Riverton Valley Drainage Dist. v. Board of County Com'rs. of Fremont County

• Decision Date: 23 December 1937
• Docket Number: 2060
• Parties: RIVERTON VALLEY DRAINAGE DIST. v. BOARD OF COUNTY COM'RS. OF FREMONT COUNTY, ET AL
• Court: Wyoming Supreme Court

74 P.2d 871

52 Wyo. 336

RIVERTON VALLEY DRAINAGE DIST. v. BOARD OF COUNTY COM'RS. OF FREMONT COUNTY, ET AL

No. 2060

Supreme Court of Wyoming

December 23, 1937

APPEAL from the District Court, Fremont County; C. D. MURANE, Judge.

Action by the Riverton Valley Drainage District against the Board of County Commissioners of Fremont County and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

For the appellants, there was a brief and an oral argument by H. S Harnsberger of Lander.

The question involved here is whether delinquent assessments levied upon behalf of irrigation and drainage districts including penalties and interest thereon go to the district or to the county. It seems reasonable that the cost and expense incurred by the county should be paid to the county. The question invokes an interpretation of Section 122-866, R S. 1931. The wording of the statute seems plain enough, but the question arises whether the legislature had the right to give to the district, moneys which represented no part of the drainage district assessment, as levied, but were merely penalties added, interest accrued and costs incurred because of the non-payment within the time limited by law. In the absence of constitutional authority authorizing the legislature to turn over revenues in the hands of the county treasurer to a drainage district, it would seem to warrant the conclusion that such an attempt is in excess of its right. In any event, even when we concede that there is no express statutory authority to charge against these penalties and interest collected by the county, the actual cost of collection, it should not be argued that the legislature intended that the county should make a present not only of the service of its employees, but should in addition draw upon and pay out its own funds, which belong to the taxpayers generally over the county, for the purpose of paying the bills of drainage district delinquency collections. The legislature has recognized the justice of paying the county for similar services under similar circumstances, in providing for the collection of delinquent city and town taxes. Section 115-1005, R. S. 1931. We believe that it was the intention of the legislature, in placing the burden of delinquent assessments upon the counties, to give them the right to deduct the costs incurred in performing that service. It is submitted that the judgment of the lower court should be reversed, with instructions to enter a judgment for appellants.

For the respondent, there was a brief and an oral argument by F. B. Sheldon, Jr. of Riverton.

The Riverton Valley Drainage District is a corporation organized and existing under the laws of the state. Commissioners of the district levied annual assessments for the year 1922 to and including the year 1932, upon lands in the district, to meet operating expenses and interest on its bonded debt. Some of these assessments were delinquent and the county treasurer in collecting them also collected penalty and interest, but made a practice of retaining the penalty and interest as county property and covered the same over into the general fund of the county. The district made a claim therefor, which was rejected by the county commissioners. The trial court found in favor of the district. The judgment is supported by Section 122-866, R. S. 1931. It is a general rule that penalties and interest follow the tax. 61 C. J. 1528; 67 C. J. 1358. The only question remaining for this court to determine is whether the county is entitled to be compensated for its services in connection with the collection of assessments for the district. It was argued that the legislature has provided for compensating counties for the collection of delinquent city and town taxes. No such provision is to be found in the drainage district law, and counties are required to perform such service without compensation from the district. It is not within the province of any court to supply the lack of such legislation as in the case at bar. A comparison of the wording of Section 115-1005, R. S. 1931, with Section 122-866, R. S. 1931, clearly indicates what was intended by the legislature with respect to the expense of collecting delinquent assessments. This question is governed by statute. 61 C. J. 1527; Washington County v. Clapp, 86 N.W. 775. There must be some specific statutory authority for the allowance of a commission or fee to tax collectors. 56 C. J. 716; County School v. Gantt, 37 Md. 521. In this connection, it should be borne in mind that a large part of the penalty and interest sought to be recovered herein properly belongs to the bondholders of the district and should be applied by the county treasurer for the retirement of those bonds, and the appellant under no circumstances would have a right to set up any kind of a claim regardless of how reasonable or just against that portion of the penalties and interest which accrued on assessments for the payment of bonded indebtedness.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

This action was brought by the Riverton Valley Drainage District, plaintiff, against the Board of County Commissioners of Fremont County and its Treasurer, to recover the sum of $ 2199.16 on account of penalty and interest collected on drainage taxes of the plaintiff district. It is agreed that that sum was in fact collected and was paid into the general fund of the county. The court found for plaintiff, entering a general judgment in its favor for $ 858.90, and directed that the sum of $ 1340.26 be paid into its bond and interest fund. From that judgment the defendants have appealed. Section 122-866, R. S. 1931, in so far as relevant in this case, reads as follows:

"The revenue laws of this state for the collecting of taxes on real estate for county purposes, except as herein modified, shall be applicable for the purposes of this article, including the payment of interest and enforcement of penalties and forfeitures for delinquent taxes. All penalties and interest on assessments of a drainage district collected by the county treasurer shall be the property of such district, and all interest and penalties collected on assessments of such district levied for purposes other than bonded indebtedness shall be paid to the treasurer of the district levying such assessment, such payments to be made on or before the fifth day of the month following the date of such collection."

Section 122-887 provides as follows:

"All drainage assessments shall be collected by the same officer and in the same manner and at the same time as state and county taxes are collected and when collected shall be paid to the treasurer of the district, except such assessments, together with interest, penalty and costs thereon, as are collected upon assessments levied for the payment of principal and interest of bonded indebtedness of said district, which funds shall be retained by the county treasurer of the county in which such district is organized, and the principal and interest of all bonded indebtedness of such district shall be paid by such county treasurer from such fund, at the place of payment designated in said bonds and interest coupons; provided, that when all bonded indebtedness of any drainage district is fully paid and retired, such funds remaining in the hands of the county treasurer shall be paid to the treasurer of such district, for the use of the district. The commissioners of any drainage district may elect the treasurer of the county having jurisdiction of such district, treasurer of such district."

1. Counsel for the appellants contends that all penalty and interest collected belong to the county, and not to the drainage district. He argues that the money collected thereon is not needed by the drainage district; that the principal of the assessments takes care of its bonded indebtedness as well as its general expenses; that the legislature has no right or power to permit the levy of an assessment over and above the needs of the district. Even if it is true, however, that the money mentioned is not needed by the district, it does not follow that it belongs to the county. The statute provides otherwise. It gives the money to the district. The statute governs, unless it is in contravention of the constitution. And even if it is, appellants are in no position to raise the point. That has been expressly decided by the Supreme Court of Montana, in a case involving the question of money directed by law to be paid over by a county treasurer to a city. It said, in the case of State v. McFarlan, 78 Mont. 156, 252 P. 805, 808, as follows:

"The defendant is not in a position to assert that the foregoing statutes are, or that any one of them is, unconstitutional. Admittedly, he collected the taxes and, having done so, it was his duty to pay them to the city treasurer. Town of White Sulphur Springs v. Pierce, 21 Mont. 130, 53 P. 103. The taxpayer who paid the taxes, voluntarily it must be assumed, is not complaining. The taxes were paid for the benefit of the city, not for the county or the defendant treasurer. So upon this attempted defense the treasurer will not be heard. Board of Commissioners of Meagher County v. Gardner, 18 Mont. 110, 44 P. 407; Adams v. Saunders, 89 Miss. 784, 42 So. 602, 119 Am. St. Rep. 720, 11 Ann. Cas. 327, and exhaustive note. Moreover, one who is neither injured nor jeopardized by the operation of a statute cannot challenge its constitutionality. State v. Vettere, 77 Mont. 66, 249 P. 666."

It is further contended that even if the interest and penalty belong to the district, the county of Fremont was compelled to hire extra help in collecting the drainage taxes, penalty and interest, at an outlay of $ 1081.34, as...