Powder River Cattle Co. v. Board of Com'rs of Custer County

• Decision Date: 15 January 1891
• Citation: 45 F. 323
• Parties: POWDER RIVER CATTLE CO. v. BOARD OF COMMISSIONERS OF CUSTER COUNTY
• Court: U.S. District Court — District of Montana

45 F. 323

POWDER RIVER CATTLE CO. v. BOARD OF COMMISSIONERS OF CUSTER COUNTY

United States Circuit Court, D. Montana.

January 15, 1891

M. J Liddell, for plaintiff.

W. H Ross and Strevell & Porter, for defendant.

KNOWLES J.

This is an action brought to recover from Custer county a tax claimed to have been illegally collected from plaintiff, amounting to the sum of $3,485.40, with legal interest thereon from the 14th day of June, 1886, the date said collection was made. Plaintiff sets forth in its complaint that it is a corporation organized under the laws of the kingdom of Great Britain and Ireland, and doing business in the states of Wisconsin and Wyoming, in raising, breeding, buying, and selling cattle and horses. That defendant is a public corporation, existing by virtue of the laws of formerly the territory, now the state, of Montana. That among the possessions of plaintiff in 1885 were some 4,000 head of cattle, ranging at a place called 'Hanging Woman's Creek,' in said Custer county. That said place was in said Custer county was a fact of which plaintiff was ignorant. That the assessor of said Custer county well knew the residence of the officers of plaintiff, and where those who had a right to list its said property lived. That its principal place of business was at Cheyenne, in the now state of Wyoming, and at its ranch on said Hanging Woman's creek, in the now state of Montana. That the said assessor of said Custer county made no demand on plaintiff or any of its agents, servants, or employes to list said cattle. That the said assessor well knew the post-office address of said agents, servants, and employes of plaintiff. That the said assessor, without making said demand on plaintiff, or any of its agents, servants, or employes to list said property listed himself the same upon information and belief, and in such listing increased the amount from 4,000 cattle to 10,000, an excess of 6,000 over the amount plaintiff had in said Custer county. That in said list were included calves under one year old, and bulls, not taxed. That subsequently the county commissioners added to said list of property of plaintiff a certain number of horses, which it valued at $2,000, and that they did this without any notice to plaintiff. That the said tax so levied upon the property so listed was turned over to the treasurer of said Custer county, with a warrant for its collection. That the said treasurer, acting as collector of taxes, threatened to, and did attempt, during the month of May, 1866, to seize the property of plaintiff, namely, its cattle, for the purpose of selling the same to pay said taxes, and that the said treasurer was only prevented from so doing by plaintiff paying to said treasurer the amount of $4,954, claimed as taxes, and $495.40 as a penalty added thereto for not paying said taxes within the time provided by law. That the said sums were so paid by plaintiff under duress of its property and to save the same from seizure and sacrifice, and under protest, alleging that said tax was void; that the assessor had no jurisdiction to list said property, by reason of the fact that he had made no demand upon the company or its officers or agents for a list of its property; and for the reason that said assessment list and roll contained no description of plaintiff's property subject to taxation in said Custer county, and no valuation of the same, as required by law, and that the action of the board of county commissioners in listing and valuing plaintiff's horses for taxation was without authority of laws, and notifying defendant that plaintiff would resort to appropriate remedies at law to recover the money so paid back. The defendant filed its demurrer to this complaint, and the questions presented for consideration arise in considering the same. The facts stated in the complaint must be considered as true.

The first point that arises is, was the tax illegally assessed? The statute requires that every assessor shall demand of each tax-payer in his district a list of his property. At the date of the assessment in this case the district of the assessor of Custer county embraced the whole of that county. It is a general rule of the United States courts that they will follow that construction of a state statute which it has received by the highest court of that state. Moores v. Bank, 104 U.S. 625; Fairfield v. Gallatin Co., 100 U.S. 47; Tioga R. Co. v. Blossburg & C.R. Co., 20 Wall. 137; King v. Wilson, 1 Dill. 556. The supreme court of Montana Territory in the case of Railroad Co. v. Carland, 5 Mont. 146, 3 P. 134, interposed the statute under consideration requiring a demand to be made by the assessor upon the tax-payer to list his property subject to taxation. In speaking of that statute, it says, by Chief Justice WADE:

'Under the provisions of our statute it is the first duty of the assessor to demand a list of the property from the tax-payer or the person whose property is to be assessed. This is the first and important step towards assessing his property for taxation. If the list is not furnished on such demand, then, and not until then, has the assessor the right himself to make a list and value the property. The demand is a condition precedent to the right of the assessor to act in the premises. That, and the neglect or refusal of the persons having taxable property, alone gives to the assessor the right to make the list himself. If this were not so, the sovereign power of taxation becomes an arbitrary exaction, subject to the caprices of a single individual, without the knowledge and behind the back of the person most interested, and whose property is to be taken for the public use. Therefore it is that our statute has wisely provided that the person having taxable property shall have the right to list the same for taxation. The assessor has no right or jurisdiction to make the list until the tax-payer or person having the property subject to taxation has neglected or refused to make it.'

This decision very fully and decisively determined the question that there must be a demand on the tax-payer or person in charge of taxable property for a list of the property possessed by him and a refusal to list the same, before the assessor has any jurisdiction to list such property himself. It is true this was a decision of a territorial court. But the same reason for the rule in relation to the decisions of state courts should prevail. It was a territorial court interpreting a statute of its territory, which became a rule for the conduct of revenue officers of the territory in prosecuting their official duties. If it is not of controlling authority the rule expressed in that decision should, I am of the opinion, commend itself to the judicial mind. As to statutes providing for taxing property, it may be said as a general rule: 'When the regulations prescribed are intended for the protection of the citizen and to prevent a sacrifice of his property, and by a disregard of which his rights might be, and generally would be, injuriously affected, they are directory, but mandatory. ' French v. Edwards, 13 Wall. 506. The failure to make a demand of a tax-payer for his list of property might, and generally would, injuriously affect his rights; for, if the tax-payer must list his property, whether any demand for the same is made upon him or not, then the assessor may, on mere information and belief, list his property, and add 20 per cent. to the value thereof. Information and belief is a Again, 'all personal property shall be listed, assessed, and taxed in requires a demand to be made of the tax-payer for his list of property is intended for his protection. It is therefore a mandatory statute. It is urged, however, that this demand should be made only of tax-payers who reside in the district of the assessor. The statute does not say so. The language of the statute is: 'Between the first day of February and the tenth day of September in each year (referring to the assessor) he shall demand of each tax-payer in his district a list, as hereinafter provided, of his, her, or their property. ' Section 1011, div. 5, Rev. St. Mont. 1879. In interpreting a statute the whole statute should be construed together. End. Interp. St. Sec. 35. In section 1004, div. 5, of said Revised Statutes it provides 'that every inhabitant of the territory of full age and sound mind shall list all property subject to taxation in this territory of which he is the owner or has the control or management. ' Again, 'all personal property shall be listed, assessed, and taxed in the county where the same may be found. ' Section 1005, Id. Again, 'all persons required to list property in behalf of another, shall list in the same county in which he would be required if it were his own. ' Section 1006, Id. As every one is required to list the property he owns or has control or management of in the county where the same may be found, it cannot reasonably be contended that only the tax-payers who reside in the district of the assessor should receive a demand to list their property. Statutes should, if possible, be so interpreted as to make the intent of the legislative power reasonable. End. Interp. St. Sec. 245. If it is only those who live in the same district as the assessor that are entitled to receive a demand for a list of taxable property, then it is only the property of those who live in the district of the assessor who are liable to have their property listed by the assessor upon a refusal or neglect to list after a demand and 20 per cent. penalty added to the value thereof. For we have seen that it is after a demand that the assessor has the jurisdiction to list taxable property. If it is only of those who live in the district of the assessor who are to receive...