Ricketts v. Crewdson
| Decision Date | 07 June 1905 |
| Citation | 13 Wyo. 284,79 P. 1042 |
| Parties | RICKETTS v. CREWDSON, AS COUNTY TREASURER AND COLLECTOR OF TAXES |
| Court | Wyoming Supreme Court |
Original Opinion of March 20, 1905, Reported at: 13 Wyo. 284.
Rehearing denied.
M Nichols, for plaintiff in error. (On petition for rehearing.)
The Legislature never intended that the action of the Board of Equalization should be final. A judgment rendered or final order made by a justice of the peace, or any other tribunal board or officer exercising judicial functions, and inferior in jurisdiction to the District Court, may be reversed vacated or modified by that court. (R. S. 1899, Sec. 4248.) The acts of the board should not be held to be merely an overvaluation of property; it was an assessment of property not in existence. If it be true that it is necessary to allege and prove fraud on the part of the board to entitle a complainant to relief in equity from an erroneous tax, then the section of the statute authorizing injunction in case of illegal taxation is practically inoperative, for there perhaps never was and never will be a case where the complainant can show fraud on the part of the board. Our statute contemplates that the board in making additions to the assessment roll shall be governed by evidence. (R. S. 1899, Secs. 1784-1791.) The allegation that the board "unlawfully, illegally, erroneously, unjustly and arbitrarily, and without sufficient evidence," added to the assessment roll property valued at a designated amount, and levied taxes thereon, is a clear statement that the board added property not in existence, and that it acted arbitrarily, and it was not necessary to specifically aver that the board acted fraudulently. If it acted arbitrarily and without sufficient evidence, that would be sufficient to avoid the taxes. And where the illegality permeates the whole tax, so that separation cannot be made, the entire tax must fail. (27 Ency. of Law, 612-720.) It would be unconstitutional for the statute to provide that the action of the Board of Equalization should be final.
Milo Adams, for plaintiff in error. (On petition for rehearing.)
The allegations of the petition were admitted by the general demurrer, and the question, therefore, is whether they are sufficient under the statute to afford injunctive relief. The District Court is given jurisdiction to enjoin illegal levies of taxes and assessments. (R. S. 1899, Sec. 4172.) The petition alleges the taxes to be illegal, which allegation is admitted by the demurrer, and the petition further proceeds to show wherein the assessment was illegal. The plaintiff is not required to make out a case in each element which will be necessary to entitle him to equitable relief; it is sufficient if he shows that the taxes or assessments are illegal. (24 Ohio St. 253; 27 id., 536; 39 id., 301; Water Co. v. Asotin Co. (Wash.), 64 P. 544.) If the plaintiff returned for taxation (which he claimed he did) all his property, which fact is admitted by the demurrer, then any additions made thereto would admittedly consist of property not in existence, and, therefore, the assessment would be illegal and void to the extent of the addition. Clearly, an addition to the assessment roll of property not in existence would constitute an illegal assessment, though not necessarily a fraudulent one.
The word "arbitrarily" used in the petition is one from which an unlawful act may be inferred, and where the raise by the board is made arbitrarily and without any evidence, injunction is the proper remedy. (Tainter v. Lucas, 29 Wis. 375.) One can hardly doubt that an arbitrary decision would be unlawful and entitle the person aggrieved to some remedy. Equity follows the old maxim that there is no right without a remedy, and in this case plaintiff has been deprived of any right he might have had by appeal from the action of the board by the decision in the case of The Board v. Searight Cattle Co., 3 Wyo. 783, which has the force and effect of law until modified by the Supreme Court of this state. Even if Section 4248, Revised Statutes, authorized plaintiff to appeal from the action of the board, he has been deprived of that right since the case above cited denies it, and, therefore, plaintiff is entirely without remedy unless injunction lies. (Const. Wyo. Art. I, Sec. 8; R. S. 1899, Sec. 3443; State ex rel. v. Goff (Neb.), 31 N.W. 120.) It would be impossible to prove fraud on the part of the board, except on the grossest and most obvious and notorious acts of its members, which probably would be an impracticability in almost every case. If there is no way of redress from the unlawful acts, not necessarily fraudulent, of the Board of Equalization, then the taxpayer, and especially the owner of personal property and live stock, is at the mercy of the board. Under the constitution, no absolute arbitrary power over the lives, liberty or property of freemen exists. (Const., Art. I, Sec. 7.) It has been held in a number of cases that, where the Board of Equalization acted arbitrarily and without evidence, equity would interfere to prevent injustice. (State ex rel. v. Williams (Wis.), 100 N.W. 1048; State ex rel. v. Sackett, 94 N.W. 314; Johnson v. Hahn, 4 Neb., 139; Hush v. Trustees, 1 Vesey, 188; Culbertson v. Cincinnati, 16 O., 574; Jones v. Jones, 18 O., 323; Knowlton v. Supervisors, 9 Wis. 417; Kinyon v. Duchene, 21 Mich. 500; Williams v. Penny, 25 Iowa 438; City v. Patterson, 32 Ind. 140; Pixley v. Higgins, 15 Cal. 132.)
There could hardly be a question that if the real estate belonging to the plaintiff was sold for taxes when it was erroneously assessed in one school district, the sale would be set aside by a court of equity; and hence, by allowing an injunction in this case, a multiplicity of suits would be prevented. The allegation as to tender was sufficient; it can hardly be misunderstood when the amount is given, and it is alleged that it was all the tax due on the live stock and personal property for the year in question. The treasurer should have given a receipt for the taxes upon the real estate upon plaintiff's tender of the amount levied thereon. (Report of Att'y. Gen'l. Wyo. 1893-1894, 121, 122.) The assessment of the real estate en masse was erroneous, and it would probably not be contended that the sale of all of the land as one tract would be good. Such a sale would at least cast a cloud upon the title of plaintiff's land, and he would, therefore, be obliged, in case of a sale, to bring an action to set it aside, and thus there would be caused a multiplicity of suits.
The argument upon the demurrer made in this court is not the same as that presented to the court below. Upon the argument below the only proposition contended for on behalf of the demurrer was that plaintiff's complaint to the board had not been made in writing and under oath. Had the same objections now urged been presented upon the argument in the District Court, the defect in the petition might have been noticed in time for an amendment. While a general demurrer raises every point affecting the sufficiency of the petition, yet the point relied on by counsel presenting it should be first suggested to the trial court for determination and judgment, thus allowing the plaintiff an opportunity to amend in furtherance of justice. Thus a decision in this court has been based upon entirely new points not raised in the court below. It seems that the petition taken as a whole states a cause of action, and should be considered as sufficient on general demurrer. Clearly the plaintiff would have suffered great and irreparable injury in permitting his live stock and real estate to be sold for these illegal taxes. In granting a rehearing and remanding the cause, the merits of the controversy may be determined without prejudicing the rights of the defendant in any particular. The plaintiff has followed his legal remedy; having offered to pay all of the taxes justly due, and we believe he is entitled to the relief asked for by the petition.
ON PETITION FOR REHEARING.
This cause was before decided by this court, the opinion appearing in 79 P. 1042. A petition for rehearing was filed by counsel for plaintiff in error, within the time prescribed by the rules of this court, and briefs were filed in support of the petition. We have reviewed the case and arrived at the same conclusion as announced in the former opinion. It is alleged in the petition of plaintiff in error, upon which he asks an injunction to restrain the collection of the taxes in question, that the Board of Equalization "unlawfully illegally, erroneously, unjustly, arbitrarily and without sufficient evidence or cause added to the plaintiff's assessment three hundred head of cattle and levied the taxes thereon." It is urged by counsel for plaintiff in error that as these facts were admitted to be true by the general demurrer to the petition, the illegality of the tax is established. This claim is based upon the assumption that the mere statement in the petition that the property in question was illegally and arbitrarily added to the assessment roll and taxes levied thereon establishes these, under the demurrer, as...
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