Northern P. Ry. Co. v. Patterson
| Decision Date | 01 August 1890 |
| Citation | 24 P. 704,10 Mont. 90 |
| Parties | NORTHERN PAC. RY. CO. v. PATTERSON, County Treasurer. |
| Court | Montana Supreme Court |
Appeal from district court, Gallatin county; FRANK HENRY, Judge.
Cullen Sanders & Shelton, Armstrong & Hartman, and F. M. Dudley, for appellants.
H. J Haskell, Atty, Gen., and Vivion & Cockrill, for respondent.
This action was commenced by the appellant to obtain an injunction to restrain the county treasurer of the county of Gallatin in this state, from selling certain lands, blocks, and lots by reason of the taxes which had been levied thereon in the year 1889, or collecting the same, and also a decree that said taxes should be adjudged void. The complaint alleges that the plaintiff is a corporation under the act of congress entitled "An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound, on the Pacific coast, by the northern route," and approved July 2, 1864. The second and third sections of this act are set forth, and describe the public lands which are granted to the railroad by the United States. The particular acts of the plaintiff are then alleged, showing that all the conditions of the statute have been performed by the corporation. "The lands described in the schedule marked 'Schedule A' *** are situated on and within the distance of forty miles of the plaintiff's said line of railroad, as the same was so definitely fixed and described in the plat thereof, duly filed with the commissioner of the general land-office, as aforesaid, and that said lands are in the county of Gallatin, Montana." It is further alleged that "the lands so granted to said plaintiff, *** if any there are, in said county, have never been segregated from the public lands, have never been identified, and that the boundaries *** have never been ascertained or determined." It is also alleged that the officers of the United States have "failed and refused to certify said lands *** to the plaintiff, or to certify any lands in the county of Gallatin to said plaintiff, *** but have refused and failed to certify or patent said lands solely because said lands have not been identified as lands passing to said plaintiff under said grant, as hereinbefore alleged." It is further alleged: "In the year 1889, the officers of the said county of Gallatin authorized by the laws of the territory of Montana to assess property therein for the purposes of taxation and to levy taxes thereon pretended to assess all the said parcels of land described in the Schedule A *** to the said plaintiff for the purposes of taxation, and pretended to levy certain taxes thereon, to-wit, the territorial, county, town, and other taxes for that year; *** that all the said *** taxes were and are illegal and void for the reason that said lands so taxed were exempt from taxation and assessment by the territory of Montana." The second cause of action describes certain lots and blocks in the town of Moreland, county aforesaid, and contains the following allegations: "That prior to the first Monday in August, A. D. 1889, said plaintiff furnished a list of said lots under oath, as required by law, to the assessor of said Gallatin county; that said assessor did not assess said lots and blocks of land as required by law, and did not determine and fix the true value of such lots and blocks, and enter or cause to be entered the same opposite such lots and blocks, as required by law, but assessed and valued all of said lots and blocks together as one parcel of land; that said assessor did not assess said lands at the valuation returned by said plaintiff, but increased the same, and did not place upon said assessment roll the valuation of said lots and blocks as returned by said plaintiff; but said assessor did wrongfully and falsely take and subscribe an oath, and attach the same to the said assessment roll, wherein and whereby said assessor did swear that the value of said property was returned in said assessment roll as set forth in said statement made and returned to said assessor by said plaintiff." The third cause of action relates to certain lots and blocks of land in the town of Gallatin, county aforesaid, which are described in Schedule C. The other allegations are similar to those which have been recited respecting the second cause of action. It is also alleged that the county treasurer, the respondent, has advertised the foregoing lands, blocks, and lots for sale, through the failure of the appellant to pay said taxes. A demurrer to each cause of action was sustained by the court below, and judgment was afterwards entered against the plaintiff.
The statute which was in force when the assessments that are complained of were made provides as follows: St. 15th Ex. Sess. p. 92. It appears from the transcript that the plaintiff elected to stand upon its complaint, and declined to amend the same, when the demurrers were sustained. We must assume that every fact which is material to its demand for equitable relief has been pleaded. It is clearly shown that the appellant never applied to the board of equalization created by the statute for any redress, or sought any remedy, until this action was commenced, February 17, 1890. The brief of the appellant considers the propositions relating to the lots and blocks in the towns of Moreland and Gallatin, and says: "It is conceded by the company that these lands are not exempt from taxation, and the sole question arising with reference to each is whether the defects in the levy of the taxes are such as to render the taxes void, and entitle the plaintiff to the relief prayed for." The complaint does...
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