Horton v. Driskell

• Decision Date: 27 June 1904
• Parties: HORTON, COUNTY TREASURER AND COLLECTOR OF TAXES, v. DRISKELL
• Court: Wyoming Supreme Court

77 P. 354

13 Wyo. 66

HORTON, COUNTY TREASURER AND COLLECTOR OF TAXES, v. DRISKELL

Supreme Court of Wyoming

June 27, 1904

ERROR to the District Court, Weston County, HON. JOSEPH L. STOTTS Judge.

J. W Driskell brought suit against Fred Horton, as County Treasurer and Collector of Taxes of Weston County, to enjoin the collection of a tax levied in said county for the year 1901 against the plaintiff upon cattle. From a judgment in favor of plaintiff defendant brought error. The facts are stated in the opinion.

Judgment reversed and case remanded.

D. A Fakler and E. E. Enterline, for plaintiff in error.

The court erred in denying the motion of the defendant below, plaintiff in error here, to non-suit the plaintiff for failure to answer the interrogatories attached to the defendant's answer. The interrogatories were properly propounded and were neither demurred to nor answered, and the motion for non-suit was timely interposed. (R. S. 1899, Secs. 3573-3575.)

It was error to require the defendant to elect upon which of the defenses contained in his answer he would proceed to trial. Defendant had a right to set up several defenses, even though they might be construed as inconsistent with each other. (R. S. 1899, Sec. 3544; Ry. Co. v. Warren, 3 Wyo. 134.) The defendant was by the erroneous ruling compelled to abandon his third defense, which sought to show the assessment of plaintiff's property under Sections 1798-1799, 1804-1816, R. S. 1899.

The allegation in plaintiff's reply to the effect that the entire assessment in the county was void was a departure from the matter set up in the petition, and should have been stricken out; the petition not alleging anything except that the cattle of plaintiff were erroneously assessed in Weston County.

The case having been presented and tried upon the theory that the home range of the cattle of plaintiff was in the County of Crook, and that his cattle were only taxable in that county, it was error to permit the filing of an amended petition basing the right to relief upon the alleged fact that the assessor had failed to verify the assessment roll. Thereby a new cause of action was substituted, and no finding whatever was made upon the issue presented by the original petition, but the case was determined principally upon the failure of the assessor to comply with the statute. (1 Ency. Pl. & Pr., 472, 473.)

The failure of the assessor to verify the assessment roll is not sufficient in itself to authorize equitable relief. (Fifield v. Marinette Co., 62 Wis. 532; Wood v. Helmer, 10 Neb. 165; Boeck v. Merriam, id., 199; Hunt v. Easterday, id., 165; Southard v. Darrington, id., 19; Challis v. Commrs., 15 Kan. 49; McNish v. Perrine, 14 Neb. 582; S. P. L. Co. v. Crete, 11 id., 342; Ry. Co. v. Lincoln Co., 62 Wis. 478; Lyman v. Anderson, 9 Neb. 367.)

Having failed to complain before the board, injunction will not be awarded. (R. S. 1899, Sec. 1788; Board v. Searight, 3 Wyo. 777.) The Board of Equalization was empowered to add the cattle of plaintiff to the assessment roll at its first meeting, the same having been neither listed by the owner nor assessed by the assessor. (R. S. 1899, 1785.) The petition does not state sufficient facts to entitle the plaintiff to any equitable relief. (10 Ency. Pl. & Pr., 925-932; 21 id., 925; Ins. Co. v. Boner, 24 Colo. 220; Tel. Co. v. Chamber (S. D.), 91 N.W. 78.)

Nichols & Adams, for defendant in error.

Plaintiff below was entitled to judgment upon the pleadings for the reason that no answer was filed to the amended petition, nor any motion made to strike it from the files. The County Board of Equalization has no authority to make an original assessment of property as was done in the case at bar. (R. S. 1899, Sec. 1858.) The home range of plaintiff was in Crook County, and his cattle was not taxable in Weston County. (Standard Cattle Co. v. Baird, 8 Wyo. 144.) The fact that cattle are mortgaged as ranging in two counties is no basis for assessment. It is no criterion upon which any official would be justified in assuming the number of cattle, and fixing the value thereof for taxation in his county, and evidence of such mortgage would be wholly immaterial. The plaintiff below never paid taxes in Weston County, and had no lands or improvements therein.

The court did not err in refusing to non-suit the plaintiff for failure to answer interrogatories, since the matter is entirely within the court's discretion. (44 Ohio St. 610; 4 O. C. C. Rep., 307.) The error, if any, was waived when the defendant undertook to supply the evidence sought to be obtained by the interrogatories. (Ry. Co. v. Henderson, 13 P. 910.) The discretion was not abused. (Richardson v. Coal Co., 32 P. 1012; Wells v. Snow, 41 P. 858; Ins. Co. v. Fisher, 44 P. 154; Harriman v. Ins. Co., 5 N.W. 12.) The answer sought to introduce new parties, and, asking affirmative relief, should be made as certain and definite as the petition, and be governed by the same rules of pleading. (Roundtree v. Brinson, 98 N. C., 107; Walker v. Larkin, 127 Ind. 100.) Pleading facts in the alternative is bad. (Ry. Co. v. Dusenbury, 94 Ala. 214; Wheeler v. Thayer, 121 Ind. 64; White v. Camp, 1 Fla., 109.) Two affirmative defenses may be joined only when the proof of one does not disprove the other, and when the remedy will be the same. The right to allow amendments in furtherance of justice is clearly given by the statute. (R. S., Sec. 3588; Redman v. Ry. Co., 3 Wyo. 678.)

If the assessment and levy was erroneous and unjust, as alleged in the petition, then it was illegal and unlawful, and the statute provides for the remedy by injunction. (R. S., Secs. 4172, 1803.) Tax proceedings are to be strictly construed and their validity must be affirmatively shown by the parties claiming under them. (Hecht v. Boughton, 3 Wyo. 385; Meyers v. Shields, 61 F. 713; Ry. Co. v. Carpenter, 27 Iowa 47.) The plaintiff was, therefore, clearly entitled to the injunction under either the original or amended petition; and as the court found generally for the plaintiff, it must be assumed that it found the home range of the cattle to be in Crook County, as alleged in the petition. The failure of the assessor to attach the statutory oath to the assessment roll rendered the assessment incomplete and invalid. (R. S. 1899, Sec. 1167; Marsh v. Supervisors, 42 Wis. 502; Hecht v. Boughton, supra; Cooley on Taxation, 289; Warner v. Grand Haven, 30 Mich. 24; Shelby v. Smith, 2 id., 486; Lacey v. Davis, 4 id., 140; Colby v. Russell, 3 Greene, 227; Foxcraft v. Nevins, 4 Ida., 72; Kelly v. Craig, 5 Ired., 129; Johnson v. Ellwood, 53 N.Y. 431; Van Rensselear v. Whitebeck, 7 N.Y. 517.) Where it is alleged that the complainant had no property subject to taxation, and that the tax was erroneous, illegal and unjust, then no tender was necessary, since no amount could be due, and, under plaintiff's allegations in the case at bar, he could rely upon the invalidity of the assessment for the neglect of the assessor aforesaid, which rendered the entire tax proceedings void. (Lamb v. Farrall, 21 F. 5; Griggs v. St. Croix, 20 id., 341; Reed v. Chandler, 32 Vt. 285; Rowe v. Hulett, 50 Vt. 667; Turnbridge v. Smith, 48 Vt. 648; Walker v. Burlington, 56 Vt. 131; State v. Schooley, 84 Mo. 447; Plummer v. Marathon Co. , 50 N.W. 416; Tierney v. Land Co., 47 Wis. 248; Marshall v. Benson, 48 id., 565; Schriber v. Kaehler, 49 id., 291; Power v. Kendschi, 58 id., 539; Morrell v. Taylor, 6 Neb., 236; Dickinson v. Reynolds, 48 Mich. 158; Bode v. Inv. Co., 6 Dak., 499 (42 N.W. 658.) The form of certificate when set forth in the statute must be strictly followed by the officer. (Westbrook v. Miller, 64 Mich. 129; Gilchrist v. Dean, 55 id., 244; Clark v. Crane, 5 id., 151; Black on Taxation, Sec. 199.) A property owner is not required to make complaint before the taxing board where the situs of the property is not within the board's jurisdiction. (Sioux City Bridge v. Dakota County (Neb.), 84 N.W. 607; Cooley on Taxation (1st Ed.), 528; Hutchinson v. Omaha, 72 N.W. 218; Const., Art. 14, Sec. 13; R. S. 1899, Secs. 1803, 4172.)

The board was without authority to make an original assessment. (Coal Co. v. Emler (Kan.), 24 P. 340; State v. Ernst (Nev.), 65 P. 7; Paul v. Ry. Co., 4 Dill., 35; Ry. Co. v. Cass County, 53 Mo. 17; Lowell v. Commrs., 146 Mass. 403; Black on Taxation, Sec. 133; Cattle Co. v. Board, 45 F. 323; Pavy v. Turnpike, 42 Ind. 400; Ry. Co. v. Donnellan, 2 Wyo. 478; R. S. 1899, Sec. 1858.)

CORN, CHIEF JUSTICE. KNIGHT, J., and POTTER, J., concur.

OPINION

CORN, CHIEF JUSTICE.

This was a suit to enjoin the collection, by the County of Weston, of taxes upon 1,500 head of range cattle. A temporary injunction was allowed and upon the hearing the court found in favor of the plaintiff and rendered judgment making the injunction perpetual. The plaintiff (defendant in error here) alleged in his petition that he paid taxes upon all his cattle in Crook County, where his home range was located, and that he had no cattle in Weston except such as had drifted there off their home range and were not subject to taxation in the latter county. The defendant, after a general denial, answered that the home range of plaintiff was in both Crook and Weston; that the 1,500 head in question were ranging, kept, herded and located in Weston, and plaintiff did not pay taxes upon them in Crook; that he did not list them to the assessor of Weston and the latter failed to assess them, but they were added to the assessment roll by the Board of Equalization.

A third defense set out, in substance, that the 1,500 head, upon which the tax in controversy was levied, were brought into the County of Weston by defendant in error after the regular annual assessment, and, not having been listed...