State ex rel. Board of Com'rs of Valley County v. Bruce

• Decision Date: 14 March 1938
• Docket Number: 7784.
• Parties: STATE ex rel. BOARD OF COM'RS OF VALLEY COUNTY v. BRUCE, County Assessor, et al.
• Court: Montana Supreme Court

77 P.2d 403

106 Mont. 322

STATE ex rel. BOARD OF COM'RS OF VALLEY COUNTY v. BRUCE, County Assessor, et al.

No. 7784.

Supreme Court of Montana

March 14, 1938

Original proceeding for writ of mandate by the State of Montana, on the relation of the Board of Commissioners of Valley County Montana, against Archie G. Bruce, County Assessor of Valley County, and others, to compel levy and collection of taxes wherein certain taxpayers filed complaints in intervention by leave of court.

Proceeding dismissed.

ANGSTMAN J., dissenting.

Booth & Booth, of Glasgow, for petitioner.

J. M. Kline and C. H. Roberts, both of Glasgow, for interveners Fort Peck concessionaires.

Toomey, McFarland & Chapman, of Helena, for interveners residents of Fort Peck area.

Thomas Dignan, County Atty., and Otis A. Hallett, Asst. Co. Atty., both of Glasgow, for interveners.

H. J. Freebourn, Atty. Gen., and Enor K. Matson, Asst. Atty. Gen., for interveners.

T. R. Marron, of Nashua, for defendants.

ANDERSON Justice.

This is an original proceeding brought by the relator, the Board of County Commissioners of Valley County, as such, seeking a writ of mandate against the county assessor and the county treasurer, commanding them to levy and collect taxes in accordance with the statutes of this state upon personal property owned by persons and private corporations located within the townsite of Fort Peck, and other lands belonging to the United States acquired for the Fort Peck Dam. The sheriff of Valley county is made a party defendant, and a like writ is sought commanding him to enforce the license laws of this state against persons, firms and businesses located in the same area.

A similar proceeding was before this court, brought by the same relator, against the assessor and treasurer, seeking the same relief, which was denied, in the case of State ex rel. Board of Commissioners v. Bruce, 104 Mont. 500, 69 P.2d 97, 98. Since the decision in that case some three cases have been decided by the Supreme Court of the United States, which, it is argued, are controlling here and lead to a different conclusion from that announced in the former case.

The respondents have filed answer to the application for the writ. Certain persons, whose property or businesses would be subject to taxation or the payment of licenses, have by leave of court filed complaints in intervention. Other interested parties have, through counsel by leave of court first had, appeared as amici curiae, and were heard by the court. There is no dispute as to the essential facts on the face of the various pleadings. The facts in this case are in most respects identical with those appearing in the former proceeding, although some additional facts are found in the proceeding here.

In the former case, after the denial of a petition for rehearing, a petition to reopen the case under the provisions of section 9187, Revised Codes, was filed. That petition sought to bring to the attention of the court the same additional facts which are found in the pleadings in this case. By that petition, the briefs filed in support of it, and by the briefs and arguments here, it is sought to secure a re-examination of certain propositions which were settled in the former opinion, and could in nowise be affected by the recent decisions of the Supreme Court of the United States.

It is here argued that the former decision is res judicata; also, that under the rule of stare decisis, the former opinion is controlling. These contentions present serious questions, but in view of our conclusions we shall assume for the purposes of this opinion, but without so deciding, that neither the plea of res judicata nor the rule of stare decisis is of binding force in the consideration of this case. However, since some of the questions decided in the former opinion have not been here reargued, let it be understood that we are adhering to what was said in the former opinion, unless expressly modified herein.

The statement of the case appearing in the former opinion states the facts disclosed here, except certain additional facts which we shall presently notice. Hence we will not restate what was there said with reference to the facts.

We decided in the former opinion that section 25, Revised Codes, was the controlling act of cession until the approval of section 25.1 on January 17, 1934. Since section 25 contains no reservation of the right in the state to tax, whereas section 25.1 contains such a reservation, much of the controversy involves the question as to which of these acts of cession prevails.

We determined the facts to be in the former case that the lands in the townsite of Fort Peck were acquired by the United States securing options to purchase in the fall of 1933 from the owners of these lands; that while these options were in force possession was taken with the consent of the owners, and improvements were made on the lands by the United States; and that later, and after the enactment of section 25.1, title was conveyed and the purchase price paid in accordance with these options. The facts now presented are much more in detail covering this same subject. The property which is sought to be taxed, and the businesses which are sought to be licensed, are in or on the townsite of Fort Peck. This townsite is located on lands purchased from Chester T. Taylor, Peter Maxness, and the state of Montana. Ninety-four per cent. of the townsite lies on lands acquired from Taylor.

On November 11, 1933, Taylor executed, for a recited consideration, an option to purchase his lands to the United States for $23,500. It provided: "This option to be exercised by giving me notice of acceptance within thirty days, *** possession to be given immediately upon notice of acceptance." On December 1, 1933, and thereafter, the United States took exclusive possession of these lands with the consent of Taylor, and continued in possession of them thereafter. During the month of December, 1933, improvements were made on the lands by the United States. On November 29, 1933, authority to purchase and take possession of these lands was requested of the Secretary of War, which was granted on December 28, 1933. The acts in taking possession were ratified at that time by the Secretary of War. Later, on February 10, 1934, a contract for the sale of the same lands for the same price was executed by Taylor to the United States. Deeds for the lands were executed and delivered on April 11, 1934, June 16, 1934, and January 5, 1935. The title to an 80-acre tract of the Taylor lands was based on a tax title, which the Department of Justice failed to approve. A friendly condemnation suit was brought as to this tract, the award being the contract price. The decree was recorded November 2, 1935. The other tract, owned by an individual, was acquired by the United States in a similar manner, except that no condemnation proceeding was involved. The dates of the options, taking of possession, erection of improvements, consent to the purchase, and ratification of the taking of possession in both instances were substantially the same. All conveyances of title were made after the effective date of section 25.1.

The state lands were acquired in the following manner: On November 7, 1933, the State Land Board was notified of the necessity of the United States obtaining title to those lands. This board passed a resolution on November 17, 1933, authorizing the United States and its agents to enter upon the lands and conduct any work, operation or activity relating to the construction of the Fort Peck project, subject to the rights of a lessee who gave his consent to the occupation of these lands by the United States. On December 1, 1933, exclusive possession was taken of these lands and improvements were begun thereon. On February 6, 1934, a definite price for them was offered by the United States, which was accepted February 16 of the same year, and patent was issued therefor on June 8 following.

It is argued that the options were not binding contracts in themselves and expired before acceptance, and in any event the lands were not purchased until the conveyances of title were executed, and that therefore the lands were purchased after the effective date of section 25.1.

An option contract, when accepted within the time and in the manner provided, becomes a valid contract upon which specific performance may be had. Torelle v. Templeman, 94 Mont. 149, 21 P.2d 60. Acceptance of an option may be implied from the acts and conduct of the parties, as by taking possession, or the making of improvements on the property. 66 C.J. 501; Curran v. Rogers, 35 Mich. 221; Clark v. Harmer, 5 App.D.C. 114; Harless v. Petty, 98 Ind. 53; James on Option Contracts, § 827. The record contains no proof of notice in accordance with the option, but possession was to be surrendered upon notice of acceptance. Possession was surrendered while the option was in force. Accordingly, the notice must either have been given or waived. The option did not specify that the notice must be in writing; it could be given verbally as well as by formal writing.

When the United States went into possession under these options and made improvements upon the premises, it accepted the options, and thereby a binding contract to purchase resulted. A suit could be maintained on this binding obligation the terms of which were found in the option, against the United States under the Tucker Act, 24 Stat. 505, 28 U.S.C.A. § 41, subd. 20. See Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637.

It is contended that these lands were not purchased within the meaning of article 1, § 8, cl. 17, of the Federal Constitution; that, in order for a purchase to be made within the meaning of the Constitution,...