Noble v. Amoretti

• Citation: 11 Wyo. 230,71 P. 879
• Parties: NOBLE, ET AL., v. AMORETTI, COUNTY TREASURER, ETC
• Decision Date: 19 March 1903
• Court: United States State Supreme Court of Wyoming

71 P. 879

11 Wyo. 230

NOBLE, ET AL., v. AMORETTI, COUNTY TREASURER, ETC

Supreme Court of Wyoming

March 19, 1903

RESERVED questions from District Court, Fremont County, HON CHARLES W. BRAMEL, Judge.

Action by Worden P. Noble and Albert D. Lane, co-partners doing business under the firm name of Noble & Lane, to enjoin the County Treasurer from selling certain personal property which had been seized and advertised for sale by said treasurer as collector of taxes for alleged unpaid and delinquent taxes. The case was submitted upon an agreed statement of facts, and thereupon reserved to the Supreme Court for its decision upon certain important and difficult questions. The reserved questions and other material facts are stated in the opinion.

Clark &amp Breckons, for plaintiff.

It is a fundamental principle of the law of taxation that the means or agencies provided or selected by the Federal Government as necessary or convenient to the exercise of its functions cannot be subjected to the taxing power of the states, since if they could be, a state dissatisfied therewith, or disposed for any reason to cripple or hamper the operations of the Federal Government, might tax them to an extent that would impair their usefulness, or even put them out of existence. (Cooley on Taxation, p. 83.)

The plaintiffs trade with the Indians, by virtue of authority from the United States, and under the agreed statement of facts could not exercise their occupation by virtue of such authority without the use of the property taxed in this case. Give to the State the power to tax this property and the State might tax it in such a way as to prevent them from exercising their occupation.

Section 1782, Revised Statutes, refers to the original tax list, and provides what the certificate and warrant should contain. The warrant requires the collector to collect the taxes therein levied according to law, and this original tax list is constituted full and sufficient authority for the collector to collect all taxes therein contained.

Section 1783 requires the collector, on receipt of the tax list, to proceed immediately to collect taxes therein levied; and he is further authorized to require and collect all taxes remaining unpaid on the lists of former years.

In neither of the foregoing sections is the collector given any authority to collect the taxes by distress and sale of personal property.

Section 1853 provides for the distress and sale of personal property about to be removed out of the county; the original tax list being the authority for the seizure of such property.

Section 1871 provides that the County Collector of taxes shall immediately after the 31st day of December in each year, from the list in his hands, make out a complete list of all delinquent taxes for that and preceding years due from every person or persons, corporation or corporations, or association of persons taxable in his county, "and shall attach his certificate to said statement or list, showing that it is a true list of all delinquent taxes, and file the same in the office of the County Treasurer, and said list or statement shall be at all times a sufficient warrant and authority for the collector of taxes upon which to proceed and collect any and all delinquent taxes."

Section 1873 of the Revised Statutes provides that after the taxes become delinquent in any year, the collector of each county shall at once proceed to make demand for the taxes due, and in case of non-payment shall levy distress upon the real or personal estate of the delinquent as may be most convenient.

Section 1874 provides that in all cases where taxes due from any person or corporation may become delinquent, it shall be lawful, and it is made the duty of the officer whose duty it is to collect the delinquent taxes, to proceed and collect such delinquent taxes.

Section 1875 provides that in the collection of the delinquent taxes mentioned in Section 1874, "it shall be lawful for the officer whose duty it is or may be to collect the same, to make the same by distress and sale of the personal property of the party owing such tax, or liable for the same notwithstanding such party may have real estate in the county where such tax is due, and the delinquent tax list alone shall be a sufficient warrant for such distress."

An inspection of the agreed statement of facts in this case discloses that no such delinquent tax list as is provided for by the sections above referred to was made up in the County of Fremont each year. Taxes remaining unpaid were entered in a book, the entries in the one book covering several years. To none of these was there ever attached a certificate of the proper officer showing what the list was. Indeed the agreed statement of facts shows that no list such as is required by law was kept, the sample page from the book set forth in the agreed statement of facts proving very clearly that the provisions of the law were not carried out.

Under this condition of affairs had the County Treasurer of Fremont County the right or authority to seize the property of the defendant?

To authorize a collector to distrain goods and chattels for the satisfaction of a tax, the officer must have for the purpose such a warrant as is provided by law, and the law must give authority for the seizure. (Cooley on Taxation, p. 438.)

The warrant attached to the original tax list is the collector's authority for collecting the taxes, but does not give him any authority to seize the property.

Section 1853 makes this warrant attached to the original tax list sufficient authority for the seizure of certain kinds of property, that is, personal property about to be removed out of the county. This section does not, however, authorize the seizure of any other kind of property. Section 1873 authorizes distress and sale of property of the delinquent. Section 1875 authorizes the distress and sale of personal property, providing in terms that the delinquent tax list shall be the authority of the collector. It must, therefore, be clear that the authority for the seizure of personal property for the non-payment of taxes comes alone from the delinquent tax list, and not from the original tax list. Nowhere in our statutes can the right to seize property by virtue of anytihng but the delinquent tax list be found.

The question then naturally arises as to whether the book in the possession of the defendant in this case was such a delinquent tax list as required by law, and whether it constituted proper process for the seizure of the property in this case. In the first place it contains no certificate; it lacks authentication by the officer whose duty it is to certify to it. In the next place, there is no showing that it was ever filed in the proper office. In the third place, separate lists for each year were not kept, nor is there in the list any description of the property upon which the taxes have become delinquent. We believe that there can be but little doubt that this book did not constitute proper authority for the sale of the property of the defendants. It is a familiar rule that statutes giving the municipality the right to sell property for taxes without judicial process are strictly construed, and that all of the proceedings be in strict compliance with the law. (Cooley on Taxation, 442.)

A glance at the many authorities on some of the questions involved is instructive, and we will refer to a few of them which we think throw some light upon the question involved. (Port Huron v. Potts, 78 Mich. 437; Minor v. McLean, Fed. Case No. 9360; Stambaugh v. Carlin, 35 O. St., 209; Thompson v. Burhans, 61 N.Y. 63; Hill v. Mason, 38 Me., ___; Skinner v. Brown, 17 O. St., 33; Harmon v. Stockwell, 9 O., 94; Kelley v. Craig, 5 Ired., 129; Thatcher v. Howell, 6 Wheat., 118; Miller v. Otis, 74 Ill. 390; Martin v. Barbour, 34 F. 701; Huntington v. Brantley, 33 Miss. 451; Wartensleben v. Haithcock, 80 Ala. 565; Tallman v. White, 2 N. Y., 70; Striker v. Kelley, 2 Den., 323; Belden v. State, 46 Tex. 103; Fox. v. Turtle, 55 Ill. 377; Pickett v. Hartsock, 13 Ill. 279; Morgan v. Camp, 16 Ill. 176; Morrill v. Swartz, 39 Ill. 109; Company v. Greely, 11 Minn. 322; Hough v. Hastings, 18 Ill. 312; Cotzhausen v. Kaehler, 42 Wis. 333; Simpson v. Edmiston, 23 W.Va. 675; Bank v. Hooper, 77 Ia. 435; 25 Ency. L., 334.)

Independent of any authorities, however, can it be doubted for a moment that the seizure of the property of the plaintiff in this case, under the circumstances set forth in the agreed statement of facts, was illegal and unauthorized.

Under the agreed statement of facts, it appears that the property was seized by the County Treasurer of Fremont County for delinquent taxes for the years 1894 to 1899, inclusive. As we have seen, under the law it is well settled that to authorize such a seizure there must be statutory authority for it, and the warrant authorizing it must be in the form prescribed by law. The original tax lists were undoubtedly in the hands of the officer who made the seizure, but the only authority given to such officer by virtue of these original tax lists was the authority to receive and collect the taxes, and no express authority is given him to seize property by virtue thereof. He therefore could not have had autohrity by virtue of such original tax lists, and his only authority would be by virtue of a delinquent tax list.

As we have already endeavored to show, this delinquent tax list was defective in several particulars, and certainly could not be made the basis for the seizure of personal property. How did the Treasurer of Fremont County for the year 1900 know that the taxes for the years preceding were deliqnuent? He could only tell by virtue of the delinquent tax list certified by the officer who made...