Johnson v. Johnson

• Decision Date: 05 November 1932
• Docket Number: 6940.
• Citation: 15 P.2d 842,92 Mont. 512
• Parties: JOHNSON et al. v. JOHNSON, County Treasurer, et al.
• Court: Montana Supreme Court

15 P.2d 842

92 Mont. 512

JOHNSON et al. v. JOHNSON, County Treasurer, et al.

No. 6940.

Supreme Court of Montana

November 5, 1932

Appeal from District Court, Granite County; George B. Winston Judge.

Action by Alfred Johnson and another against J. W. Johnson, as Treasurer of Granite County, and others. From a judgment of dismissal, plaintiffs appeal.

Reversed and remanded with direction.

Court does not substitute its judgment for that of taxing authorities in action to recover tax paid under protest, but merely determines as matter of law whether evidence presented to state board of equalization was sufficient to sustain its order (Rev.Codes 1921, § 2269, as amended by Laws 1925, c 142).

E. G Toomey, of Helena, and R. E. McHugh, of Philipsburg, for appellants.

L. A. Foot, Atty. Gen., and C. N. Davidson, Asst. Atty. Gen., for respondents.

MATTHEWS J.

The plaintiffs, Alfred and Victor Johnson, have appealed from a judgment of dismissal entered in an action instituted by them against the assessor, the treasurer, and the board of county commissioners of Granite county, and the state board of equalization, to recover the amount, paid under protest, as taxes on certain lands for the year 1930. The judgment was entered after defendants' general demurrer to the complaint had been sustained and plaintiffs had declined to further plead; it recites that all proceedings in eleven like cases are stayed awaiting the disposition of this appeal.

The only question presented herein is as to the sufficiency of the complaint to withstand the assault of a general demurrer.

In support of the judgment, counsel for the defendants contend that many of the allegations of the complaint contain either pure conclusions of law, opinions of the pleader, conclusions of fact, or mere inferences, the truth of which is not admitted by the demurrer (49 C.J. 440), and with these disregarded and only those properly pleaded taken into consideration, the complaint does not state sufficient facts to constitute a cause of action. This position requires a too narrow view of the complaint under the rules of practice and pleading in this jurisdiction.

While a bare legal conclusion does not aid the pleader, as it is ineffective for any purpose as a pleading (Ridpath v. Heller, 46 Mont. 586, 129 P. 1054; Lunke v. Egeland, 46 Mont. 403, 128 P. 610), and is therefore insufficient to withstand a general demurrer (Bordeaux v. Greene, 22 Mont. 254, 56 P. 218, 74 Am. St. Rep. 600), the allegations of a complaint must be liberally construed with a view to substantial justice between the parties. Section 9164, Rev. Codes 1921. Under the legislative mandate, a complaint attacked by general demurrer will be held sufficient, although defective in many particulars, if it alleges directly, or by necessary inference, facts showing the plaintiff's primary right and its infringement by the defendant (McLean v. Dickson, 58 Mont. 203, 190 P. 924; Piatt & Heath Co. v. Wilmer, 87 Mont. 382, 288 P. 1021), and is sufficiently certain to enable the opponent to prepare his evidence to meet the alleged facts. Kozasa v. Northern Pac. Ry. Co., 61 Mont. 233, 201 P. 682.

Whatever is necessarily implied in, or is reasonably to be inferred from, an allegation is to be taken as directly averred. Gauss v. Trump, 48 Mont. 92, 135 P. 910; Cramer v. Broom Factory, 79 Mont. 222, 255 P. 346; Rhule v. Thrasher, 88 Mont. 468, 295 P. 266; Johnson v. Herring, 89 Mont. 156, 295 P. 1100. Matters of form and redundant matter will be disregarded, and if upon any view the plaintiff is entitled to any relief, the sufficiency of the pleading will be sustained. Donovan v. McDevitt, 36 Mont. 61, 92 P. 49; Biering v. Ringling, 78 Mont. 145, 252 P. 872; Wells-Dickey Co. v. Embody, 82 Mont. 150, 266 P. 869.

Good pleading neither requires nor permits the pleading of the evidence upon which the pleader relies to maintain his action. Outing Kumfy-Kab Co. v. Ivey, 74 Ind.App. 286, 125 N.E. 234; Hyman v. Langston, 210 Ala. 509, 98 So. 564. This rule is recognized and applied in First State Bank v. Mussigbrod, 83 Mont. 68, 271 P. 695.

The ultimate facts only should be set out; ultimate facts "are nothing more than issuable, constitutive, or traversable facts essential to the statement of the cause of action." Musser v. Musser, 281 Mo. 649, 221 S.W. 46, 50. The test as to whether the pleader has stated ultimate facts or conclusions of law is: Does the complaint state facts from which the court can determine that he is entitled to relief, or merely declare that the pleader is entitled to the relief demanded? State ex rel. Stephens v. Zuck, 67 Mont. 324, 215 P. 806. But difficulty arises from the fact that the line of demarcation between ultimate facts and conclusions of law is not clear. Riley v. Inter-State Association, 177 Iowa, 449, 159 N.W. 203. "A pleader may allege ultimate facts from which a legal conclusion identical with such facts would necessarily follow." 49 C.J. 46, note a.

The sufficiency of the complaint before us must be determined by the application of the foregoing rules.

The complaint and the assignments of error raise certain constitutional questions, disposition of which will be made in the general discussion of the law applicable to such a case as this.

It should be first noted that this action and the eleven like actions mentioned in the judgment are the outcome of the hearing and decision of the state board of equalization considered in Schoonover v. Stewart et al., 89 Mont. 257, 297 P. 476. By the order therein mentioned and set out in the complaint before us, the board reduced the assessment on all irrigated lands involved in appeals to it, and denied relief as to the "grazing lands" which are the subject-matter of this action and those others to which reference is made.

Reference may be had to the Schoonover opinion as to the steps taken by these plaintiffs prior to paying the challenged tax under protest; it is sufficient here to say that, by proper averments, the complaint discloses that the plaintiffs regularly pursued and exhausted their statutory remedy, without avail, and thereafter, on demand of the county treasurer "and not otherwise," paid the demanded tax under protest. The notice of protest, stating the grounds of protest, is set out in the complaint.

On appeal from the decision of the county authorities, the state board of equalization acts in a quasi judicial capacity, and, as the law does not provide for an appeal from its decision, its order is final and conclusive. Schoonover v. Stewart, above. This declaration, however, presupposes regularity of action and the application of honest judgment on the part of the board. The courts will, in certain instances, protect a taxpayer by means of the writ of certiorari or injunction, when he has exhausted the remedy afforded by appeal to the taxing authorities. Belknap Realty Co. v. Simineo, 67 Mont. 359, 215 P. 659; State ex rel. Souders v. District Court, 92 Mont. 272, 12 P.2d 852. In such a proceeding the court will not substitute its judgment for that of the taxing officials and, consequently, a mere overvaluation, honestly made, will not be disturbed; relief will only be granted on proof that the taxing officers have pursued a wrong method of assessment or have acted fraudulently or maliciously, or where error or mistake "so gross as to be inconsistent with any exercise of honest judgment" is shown. State v. State Board of Equalization, 56 Mont. 413, 185 P. 708, 186 P. 697; Danforth v. Livingston, 23 Mont. 558, 59 P. 916, 917; Schoonover v. Stewart, above.

In this jurisdiction, however, an aggrieved taxpayer need not invoke the extraordinary powers of the court, as provision is made for the payment of taxes, "deemed unlawful," under protest and the institution, within sixty days thereafter, of a direct action for their recovery. Section 2269, Rev. Codes 1921 as amended by Laws 1925, c. 142. This method of determining whether or not a demanded tax is "unlawful" is declared to be exclusive, unless the tax falls within the exceptions noted in section 2268, Id. First National Bank v. Sanders County, 85 Mont. 450, 279 P. 247; First National Bank v. Beaverhead County, 88 Mont. 577, 294 P. 956.

Section 2268 withdraws the power of the courts to restrain the collection of any tax or the sale of property for delinquency, except where the tax is "illegal" or the property exempt from taxation.

Reading the two sections together, it is clear that the Legislature did not use the term "unlawful," found in section 2269 as amended, for the purpose of confining the action there provided for to one attacking a tax on the ground that it was illegally laid, but intended thereby to permit an action for the recovery of any tax or any part thereof which could not lawfully be exacted.

In the case at bar the property of the plaintiffs was assessable for its full cash value and only the excess, if any, is "unlawful"; while the plaintiffs pray for judgment for the full amount of the tax paid under protest, if they prevail, the just tax on their property should, if possible, be upheld and only that shown to have been "unlawfully" collected should be returned to them.

Speaking of a similar action instituted under a like statute, the District Court of Appeals for the First District of California has said: "The assessment not being wholly void, this action, though cast in the form of an action to recover a tax paid under protest, is properly a proceeding to review the decision of the board of equalization. The function of the trial court, therefore, was to determine whether a correct method of valuing *** was pursued, and whether there was substantial evidence before the board in justification of the assessment made." Hammond...