Shoshone County v. Thompson

• Decision Date: 06 June 1905
• Citation: 11 Idaho 130,81 P. 73
• Parties: SHOSHONE COUNTY v. THOMPSON
• Court: Idaho Supreme Court

81 P. 73

11 Idaho 130

SHOSHONE COUNTY v. THOMPSON

Supreme Court of Idaho

June 6, 1905

ORIGINAL proceedings in this court for a writ of mandate to compel the defendant to make the certificate required by the provisions of an act of the legislature approved March 8 1903. Writ granted.

Writ of mandate issued.

James E. Gyde, for Plaintiff.

Plaintiff contends that it is the duty of the accountants to certify what they find. (Idaho Laws 1903, p. 204, secs. 4, 5.) If they cannot agree upon all matters, each should certify to what he finds. If the accountants should be compelled to agree upon all points before making certificates, an obstinate accountant could postpone the settlement between the counties indefinitely. The accountants act clerically and not judicially. (Blaine Co. v. Smith, 5 Idaho 255 48 P. 286; Blaine Co. v. Lincoln Co., 6 Idaho 57, 52 P. 165; Custer Co. v. Yellowstone Co., 6 Mont. 39, 9 P. 586, at bottom of page 591.) It is the contention of plaintiff that it is the duty of the accountants to certify to the boards of commissioners of the two counties the amount of indebtedness and moneys in the treasury of Shoshone county on the day the act dividing said county took effect, the taxable property of Shoshone county for the year 1903, the ratable portion of such indebtedness which should be borne by each county, as shown by the official records of Shoshone county, and that it is not within their province or power to go outside of those records in ascertaining what was and what was not taxable property in the year 1903, in Shoshone county, or in determining any other question. The records of Shoshone county are conclusive as to all matters and things found therein, and the accountants cannot go outside of such records to determine any question, evidence of which is found in such records. (Idaho Laws 1903, p. 204, secs. 4, 5; In re Fremont Co., 8 Wyo. 1, 54 P. 1073, at p. 1081.) Mandamus will lie to compel them to act. (Idaho Rev. Stats sec. 4977; Blaine Co. v. Smith, supra; Elmore Co. v. Alturas Co., 4 Idaho 145, 95 Am. St. Rep. 53, 37 P. 349.) And the mandate will not be that he certify to a particular state of facts whether he so finds them or not; it will be that he act, but not act in a particular way. (Pyke v. Steunenberg, 5 Idaho 614, 51 P. 614; Kroutenger v. Board of Examiners, 8 Idaho 463, 69 P. 279; Riverside Co. v. San Bernardino Co., 134 Cal. 517, 66 P. 788; Merrill on Mandamus, sec. 32; Ex parte Brown, 116 U.S. 401, 6 S.Ct. 387, 29 L.Ed. 676; Ex parte Morgan, 114 U.S. 174, 5 S.Ct. 825, 29 L.Ed. 135; Ex parte Flippin, 94 U.S. 348, 24 L.Ed. 194; Ex parte Railway Co., 101 U.S. 711, 25 L.Ed. 872.) The legislature, subject to constitutional limitations only, has the right, upon the division of a county, either by creating a new county or annexing a part of the old to another county, to apportion the property and indebtedness of the old county as it may choose, and the courts will not question its validity, however great the injustice may be. The sole relief is in the legislature and not in the courts. (Cooley on Taxation, 3d ed., 413-415, and cases cited; In re Fremont Co., 8 Wyo. 1, 54 P. 1073; 7 Am. & Eng. Ency. of Law, 2d ed., 914, and cases cited; City Council v. Board of Commissioners, 33 Colo. 1, 77 P. 858; Lowe v. Hardy, 7 Utah 368, 26 P. 982; Board of Commissioners v. Commissioners, 7 Colo. 41, 28 P. 476; People v. Alameda Co., 26 Cal. 642; Board of Education v. State, 64 Kan. 6, 67 P. 559; Dillon on Municipal Corporations, 4th ed., secs. 185-187.) If a county is divided or a part thereof annexed to another county, unless otherwise provided by the legislature or the constitution, the old county retains all property and is liable for all debts. (Dillon on Municipal Corporations, 4th ed., secs. 188, 189.) Lands entered with military bounty land warrants are subject to taxation as soon as entered. (Goddard v. Storch, 57 Kan. 714, 48 P. 15.) Should the accountants take May 8, 1903, or November 19, 1904, as the date for computing the indebtedness, etc., of Shoshone county? The answer to this question is found in the correct definition of the phrase "at the date this act takes effect." The plaintiff will gladly concede the point to defendant that the act took effect May 8, 1903, instead of November 19, 1904. Plaintiff cites the court to the following to assist it in arriving at a correct meaning of this phrase: Sec. 4 of act in question; Idaho Const., art. 3, sec. 22; Los Angeles Co. v. Orange Co., 97 Cal. 329, 32 P. 316. Should the accountants deduct from the indebtedness of Shoshone county the value of the tax sale certificates, tax deeds and delinquent taxes belonging to Shoshone county, before apportioning the indebtedness between the two counties? Plaintiff insists that inasmuch as the act has not provided for the deduction of the value of the tax sale certificates, tax deeds and delinquent taxes due Shoshone county, no deductions shall be made. (County Commissioners of Cheyenne Co. v. County Com. Bent Co. (and two other cases consolidated with it), 15 Colo. 320, 25 P. 508; Wash. Co. v. Weld Co., 12 Colo. 152, 20 P. 273; 7 Am. & Eng. Ency. of Law, 916, and cases cited; Cooley on Taxation, 3d ed., pp. 413-415, and cases cited.) Do the tax sale certificates, tax deeds and delinquent taxes affecting property in the annexed district belong to Shoshone or Nez Perce county, and who should collect such delinquent taxes? Shoshone county and the officers thereof should collect all delinquent taxes. (In re Fremont Co., 8 Wyo. 1, 54 P. 973, at p. 1085 et seq.; 7 Am. & Eng. Ency. of Law, 913, and cases cited; Cooley on Taxation, 3d ed., 414, 415, and cases cited; Commrs. of Laramie Co. v. Commrs. of Albany Co., 92 U.S. 307, 23 L.Ed. 552; Dillon on Municipal Corporations, 4th ed., sec. 188; Mount Pleasant v. Beckwith, 100 U.S. 514, 25 L.Ed. 699.) Do the moneys collected for county and state purposes from taxpayers in the annexed district since November 19, 1904, belong to Shoshone county or Nez Perce county? They belong to Shoshone, since the act providing for the division of the county is silent upon the question. (Colusa Co. v. Glenn Co., 117 Cal. 434, 49 P. 457.) The lien of the taxes for 1904 had already attached on November 19th of that year. (Idaho Laws 1901, p. 290, sec. 181; Kings Co. v. Johnson, 104 Cal. 201, 37 P. 870.) Do the school moneys not distributed prior to the taking effect of said act, and which would have belonged to school districts in the territory annexed had there been no annexation, belong to Shoshone county or Nez Perce county? (Cooke v. School Dist., 12 Colo. 453, 21 P. 496, 719.) As to the power of the legislature to provide for the annexation of a portion of one county to another and imposing a burden of debt carried by the annexed portion upon the county to which it is annexed, see Lowe v. Hardy, 7 Utah 368, 26 P. 982; Mount Pleasant v. Beckwith, 100 U.S. 514, 25 L.Ed. 699; In re House Bill, 12 Colo. 466, 21 P. 478; Perry Co. v. Conway Co., 52 Ark. 430, 12 S.W. 877, 6 L. R. A. 665; Dillon on Municipal Corporations, 4th ed., sec. 63, also sec. 189; New Orleans v. Clark, 95 U.S. 644, 24 L.Ed. 521--particularly at bottom of page 653 and on page 654.

B. S. Crow, for Defendant.

An assessment made upon property which is untaxable is void, as an elementary principle of taxation, and the sale of land made in payment of taxes based upon such an assessment is a void sale, and passes no vestige of title. (State v Stevenson, 6 Idaho 367, 55 P. 886; People v. Owyhee Min. Co., 1 Idaho 409; Quivey v. Lawrence, 1 Idaho 313; Commrs. of Custer Co. v. Commrs. of Yellowstone Co., 6 Mont. 36, 9 P. 586.) The authority on the general question as to whether or not lands selected where the title for the land in lieu of which it is taken is not yet passed upon and approved by the commissioner of the general land office is very plain and definite. (Cosmos Expl. Co. v. Gray Eagle Oil Co., 190 U.S. 301, 23 S.Ct. 692, 24 S.Ct. 860, 47 L.Ed. 1064; C. Clarke, 32 L. D. 233; Heirs of Geo. Liebes, 33 L. D. 458; Wm. E. Moses, 33 L. D. 333; Wisconsin Cent. R. Co. v. Price Co., 133 U.S. 496, 10 S.Ct. 341, 33 L.Ed. 687.) The equitable title to land in a forest reservation which has been tendered to the government in exchange for other land remains in the applicant until such time as his application is accepted by the commissioner of the general land office. (C. W. Clarke, 32 L. D. 233; Cosmos Oil Co. v. Gray Eagle Oil Co., 190 U.S. 301, 23 S.Ct. 692, 24 S.Ct. 860, 47 L.Ed. 1064.) In determining the indebtedness of the county within the meaning of the statutory provision limiting the same, there should be deducted the cash assets of the county, the amount of the taxes assessed on the county tax-roll for the current year, the amount of taxes now on the rolls for prior years. (State v. Hopkins (1896), 14 Wash. 59, 44 P. 134, 550; Mullen v. Sackett, 14 Wash. 100, 44 P. 136, citing Franch v. City of Burlington, 42 Iowa 614; Kelly v. Pierce Co., 15 Wash. 697, 46 P. 253.) In determining the indebtedness of the county within the meaning of the constitutional provision limiting the same, the amount should be reduced by deducting the assets on hand. (Field v. Stroub, 103 Ky. 114, 44 S.W. 63; Rodgers v. Lesueur, 57 Minn. 434, 59 N.W. 488.) Shall the whole of Nez Perce county or only the portion stricken off from Shoshone county and annexed to Nez Perce county be liable for the indebtedness? (Am. & Eng. Ency. of Law, pp. 25-40; Idaho Const., art. 18, sec. 3.) Under constitutional provisions of this nature, or legislative acts declaring the same principle, it is almost invariably held that the debt of the old county is a lien on the detached portion. (Marion Co. v. Harvey Co., 26 Kan. 181; Commrs. of Granville Co. v. Commrs. of Vance Co., ...