Kelley v. Rhoads

• Decision Date: 06 January 1898
• Citation: 7 Wyo. 237,51 P. 593
• Parties: KELLEY v. RHOADS, COUNTY ASSESSOR
• Court: Wyoming Supreme Court

51 P. 593

7 Wyo. 237

KELLEY v. RHOADS, COUNTY ASSESSOR

Supreme Court of Wyoming

January 6, 1898

RESERVED Questions from the District Court for Laramie County, HON. JOSEPH L. STOTTS, Judge of Fourth District presiding.

Plaintiff John Kelley, having brought this action against the defendant, Oliver F. Rhoads as county assessor, to recover certain taxes collected upon a herd of sheep belonging to him, upon issue having been joined, the parties agreed upon a statement of facts in substance as follows: The defendant was the duly elected, qualified, and acting county assessor from the 7th day of January, 1895, until the 4th day of January 1897. The plaintiff, who was a resident and a citizen of the State of Kansas, was the owner of certain sheep numbering about ten thousand head, which, on or about October 29, 1895 were in the county of Laramie, in charge of an agent who was driving and transporting them through the State of Wyoming from Utah to Nebraska. In driving said sheep, it was the practice to permit them to spread out at times in the neighborhood of a quarter of a mile, and while being so driven to graze over land of that width. In some instances they were driven through large pastures, in other instances through the public domain, and in other instances through pastures enclosed by fences; and while being so driven from the western boundary of the State to Pine Bluffs station (which is located near the eastern boundary) they were maintained solely by grazing along the route of travel. Said sheep were duly returned by plaintiff for taxation and were assessed for 1895 in the county of Juab, Utah.

On October 29, 1895, the defendant, in company with the deputy sheriff of the county of Laramie, collected $ 250 from said agent, alleged to be tax as due for the current year, 1895. Before said collection, upon demand therefor, payment was refused by plaintiff's agent, whereupon defendant stated to him that he "could" or "would" take enough sheep and sell them to pay the said taxes with costs. Thereupon, to prevent the seizure and sale of such sheep and the damages which must thereby accrue, said agent paid said sum of money to the defendant.

It was a fact, and defendant was notified thereof, that said herd of sheep was driven across this State for the purpose of shipment, and that the same were not brought into the State for the purpose of being maintained permanently therein.

At the time of the regular assessment of property for taxation for 1895, the plaintiff had no property in the State. At the time of such assessment, plaintiff had no notice of the time or place of the meeting of the board of equalization, or that any assessment had been made against him in said county or State; and he had no property within the State at the time the 1895 taxes were regularly and legally levied in the county of Laramie. Plaintiff demanded from defendant a return of the amount of tax so collected, which was refused. The time consumed in driving said sheep through Wyoming was from six to eight weeks, and by the route traveled the distance was about five hundred miles. Said taxes were assessed, levied, and collected by defendant without the action, authority, or assistance of the board of county commissioners or any other officer of said Laramie County. Said property was not regularly assessed in any other county of the State for that year, and no taxes thereon had been paid in any other county of the State. For shipment purposes, it was not necessary that the sheep should be driven into Wyoming, and the railroad over which they were shipped could be reached from the point from which they were first driven, by traveling a less distance than was required to drive them to any point in this State. The tax was paid without any protest other than appears above. The amount collected was prior to the commencement of the suit, paid over by defendant to the county treasurer, and by the latter distributed in the manner provided by law--part to the State, part to the school district in which the sheep were found, and part to the county. There is now pending in the same district court an action by plaintiff against the defendant individually for the recovery of the same money.

Upon the submission of the cause upon the facts agreed to as aforesaid, the district court reserved to this court for its decision as important and difficult questions the following:

1. Were live stock driven and transported in the manner plaintiff's sheep were, subject to taxation in the year 1895?

2. Were these sheep driven in Wyoming for the purpose of being grazed within the meaning of the law authorizing the taxation of such property?

3. Does the fact that the said sheep were returned by the said plaintiff for taxation and assessed by the assessor and collector of taxes for the year 1895, in the county of Juab, Territory of Utah, exempt such property from taxation in this State for that year?

4. Was the payment of the tax by the plaintiff, under the evidence in this case, a voluntary or involuntary payment, and was the payment so made that the plaintiff would be authorized under the law to recover the taxes so paid?

5. Does the fact that the plaintiff was never given a hearing before the board of county commissioners, as a board of equalization, or was never given any notice of the assessment and levy of said taxes, render said taxes illegal so far as plaintiff is concerned?

6. Is Chap. 61, Sess. Laws 1895, authorizing county assessors to assess, levy, and collect taxes upon live stock brought into their respective counties to graze, constitutional?

7. For the recovery of taxes as paid in the manner set forth in this case, against whom should a suit be brought; and in this case is the suit brought against the proper person?

8. What judgment should be entered by this court in this case?

Van Orsdel & Burdick, for plaintiff.

The act of the Legislature (L. 1895, Ch. 61) requiring the assessor to levy and collect a tax from all live stock brought into the State, without regard to whether such stock is in transit or to be maintained in his county permanently, is contrary to the spirit and intent of Sec. 8, Art. 1, U. S. Const., relating to interstate commerce. The method of transportation of live stock usually designated as, "on hoof," or "by trailing," is a well recognized and regularly employed one. The animals as in transit, that is by being driven through the State from one State to another, are no less employed in interstate commerce than when carried on cars. (Rorer, Int. St. L., 311; Cooley on Taxation, 62; Black's Const. L., 167-186; Tel. Co. v. Tel. Co., 6 Otto, 1; Brown v. Maryland, 12 Wheat., 419; Robbins v. Shelby Tax. Dist., 120 U.S. 489; Brown v. Houston, 114, id., 622; McCollough v. Md. 4 Wheat., 316; Crandall v. Nev., 6 Wall., 35; Almy v. Cal. 24 How., 169; Woodruff v. Parham, 6 Wall., 123; Welton v. Mo. 91 U.S. 275; St. L. v. Ferry Co., 11 Wall., 423; Hays v. Steam Co., 17 How., 596; Leisy v. Harden, 135 U.S. 150; Chicago v. R. R. Co., 125 id., 465; 9 Wheat., 1; 22 How., 227; 147 U.S. 396; 112 id., 69; 18 F. 10; 5 Wall., 557; 20 Wall., 430; Guy v. Balt., 100 U.S. 434; Walling v. Mich. 116 U.S. 446; Tel. Co. v. Tex. 105 id., 460; Tel. Co. v. Ala. Bd. , 132 id., 472; In re Pa. Tel. Co., 20 A. 846; Coe v. Errol, 116 U.S. 577.)

It is the privilege of not only the citizens of this State, but of any citizen of the United States, to use the public roads and highways for the transportation of himself or property. To deny that right to non-residents would conflict with Sec. 2, Art. 4, and Art. 14 of the federal Constitution. The right of any person to graze his live stock upon the public domain can not be questioned, and is not a subject of State legislation. (Op. Atty. Gen'l., 1895, 1896, pp. 32, 33; Buford v. Houtz, 10 S.Ct. R., 307.) Double taxation is not favored by the courts. (R. R. Co. v. Jackson, 7 Wall., 262; Frontier L. & C. Co. v. Baldwin, 3 Wyo. 771.) The act of 1895 made no provision for hearing and review; and its provisions violate the constitutional mandates as to the uniformity in assessments, and prohibitions as to taking property without due process of law. (Const., Art. 1, Sec. 5, Sec. 28; Art. 15, Sec. 11; Fletcher v. Oliver, 25 Ark. 289; R. R. Tax Cases, 13 F. 735; Bank v. Hines, 3 O. St., 1; Desty on Taxation, 175; R. R. Co. v. Boone Co., 44 Ill. 240; Lydecker v. Englewood, 41 N.J.L. 154.) Some form of notice with an opportunity to be heard is essential to a valid assessment. (Lyon Co. v. Sargent, 24 Kan. 572; Com'rs. v. Lang, 8 id., 284; Phil. v. Miller, 49 Pa. 449; Sligh v. Grd. Rapids, 84 Mich. 497; Three Rivers v. Smith, 99 id., 507; Cooley on Taxation, 266; 96 U.S. 104; 13 Cal. 325; 3 Neb. 43; 7 id., 253; 9 Mo. App., 255; 38 N.J.L. 83; Desty on Taxation, 600; 74 N.Y. 183; 1 L. R. A., 688; 39 F. 891; 18 id., 411; 13 id., 147; 30 A. 962.) The statute is therefore unconstitutional because, 1. It deprives an owner of his property without a hearing. 2. Is not uniform in the mode of assessment. 3. It violates every tenet of the maxim that "the tax which each is to pay ought, as respects the time and manner of payment, and the sum to be paid, to be certain and not arbitrary." (Cooley on Taxation, 6-8.) This court has decided that an action to recover money illegally collected as taxes should be brought against the collecting officer. (Powder R. Cattle Co. v. Johnson Co., 3 Wyo. 598; Johnson Co. v. Searight Cattle Co., id., 776.) And the rule of stare decisis applies.

The property of plaintiff was clearly an object of interstate commerce, which fact defendant had notice of; as an object of interstate commerce, it was not subject to such legislation as interfered with its free transit across the State; the terms "commerce" and ...