Mutual Life Ins. Co. of New York v. Martien

• Citation: 71 P. 470,27 Mont. 437
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. MARTIEN, Assessor.
• Decision Date: 13 February 1903
• Court: United States State Supreme Court of Montana

71 P. 470

27 Mont. 437

MUTUAL LIFE INS. CO. OF NEW YORK v. MARTIEN, Assessor.

Supreme Court of Montana

February 13, 1903

Appeal from district court, Lewis and Clarke county; Henry C. Smith Judge.

Application by the Mutual Life Insurance Company of New York for injunction against Charles H. Martien, as assessor of taxes to restrain defendant from collecting taxes from plaintiff. From an order granting the injunction, defendant appeals. Affirmed.

Jas Donovan, Atty. Gen., for appellant.

Toole & Bach, for respondent.

MILBURN J.

The appellant assessor, being about to seize and sell the furniture and certain other personal property in the office of the respondent in order to enforce the payment of taxes for the year 1902,--there not being a lien on sufficient, or any real estate to secure such payment,--the district court granted an injunction pendente lite. The assessor appeals from the order granting the injunction. The attorney general relies upon chapter 9, pt. 3, tit. 10, being sections 3940-3948 of the Political Code. The only one of the sections comprising the chapter 9 necessary for us to consider is section 3940, which is as follows: "The assessor must collect the taxes on all personal property when, in his opinion, said taxes are not a lien upon real property sufficient to secure the payment of taxes." The legislature in the said chapter provides that the collection by the assessor may be made by seizure and sale of any personal property of the assessed person at the time of the assessment, or at any time before the second Monday in July.

The respondent maintained, and the court held, that the act of the legislature, so far as it attempts to confer power upon the assessor to collect taxes, was unconstitutional, and therefore void, as being in contravention of section 5, art. 16, of the constitution of this state, the pertinent part of which is as follows: "Sec. 5. There shall be elected in each county the following officers: One county clerk, who shall be clerk of the board of the county commissioners and ex-officio recorder; one sheriff; one treasurer, who shall be collector of taxes: provided, that no person shall hold the office of county treasurer for more than two consecutive terms; one county superintendent of schools; one county surveyor; one assessor; one coroner; one public administrator. ***" The instrument declares that the provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise. Section 29, art. 3, Const.

We see that the people declared in their constitution that they proposed to elect (that is, choose) the man who should collect and keep the money due for taxes. The members of the constitutional convention understood the meaning of the words "treasurer," "collector," and "assessor," and they used the words aptly. A public treasurer is one who receives public moneys, keeps them in his charge, and disburses...