State ex rel. Freebourn v. Yellowstone County

• Decision Date: 02 March 1939
• Docket Number: 7910.
• Citation: 88 P.2d 6,108 Mont. 21
• Parties: STATE ex rel. FREEBOURN, Atty. Gen., v. YELLOWSTONE COUNTY et al.
• Court: Montana Supreme Court

88 P.2d 6

108 Mont. 21

STATE ex rel. FREEBOURN, Atty. Gen., v. YELLOWSTONE COUNTY et al.

No. 7910.

Supreme Court of Montana

March 2, 1939

Original proceeding by the State of Montana, on the relation of Harrison J. Freebourn, Attorney General of the State of Montana, against Yellowstone County and others, to enjoin the issuance of a tax deed to certain property belonging to the state.

Permanent writ of injunction granted.

ANGSTMAN J., dissenting.

W. W Wertz, of Helena, for relator.

Geo. S Smith, of Billings, for respondents.

CHARLES B. ELWELL, District Judge.

This cause comes before this court upon an original proceeding for injunctive relief, based upon a complaint and petition for injunction, and upon an order to show cause and temporary injunction issued by this court. The respondents have filed their answer and also supporting affidavits. The facts are not in dispute.

By Chapter 118 of the Laws of the Eighth Legislative Assembly 1903, establishment of a sub-experimental station of the Agricultural Experimental Station near Billings, Montana, was provided for, and provision was also made for acquiring land for that purpose. Section 3 of that chapter provided: "That for the purpose of securing title to the land selected by them for said sub-station, the Governor and Secretary of State are hereby authorized and empowered to either use the land hereto-fore acquired by the State for the Eastern State Prison, near Billings and described as: [here follows a description of numerous lots and blocks], or if such land, in their judgment is not suitable for the purpose of such sub-experimental station, then they shall and are hereby empowered to convey such land described as aforesaid in exchange for such suitable tract of land for the sub-experimental station as they may deem of at least equal value."

The land for the Eastern State Prison had been acquired under an Act of the legislature of the session of 1893, page 194. The establishment of the Eastern State Prison had evidently been abandoned, although land had been secured therefor. Apparently the land for a prison site was traded, and there was acquired by the State of Montana, under Chapter 118, supra, a site for a sub-experimental station, described as the S1/2 SE1/4 SE1/4 of section five (5), Township one (1) South, Range Twenty-six (26) East, comprising twenty (20) acres, more or less.

The project for a sub-experimental station near Billings was also abandoned, and, in view of the abandonment of the project, the state legislature in 1907 passed legislation, which was included in Chapter 188 of the Laws of 1907. The portion dealing with the lands here in question is as follows: "The State Board of Land Commissioners is hereby empowered to sell and dispose of all lands acquired under and by virtue of the provisions of Chapter 118, Session Laws of 1903, upon the same terms and conditions as provided by law for the sale and disposition of all other state lands."

In 1913 a strip of land four hundred feet (400') in width and extending across the S1/2 SE1/4 SE1/4 of section five (5) Township one (1) South, Range Twenty-six (26) East, immediately north of the south line thereof, was included in the O'Donnell Drain Special Assessment District in Yellowstone county. Special drain assessments were levied against the land which belonged to the state, and subsequently the lands were offered for sale for delinquent drainage district assessments. In what year this happened we are not informed. Just prior to the initiation of this proceeding, Yellowstone county, acting through its board of county commissioners and county clerk and recorder, gave notice of application for tax deed, and, unless restrained, the county treasurer of that county will issue a tax deed to the state's land which is included in the drain district.

At the time of the creation of the O'Donnell Drain Special Assessment District in 1913, there was in effect an Act approved March 7, 1905, Chapter 106, Ninth Legislative Session, and appearing as sections 2403 to 2497 in the Revised Codes of 1907. Section 2443 of the 1907 Codes reads as follows: "School and state lands shall be assessed their per cent apportioned for benefits, and the collection thereof shall be enforced as State and county taxes against lands are collected and enforced. School and State lands shall be included in all assessments for benefits the same as other lands, but the sum of all such drain taxes that may be assessed against any tract of school or state lands shall not aggregate a sum greater than fifty per cent of the price at which said lands are held by the State. Any amount apportioned and assessed upon school or state lands shall be reported by the county commissioners to the registrar of the State Land Office within ten days after the delivery of the assessment roll to the county treasurer. Said registrar of the State Land Office shall enter on the books of his office, against each description of such State lands, the amount of drain taxes assessed thereon, and shall certify the same to the Auditor who shall draw his warrant on the State Treasurer therefor, to be paid out of any funds in his hands not otherwise appropriated. Such amount shall be forwarded by the Registrar of the State Land Office to the County Commissioners on or before the fifteenth day of January next, and shall by him be applied in payment of such taxes. No deed shall issue for such lands until all such drain taxes are paid with interest at seven per cent." There was also included in the Act approved March 7, 1905, above cited, a section to which no reference was made by either party to this proceeding, which has some bearing on the proceeding. This provision became section 2451 of the Revised Codes of 1907, and reads in part as follows: "All drain taxes assessed under the provisions of this act shall be subject to the same interest and charges, and shall be collected in the same manner as State and other general taxes are collected, and collecting officers are hereby vested with the same power and authority in the collection of such taxes as are or may be conferred by law for collecting general taxes."

To bring the history of this law up to date, we find that the Drain District Law was amended by Chapter 144 of the Eleventh Legislative Assembly, 1909, but the two sections above mentioned were not changed. Again we find that by Chapter 147 of the Fourteenth Legislative Assembly, 1915, the Drain District Law was re-enacted and amended, but that the two sections above mentioned were re-enacted without any substantial change. However, the present Drain District Law was enacted in 1921, as Chapter 129, Laws of 1921, and section 2443 of the 1907 Codes, supra, was apparently replaced by what has become section 7326 of the 1935 Codes, as follows:

"Lien of assessments--payment assessments against state lands. From the time of the entry of said order, assessments for construction of new work and additional assessments and interest thereon shall be a lien upon the lands assessed, until paid. Any owner of land, or any corporation assessed for construction, may, at any time within thirty days after the confirmation of said report, pay into court the amount of the assessment against his land or any tract thereof, or against any such corporation. Said payment shall relieve said lands from the lien of said assessment, and said corporation from all liability on said assessment.

Upon presentation to the state auditor of an order of the district court having jurisdiction of such drainage district, properly certified, the auditor shall draw his warrant on the treasurer on the common school fund in favor of the commissioners of such drainage district for the total amount that may be assessed against any lands included in such district, the title to which is in the state of Montana, and upon the payment of such warrant such lands shall thereby be relieved from the lien theretofore created for such costs of construction."

In Chapter 129 of the Laws of 1921 the section known as section 2451 of the Codes of 1907, supra, was replaced in part by a section which became section 7329 of the Codes of 1935, as follows: "District taxes--how certified and collected. On or before the first Monday in September of each year the commissioners shall certify to each county treasurer of each county wherein the lands of the district are situate a correct list of all the district lands in such county, and the owners thereof, together with a statement of the amount of the total tax or assessment against said lands for district purposes, for that year, and the county treasurer of each county shall collect such taxes or assessments at the same time and in the same manner as county and state taxes."

In order to get a complete picture of the legislation germane to this case, we will cite that portion of Chapter 129 of the Laws of 1921, which is now section 7364 of the 1935 Codes "Repealing clause--exceptions. Except as hereinafter provided, the provisions of chapter 147 of the session laws of 1915, chapter 144 of the session laws of 1909, sections 2403 to 2497, both inclusive, of the Revised Codes of Montana for 1907, and all acts and parts of acts in conflict herewith, are hereby repealed; provided, however, that where any drainage district shall have already been organized under the provisions of any of the laws in this section referred to, and shall have issued bonds, warrants, or other evidence of indebtedness, or entered into any contract of purchase or construction, nothing herein contained shall be construed as affecting the rights of the holders of said bonds, warrants, or other evidence of indebtedness, or of any person, persons, corporation, or association parties to such contract or...