Lemhi County v. Boise Live Stock Loan Co.

Decision Date04 June 1929
Docket Number5119
Citation278 P. 214,47 Idaho 712
PartiesLEMHI COUNTY, IDAHO, on Relation of EARL R. GILBREATH, in His Official Capacity as Tax Collector of Lemhi County, Idaho, Appellant, v. BOISE LIVESTOCK LOAN COMPANY, a Corporation, and SALMON SHEEP COMPANY, a Corporation, Respondents
CourtIdaho Supreme Court

STATUTES-VOID AMENDATORY ACT-EFFECT OF-TAXATION-COLLECTION OF TAXES-PROCEDURE-LIMITATION OF ACTIONS.

1. Where C. S., secs. 3272, 3313, 3321, as enacted by Laws 1919 chap. 75, amending C. L., chap. 133, secs. 150, 188, 196 providing for the collection of taxes by county, were void under Const., art. 18, sec. 6, prior to amendment thereof (see Laws 1929, p. 690), amendatory act of 1919 had no force or effect and did not operate to repeal C. L., chap. 133 secs. 150, 188, 196, either by direct terms or by implication.

2. Generally, procedure prescribed by statute for collecting taxes is exclusive, except in cases where statutory remedy is inadequate or has been exhausted without satisfaction precluding maintenance of action at law.

3. Where county has adequate remedy for the collection of taxes under C. L., chap. 133, secs. 150, 188, 196, providing for collection by distraint or suit aided by attachment, action in replevin to recover property to satisfy taxes will not lie, in absence of showing that remedies by distraint and attachment have been exhausted without full satisfaction of county's claim.

4. Where statutory method of enforcement and collection of taxes is adequate and complete, equity will not take jurisdiction of suit to enforce tax lien.

5. Limitation prescribed by C. S., sec. 6611, requiring action upon liability created by statute to be commenced within three years, applies to actions brought by counties, in view of sec. 6618, providing that limitations prescribed apply to actions brought in NAME of or for benefit of state in same manner as action by private parties.

6. C. S., sec. 3097, providing that tax lien shall only be discharged by payment, cancelation or rebate of taxes does not operate to take enforcement of lien out of general statutes of limitation.

7. Statutes of limitation are statutes of repose so far as civil actions are concerned and do not extinguish lien, but apply only to remedy and cut off right of enforcement, although lien still exists.

8. Action to enforce lien for taxes is fundamentally suit to collect tax, and therefore action upon liability created by statute making applicable limitation of three years prescribed by C. S., sec. 6611.

9. Where more than three years had elapsed since taxes became delinquent and no facts were pleaded in action to enforce lien tolling three-year statute of limitation prescribed by C. S., sec. 6611, action was barred.

10. In order that pendency of other proceedings shall have effect to toll statutes of limitations upon cause of action, proceedings must be such as to prevent enforcement of remedy by action.

11. Where issues involved in action to enforce lien for personal property taxes were not involved in former proceeding between third parties, and were not before court in former case, and appeal and supersedeas in that case did not prevent county from enforcing by action remedy for collection of taxes prescribed by C. L., chap. 133, secs. 150, 188, 196, pendency of such proceedings did not toll three-year statute of limitation prescribed by C. S., sec. 6611.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.

Action to recover personal property taxes. From a judgment of dismissal on sustaining demurrer to complaint, plaintiff appeals. Affirmed.

Judgment affirmed, with costs to respondents.

Francis R. Hall, Jr., and L. E. Glennon, for Appellant.

The supreme court of California, in the case of San Francisco v. Luning, 73 Cal. 610, 15 P. 311, which action was commenced seven years after the levy of the tax, and in which no facts were pleaded showing a tolling of the statute, it was held that the action was barred. That, however, was an action to recover personal judgment; and, while the question was not before the court, it is clearly indicated in the opinion that if the action had been one to enforce the tax lien, the ruling would have been different.

In the case of Board of Commrs. of Custer County v. Storey, 26 Mont. 517, 69 P. 56, which also was an action to recover a personal judgment for taxes, the court affirmed the judgment of the lower court, sustaining the demurrer on the ground that the statute of limitations had run against the action but pointed out that another remedy was available for the collection of the taxes.

There is a clear distinction between the right of the county to recover a personal judgment and its right to enforce the lien of taxes by distraining and selling the personal property charged with such lien.

"A court of equity has inherent jurisdiction of proceedings to enforce a tax lien independently of any statute. If personal property subject to such a lien is in the possession of a third person, the proper officer may maintain replevin to recover it, and if it has been sold, he may proceed in equity to charge the proceeds of sale with the tax liens." (37 Cyc. 1242.)

E. H. Casterlin and Dean Driscoll, for Respondents.

An action to collect an ordinary tax is a liability created by statute, and is barred after three years. (37 C. J. 784; Chambers v. Gallagher (Inheritance Tax), 177 Cal. 704, 171 P. 931; Dranga v. Rowe (City Tax), 127 Cal. 506, 59 P. 944; City of San Diego v. Higgins, 115 Cal. 170, 46 P. 923; Los Angeles County v. Ballerino, 99 Cal. 593, 32 P. 581, 34 P. 329.)

In order that the pendency of legal proceedings shall have the effect to toll the statute of limitations upon a cause of action the proceedings must be such as to prevent the enforcement of the remedy by action. (37 C. J. 1040, note 70; Lindholm v. Heithecker, 113 Kan. 96, 213 P. 671.)

VARIAN, J. Givens, T. Bailey Lee and Wm. E. Lee, JJ., and Brinck, D. J., concur.

OPINION

VARIAN, J.

Appellant brought this action to obtain possession of certain sheep and livestock assessed for the years 1920 and 1921 to Mayfield Land & Livestock Company, a corporation, and in case said property cannot be returned, for personal judgment against respondents for the amount of said taxes, penalties and interest. Respondents demurred jointly to the second amended complaint, pleading among other grounds that each of the two causes of action was barred by the provisions of C. S., sec. 6611. The demurrer was sustained on that ground, and appellant appeals from a judgment of dismissal thereafter entered.

The only question involved in this appeal is whether the court erred in holding the causes of action barred by the statute of limitations. (C. S., sec. 6611.) Appellant concedes that personal actions for the recovery of a tax are barred by the statute. It is contended that this is an action to obtain possession of the property in order to subject it to the payment of the lien, and is therefore not barred.

C. S., sec. 3268, provides that all taxes levied under the provisions of chap. 144 shall be a lien upon the personal property so assessed, and C. S., sec. 3097, provides that the lien "shall only be discharged by the payment, cancellation, or rebate of the taxes as provided in this chapter." (Scottish American Mtg. Co. v. Minidoka County, 47 Idaho 33, 272 P. 498.)

When the right to collect the taxes involved in this action accrued, appellant had several statutory methods which it might have employed in collecting them. C. S., sec. 3272, amended Sess. Laws 1921, chap. 145, sec. 1, p. 333, provided that if any tax due on personal property was not paid on demand or payment secured, the assessor must distrain and sell so much of said property as might be necessary to pay said taxes, or forthwith bring suit with attachment for such taxes or the estimated amount thereof. Under C. S., sec. 3321, amended Sess. Laws 1921, chap. 145, sec. 3, p. 333, the assessor was authorized to collect by suit in the name of the county, "in which suit an attachment may be issued against any property" belonging to the owner of said personal property assessed. Again, C. S., sec. 3313, provided that "the assessor must seize and sell so much of such personal property or any other property" of the person assessed, sufficient to pay such tax "as estimated by the assessor." C. S., secs. 3272, 3313, and 3321, were taken from the 1917 statutes amended in 1919 (Sess. Laws 1919, chap. 75, pp. 262, 270, 271, amending Comp. Laws, chap. 133: 150, 133:188, and 133:196, which were amending sections of the act of 1917; see Sess. Laws 1917, p. 129, sec. 150; p. 143, sec. 188; p. 144, sec. 196). Prior to the amendment of sec. 6, art. 18, of the constitution, at the election held in November, 1928, C. S., secs. 3272, 3313, and 3321, were unconstitutional and void, because that section of the constitution did not then authorize the assessor to collect taxes.

The amendatory act of 1919 (carrying C. S., secs. 3272, 3313, and 3321), being void under the constitution, had no force or effect, and cannot operate to repeal Compiled Laws, chaps. 133:150, 133:188, and 133:196 (being said secs. 150, 188, and 196, Sess. Laws 1917, chap. 55, secs. 1, 2), either by direct terms or by implication. (36 Cyc., p. 1098; Bissett v. Pioneer Irrigation District, 21 Idaho 98, 120 P. 461.) These remedies were therefore open to appellant up to the time of the commencement of the present action. In 1927, the legislature repealed C. S., secs. 3272 and 3321, and provided in lieu thereof a different manner of proceeding to enforce tax liens by suit. (Sess. Laws 1927, chap. 263, p. 572.)

At the time these taxes accrued, appellant was likewise entitled to a lien...

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