Neilson v. San Pete County

• Decision Date: 11 April 1912
• Docket Number: 2320
• Court: Utah Supreme Court
• Parties: NEILSON et al. v. SAN PETE COUNTY

123 P. 334

40 Utah 560

NEILSON et al. v. SAN PETE COUNTY

No. 2320

Supreme Court of Utah

April 11, 1912

APPEALS from District Court, Seventh District, Hon A. H Christensen, Judge.

Action by Clarence J. Neilson and another, against San. Pete County.

Judgment of dismissal entered on sustaining a demurrer to the complaint. Plaintiffs appeal.

REVERSED AND REMANDED.

Goodwin & Van Pelt for appellant.

Geo Christensen and Ferdinand Ericksen for respondent.

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

OPINION

FRICK, C. J.

On the 12th day of May, 1911, appellants commenced this action in the district court of San Pete County, Utah, to recover certain taxes which it is alleged were illegal and void, and which were illegally collected by said county.

The material allegations contained in the complaint are substantially as follows:

That in the year 1907 the respondent county, without authority of law, made a pretended assessment and levy of taxes for state, county, and other purposes to the amount of $ 271.68 upon certain personal property owned by the appellants. That on the 3d day of September, 1907, respondent duly notified appellants that said taxes would become delinquent on November 15th following, and that, unless paid, certain costs and expenses would be added thereto for advertising and selling appellants' property to pay the same. That because of the notice aforesaid, and to prevent the sale of their property for the purpose stated, appellants, on the 22d day of October, 1907, paid said taxes to respondent, "but that said payment was not voluntarily made." That the assessment and levy aforesaid were made upon mortgages which were liens upon real property, and which mortgages were executed and delivered by various persons to appellants, and were their property. That said assessment and levy were illegal and void. That "on or about the 27th day of February, 1911, and at various times theretofore plaintiffs notified in writing the board of county commissioners of defendant San Pete County that they had paid said sum for the taxes aforesaid. That said taxes were on mortgages on real property and were illegal and void, and demanded that the said sum so paid by plaintiffs be refunded to plaintiffs, but that the same has not been refunded and said board of county commissioners has notified plaintiffs that they refuse to pay or refund the same."

There are two additional causes of action set forth in the complaint the allegations of which are the same as those we have just given, except that the taxes sought to be recovered in the other two causes were assessed, levied, and paid for the years 1908 and 1909 respectively. The amount paid for the year 1908 is stated to be $ 179.05 paid on the 12th day of November of that year, and for the following year the amount is stated to be $ 129.14 paid on the 17th day of November, 1909. Upon substantially the foregoing allegations appellants prayed judgment against respondent for the amounts paid for taxes and for legal interest and costs. Respondent interposed the following demurrer:

"(1) That neither the first, second, nor third causes of action state facts sufficient to constitute a cause of action; (2) that each of the three alleged causes of action ... is barred by the provisions of sections 531 and 533 of the Compiled Laws of Utah of 1907."

The court sustained the demurrer, and, appellants having elected to stand on their complaint, the court rendered judgment dismissing the action, to reverse which this appeal is prosecuted.

The only errors assigned are that the court erred in sustaining the demurrer and in entering judgment dismissing the action. The questions presented for determination by this record, in view of our statutes and the somewhat conflicting decisions of the courts, are not free from difficulty nor from doubt. We shall first proceed to examine the reasons for which the court sustained the demurrer, and which counsel for respondent contend justify such a ruling.

It is contended that the complaint is insufficient because it is not alleged therein that a claim for the refund of the taxes was presented to and disallowed by the board of commissioners of the respondent county, and, further, because it is not alleged that the taxes in question were paid under legal compulsion, duress, or protest; and that it affirmatively appears from an inspection of the complaint that the claim was not presented in the manner nor within the time required by Comp. Laws 1907, sections 531, 533, and therefore, for that reason, no recovery can be had in this action. Section 531, in substance, provides that the board of county commissioners shall neither hear nor consider, nor shall it credit or allow, any claim or bill against the county, unless the same be itemized "giving the names, dates and particular service rendered, nor until it has been passed upon by the county auditor. Every claim against the county must be presented to the auditor within a year after the last item of the account or claim accrued," and must be verified. Section 533 is to the effect that, if the claimant is dissatisfied with the action of the board in case his claim is disallowed in part or in whole, he "may sue the county therefor at any time within one year after the first rejection thereof by the board but not afterward." Subdivision 7 of section 511, in which the powers of the board of county commissioners with respect to the allowance of claims filed against the county are stated, provides that the board has power "to settle and allow all accounts legally chargeable against the county after the examination of the same by the auditor, and order warrants to be drawn on the county treasurer therefor." There are some other constitutional and statutory provisions which must be considered in connection with the foregoing, and which, in our judgment, are decisive of the questions raised by the demurrer. Prior to the year 1906 the legislature was, by our Constitution, authorized to provide for the taxation of mortgages. In that year the Constitution was amended so as to eliminate mortgages, and since then mortgages have been exempt from and have not been assessed for taxation. Appellants assert that by reason of the foregoing amendment of the Constitution the mortgages referred to in the complaint were exempt from taxation, and that the tax in question here therefore is illegal and void. They also contend that the right to sustain this action is given by Comp. Laws 1907, section 2642, which reads as follows:

"Any taxes, interest, and costs paid more than once, or erroneously or illegally collected may by order of the board of county commissioners be refunded by the county treasurer, and the portion of such taxes, interest, and costs, of the state, cities, and school districts, must be refunded to the county, and the proper officer must draw his warrant therefor in favor of the county."

Section 2684, which has some bearing upon the force and effect that should be given to section 2642, supra, and the other statutory provisions to which reference has been made, reads as follows:

"In all cases of levy of taxes, licenses, or other demands for public revenue which is deemed unlawful by the party whose property is thus taxed, or from whom such tax or license is demanded or enforced, such party may pay under protest such tax or license, or any part thereof deemed unlawful, to the officers designated and authorized by law to collect the same; and thereupon the party so paying or his legal representatives may bring an action in any court of competent jurisdiction against the officer to whom said tax or license was paid, or against the county or municipality on whose behalf the same was collected, to recover said tax or license or any part thereof paid under protest."

Referring again to the provisions contained in sections 531 and 533 to which we have already referred, we are of the opinion that a claim for a refund of taxes like the one in question here was not intended to be and is not governed by the provisions of either of those sections. Neither is the claim for such refund an account which the board of county commissioners is authorized to settle and allow under the purview of subdivision 7 of section 511, to which we have also made reference. Furthermore, we think that this court is already committed to such a doctrine. In the case of Mining Co. v. Juab County, 22 Utah 395, 62 P. 1024, in passing upon the question of whether a claim for the refund of taxes had to be presented to the board of county commissioners as a condition precedent to the right of bringing an action against the county where the taxes were paid under protest as provided in section 2684, supra, Mr. Justice Baskin said:

"Under the provisions of said section at the moment the plaintiff paid the unlawful tax, under protest, he thereupon acquired a right to institute suit against the defendant and was not required, as claimed by defendant's counsel, to first present a claim to the county court (board), or take any other steps as a condition precedent to bringing his action."

With regard to whether the action was barred because not commenced within the time specified in section 533, supra, it is also held in that case that the action was not barred by that section. In that regard it is held that the general four years' statute of limitations applies to such a claim and that a claimant may bring an action at any time within four years after the date of payment of the taxes which he seeks to have refunded. In the cases cited below statutes similar to sections 531 and 533 were under consideration, and it is there held that a claim for the refund of an illegal tax is not an account or bill against a county which comes within...