Missouri River Power Co. v. Steele

• Decision Date: 29 May 1905
• Parties: MISSOURI RIVER POWER CO. v. STEELE, County Treasurer.
• Court: Montana Supreme Court

80 P. 1093

32 Mont. 433

MISSOURI RIVER POWER CO. v. STEELE, County Treasurer.

Supreme Court of Montana

May 29, 1905

Appeal from District Court, Lewis and Clarke County; Henry C. Smith Judge.

Action by the Missouri River Power Company, a corporation, against W. L. Steele, treasurer of Lewis and Clarke county. From an order granting plaintiff's application for an injunction pendente lite, defendant appeals. Reversed.

Albert J. Galen and F. W. Metler, for appellant.

Toole & Bach, for respondent.

HOLLOWAY J.

This is an appeal from an order of the district court granting an injunction pendente lite. The object of the suit is to restrain the county treasurer of Lewis and Clarke county from selling certain real estate belonging to plaintiff for delinquent taxes assessed against such property for the year 1902.

It is alleged in the complaint that on January 20, 1902, Hon. Henry C. Smith, senior judge of the district court of Lewis and Clarke county, duly appointed a board of appraisers pursuant to the provisions of section 3698 of the Political Code and amendments thereto; that such board did fix the valuations upon plaintiff's real property; that the plaintiff presented to the county assessor a list of such property showing a total actual valuation thereof of $430,365, but notwithstanding this, the county assessor of Lewis and Clarke county, without himself estimating the value of such property, affixed the valuations so determined upon by the board of appraisers at $763,370; that plaintiff appeared before the board of equalization and sought a reduction of its assessment, but its application was denied, except as to a small portion thereof; that plaintiff has paid all taxes on its personal property for the year 1902, and tendered payment of the taxes upon its real property upon the valuation thereof as listed by the plaintiff, but that this tender was refused. It is then alleged that the county treasurer has advertised such real property for sale to pay the taxes assessed against the same upon the valuation made by the board of appraisers and listed by the assessor, as corrected by the board of equalization. To the complaint, which was verified positively, an answer was filed, verified upon information and belief, and upon these pleadings only the court heard the application for a temporary injunction, and made the order complained of. It is conceded that the answer had no evidentiary value.

A number of minor questions are suggested which need not be considered. The principal contention is embodied in the query: Was section 3698, Pol. Code, as amended by an act of the Fifth Legislative Assembly, approved March 3, 1897 (Sess Laws 1897, p. 195), constitutional? (This section and section 3699 were repealed by an act of the Eighth Legislative Assembly, approved February 6, 1903. Sess. Laws 1903, p. 1, c. 1.) If this section was constitutional, then there is no merit in plaintiff's contention; if not, then the injunction was properly granted.

Section 3698 above, as amended, among other things, provides: "That in all counties in the state of Montana which now have, or those which may hereafter acquire, a total assessment of eight million dollars or more, the judge of the district court, or if there be two judges in the district then the senior judge of said district court, shall on or before the second Monday of February of each year, designate three reputable citizens who shall be residents and tax-payers in the county for which they are appointed, who shall constitute a board of appraisers whose duty it shall be to fix valuation of real estate in the county for the purpose of assessment by the county assessor, which valuation so fixed by said board of appraisers whose duty it shall be to fix valuation of real estate in the county for the purpose of assessment by the county assessor, which valuation so fixed by said board of appraisers shall constitute the value or 'true value' of such real estate. *** The assessor, in making up his assessment list of said estate, is hereby prohibited from assessing any greater or less value upon any piece of real estate than that so fixed by said board of appraisers. *** It shall be the duty of the county assessor to attend the meeting of the board of appraisers and give such board all the information in his possession concerning property to be assessed and its valuation." The contention of the plaintiff is that, as the Constitution (article 16, § 5) provides for the election of an assessor in every county, no other person than such assessor can fix the valuation of property for revenue purposes, and urges that this question was determined in Mutual Life Insurance Co. v. Martien, 27 Mont. 437, 71 P. 470. In the Martien Case this court construed that portion of section 5, art. 16, above, which reads as follows: "There shall be elected in each county *** one treasurer, who shall be collector of taxes;" and held that this language, when read in the light of section 29, art. 3, of the Constitution, prohibited any one else from being such collector. That case proceeded upon the theory that, as the Constitution had designated one particular officer as collector, or, in other words, had defined one duty of the county treasurer, and as the Constitution expressly declares that its provisions are mandatory and prohibitory, unless by express terms they are declared to be otherwise, therefore on one else could lawfully act as collector of taxes. The language construed was clearly susceptible of no other interpretation. But has this decision any application here?

The provision of the Constitution relative to the office of assessor found in section 5, art. 16, above, is merely that there shall be elected in each county one assessor. That ...