Murdock v. Murdock

• Decision Date: 17 January 1911
• Docket Number: 2149
• Court: Utah Supreme Court
• Parties: MURDOCK v. MURDOCK, County Treasurer, et al

113 P. 330

38 Utah 373

MURDOCK v. MURDOCK, County Treasurer, et al

No. 2149

Supreme Court of Utah

January 17, 1911

APPEAL from District Court, Fourth District; Hon. J. E. Booth Judge.

Action by James S. Murdock against Lavina Murdock, Treasurer of Wasatch County, and others, to recover certain taxes paid under protest.

Judgment for plaintiff. Defendant, Heber City, appeals.

AFFIRMED.

J. H McDonald, H. J. Dininny and Robert Anderson for appellant.

A. C Hatch for respondent.

FRICK, C. J. McCARTY and STRAUP, JJ., concur.

OPINION

FRICK, C. J.

The respondent brought this action pursuant to the provisions of section 2684, Comp. Laws 1907, to recover from the defendants Lavina Murdock, as treasurer of Wasatch County, Utah, and from Heber City, a municipal corporation of said county, the amount stated in his complaint, upon the ground that said amount was paid to said Lavina Murdock as treasurer under protest for municipal taxes levied by said city for the year 1909, which taxes, it is alleged, were illegal and void because the sheep upon which all of said taxes were levied at no time were within the corporate limits of said Heber City. The defendant Lavina Murdock appeared in the action and filed her answer to the complaint. In her answer, among other things, she admitted that she collected from the respondent and others who had for the purposes of the suit assigned their claims to him the sum of eight hundred and seventy-two dollars and forty-seven cents; that she collected the said sum as taxes which were levied by Heber City for municipal purposes for the year 1909 upon a certain number of sheep, stating the number; that said sum of money was paid by the parties paying the same under oral protest made at the time, and such protest she at such time entered upon the records of said county; that she received, and is now holding, all of said money so paid as aforesaid as treasurer of said county in trust, and is ready and willing to pay the same in court, or to make such disposition thereof as the court may direct. Heber City also appeared, and in its answer to the complaint admitted that the respondent and his assignors had paid the amount aforesaid to said Murdock as treasurer for taxes levied by said Heber City for municipal purposes for the year 1909, that said taxes were levied on certain sheep for said year, and that none of said sheep during said year were within the territorial limits of said Heber City. The allegation that the taxes were paid under protest was denied as hereafter stated. The answer of Heber City also contains some affirmative matter which under the view we entertain of the case it is unnecessary to notice, except to state that it was averred therein that the respondent and his assignors during all of the year 1909 were residents of Heber City, and as such owned the sheep on which said taxes were levied; that while said sheep at no time were kept or were within the corporate limits of said city they nevertheless were not permanently kept or located at any place, but "were driven from place to place and from one taxing district to another for grazing purposes." The court disregarded the affirmative matters referred to, and in effect entered judgment on the pleadings in favor of respondent and against both the treasurer and said Heber City for the amount admitted by them in their answers as aforesaid. Heber City alone appeals.

The principal question for determination is whether the taxes involved in this action were void for the reason that the sheep upon which the same were levied were at no time within the corporate limits of said city, although the parties who owned them were residents therein. The question with respect to what constitutes the situs of movable property for the purpose of local taxation is one that is usually, but not always, governed by some constitutional or statutory provision. When there is such a provision, the courts have no power save to construe and enforce the same. In section 10 of article 13 of the constitution of this state it is provided that "all corporations or persons in this state, or doing business therein, shall be subject to taxation for state, county, school, municipal or other purposes, on the real and personal property owned or used by them within the territorial limits of the authority levying the tax." Pursuant to this constitutional provision, the first legislature of the state of Utah after the adoption of the Constitution passed an act entitled "Revenue Act," of which section 13 is material here and which in part reads as follows: "All of the taxable property must be assessed in the county, city or district in which it is situated." (Laws Utah 1896, p. 428.) The foregoing provision, with the exception of the two words "of the" in the first line, was thereafter carried into the Revised Statutes of 1898 as section 2515, and now constitutes a portion of a section by the same number in the Compiled Laws of 1907. The provision has therefore been in force continuously since 1896, when it was first adopted. We thus have had in force a legitlative construction of the constitutional provision, which, so far as we are aware, had been acquiesced in for nearly fifteen years when this action was commenced. Notwithstanding this, however, appellant's counsel contend that the term "owned" as used in the Constitution means that property is owned where the owner thereof resides. As we have seen, the legislature has applied a different meaning to the term. While a legitlative construction may not be conclusive upon the courts, yet it always is entitled to respectful consideration, and may under certain circumstances be of great weight if not...