax, Yes," and 4 votes for "Tax, No." That the officers of said election thereupon certified to J. B. Gibson, the assessor of Flathead county, the fact that a majority of the votes cast at said election were for "Tax, Yes." That said J. B. Gibson, as assessor, thereupon copied from the last assessment roll of said county the list of property liable to taxation situated in or owned by residents of said school district, and delivered the same to the board of trustees of said school district. That said list included the taxable property of said defendants in said district situated therein on the first Monday of March, 1897, viz.: As belonging to the St. Paul, Minneapolis & Manitoba Railway Company, Great Northern Railway Company, lessee, franchise, roadbed, rails, and rolling stock, 62.65 miles, assessed at $4,600 per mile, making a total valuation of $288,190; as belonging to the Great Northern Railway Company, buildings, turntables, water tanks, tool houses, and coal docks at Summit, Bear Creek, Java, Essex, Paola, Nyack, Belton, Coram, and Columbia Falls stations, assessed for the year 1897 at a valuation of $12,675; and that the total valuation of the taxable property of said defendants in said school district for the year 1897 was $300,865. That the board of trustees of said school district, upon receiving the assessment roll aforesaid from the county assessor, gave five days' notice thereof by posting a notice in three public places in said district, and sat for one day as a board of equalization at the school house in said district on the 16th day of August, 1897, for the purpose of equalizing the property in said district. That the said board of trustees, upon receiving from the assessor the said list of property, deducted 10 per centum therefrom for anticipated delinquencies, and divided the $2,000, the sum voted as stated in said notice of election, by the amount stated in said list, less the 10 per centum deducted, and from such division ascertained that the rate per centum required was six mills on each dollar of the taxable property in said district. That the special school levy in said district for the year 1897 was then and there fixed at six mills on each dollar of the taxable property. That, as soon as they had ascertained the rate of taxation to be six mills on each dollar as aforesaid, the board certified the same to Michel Therriault, the county clerk of said Flathead county, who extended the same on the general assessment roll of said country for the year 1897, and certified the same to Samuel Hilburn, the plaintiff herein, as treasurer, for collection. That the amount of taxes so extended for the year 1897 against the property of the defendant the St. Paul, Minneapolis & Manitoba Railway Company, the Great Northern Railway Company, lessee, was $1,729.14, and the amount of taxes so extended against the property of the defendant Great Northern Railway Company was $76.05. That said special taxes for the year 1897 were not paid, but became delinquent. That thereupon the plaintiff, as county treasurer, published in the delinquent list, as required by law and in the manner provided, the names of the said defendants, and a description of the property owned and controlled by them in said school district No. 6, together with a notice that, unless the taxes delinquent, with the costs and percentages, should be paid, the real property on which said taxes were a lien would be sold at public auction in front of the county treasurer's office on the 17th day of January, 1898. That the cost of said publication was one doller. That thereafter, on January 10, 1898,the defendants, by their attorney and agent, A. J. Shores, filed a written protest with the treasurer, protesting against such sale, claiming that the assessment of said special school taxes was void, and specifying the grounds upon which said claim was founded. That thereupon the said county treasurer with-drew the said property from sale, and reported the case to the board of commissioners of said county, for its direction in the premises. That thereafter, and before the commencement of this suit, the said board of commissioners directed the foreclosure of the lien of said tax by action. That no part of said taxes levied as aforesaid, amounting to $1,805.19, has been paid, and the same are now due and owing, together with 10 per centum penalty upon the said sum added for the non-payment thereof, and 12 per centum interest thereon from the first Monday of December, 1897, with costs of collection, including one dollar for advertising and 10 per centum for attorney's fees. The allegations set forth in the other causes of action are substantially the same as in the first cause of action. They are therefore omitted from this statement. Judgment is demanded by plaintiff for the amounts alleged to be due and...
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