State ex rel. Sadler v. Evans

• Citation: 77 P.2d 394,106 Mont. 286
• Decision Date: 02 March 1938
• Docket Number: 7791.
• Parties: STATE ex rel. SADLER v. EVANS, County Assessor, et al.
• Court: United States State Supreme Court of Montana

77 P.2d 394

106 Mont. 286

STATE ex rel. SADLER v. EVANS, County Assessor, et al.

No. 7791.

Supreme Court of Montana

March 2, 1938

Appeal from Sixth District Court, Gallatin County; Benjamin E. Berg Judge.

Mandamus proceeding by the State, on the relation of Harold C. Sadler against Philip Evans, as County Assessor, and A. M Brandenburg, as County Treasurer of Gallatin county, Mont to require the assessor to assess an automobile, and the treasurer to register it upon payment of the proper tax and registration fee, and to issue a license for 1938. From an adverse judgment, the defendants appeal.

Judgment affirmed as to defendant Evans and reversed as to defendant Brandenburg.

H. B. Landoe, of Bozeman, and John A. Matthews, of Helena, for appellants.

J. M. Stotesbury and George Y. Patten, both of Bozeman, for respondent.

ANGSTMAN Justice.

This is an appeal from a judgment awarding a peremptory writ of mandamus. The question involved is the sufficiency of the petition for the writ. It was raised by motion of defendants to quash the alternative writ on that ground and by their election to stand upon their motion.

The petition alleges that defendant Brandenburg is the treasurer and defendant Evans the assessor of Gallatin county; that relator on January 7, 1938, purchased a certain described automobile from the Roman Motor Company, a dealer in new and secondhand motor vehicles at Bozeman; that relator applied to the defendant treasurer for the registration of the car for the year 1938; that at the time of so applying he "tendered to the defendant" treasurer "the sum of $11.00, the same being the amount of the license and registration fees," and that he "then and there demanded" that the treasurer "register the said automobile for the year 1938," and issue to petitioner the proper receipt for the registration fee and "the proper license plates" to be attached to the car; that the treasurer refused to accept the money, and refused to register the car, and gave as his reason that the Roman Motor Company was the owner of other motor vehicles on January 1, 1938, on which the 1938 taxes had not been paid, and declined to accept the application until all taxes of the Roman Motor Company on all vehicles owned by it on January 1st were paid in full; that before making application to the treasurer, relator submitted the application to the defendant assessor and asked him to enter on the application in the space provided thereon the full and true and assessed valuation of the automobile for the year 1938, and the assessor refused to assess the automobile.

The petition further alleges that on January 1, 1938, the automobile in question constituted a part of the stock of merchandise of the Roman Motor Company, and was assessable and taxable as a part of such stock of merchandise, and not as a motor vehicle owned by, and in the possession of, a purchaser and private owner thereof, and that under the law the automobile was to be legally classified on January 1, 1938, as merchandise owned by the dealer on which a valuation for taxation of 33 1/3 per cent. of its value would be made, and not as an automobile in the hands of a private owner and user thereof, on which a valuation for taxation of 20 per cent. of its value would be made.

The petition then alleges that defendants failed in the performance of their respective duties, and deprived relator of an assessment and registration certificate and license plates, and, in consequence, of his right to use the automobile on the highways of the state.

The peremptory writ, in conformity with the prayer of the petition, commanded the assessor to assess the car, and the treasurer to register it, upon payment of the proper tax and registration fees, and to issue a license for 1938.

As against a public officer, the writ of mandamus issues to compel the performance of an act which the law specially enjoins as a duty resulting from the office. Section 9848, Rev.Codes. It will not issue except upon a showing of a clear, legal right to the relief sought. State ex rel. Duggan v. District Court, 65 Mont. 197, 210 P. 1062; Magelo v. Industrial Accident Board, 103 Mont. 477, 64 P.2d 113; State ex rel. Blenkner v. Stillwater County, 102 Mont. 130, 56 P.2d 1085.

Whether relator was entitled to relief here depends upon the meaning of chapter 72, Laws of 1937. That act has previously been before this court and upheld. Wheir v. Dye, 105 Mont. 347, 73 P.2d 209, 216.

It requires the payment of the tax on each automobile for the current year of registration before the application for registration may be accepted by the county treasurer. It requires the applicant to submit his application to the county assessor before presenting it to the treasurer, and requires the assessor to enter on the application "the full and true and the assessed valuation of said automobile for the year for which said application for registration is made." Section 1. It makes all automobiles in the state assessable as of, and on, the first day of January of each year, and the tax is computed on the basis of the preceding year's levy. No motor vehicle shall be subject to taxation more than once each year.

In the Wheir Case, in speaking of the tax against the dealer in automobiles, we said: "It is suggested that where a dealer in motor vehicles has in stock certain of such vehicles on January 1st, and they are assessed in accordance with the provisions of chapter 72 as a part of his stock in trade, and he, prior to paying the taxes on them, sells one of them to a purchaser who applies for registration, the assessor will on the application make another assessment on the property, and the property will be subject to double assessment and taxation. When the motor vehicle is assessed in the hands of the dealer who pays on 33 1/3 per cent. of the true value, as we have seen, the tax is owing by him on that basis, and before that motor vehicle can be registered or re-registered that tax must be paid. However, no double taxation will result, for it is the duty of the county treasurer, where there is a double assessment for the same year, to collect only the tax justly due and make return of the facts under affidavit to...