State ex rel. Tillman v. District Court of Tenth Judicial Dist. in and for Fergus County

• Decision Date: 06 January 1936
• Docket Number: 7509.
• Citation: 53 P.2d 107,101 Mont. 176
• Parties: STATE ex rel. TILLMAN et al. v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al.
• Court: Montana Supreme Court

53 P.2d 107

101 Mont. 176

STATE ex rel. TILLMAN et al. v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al.

No. 7509.

Supreme Court of Montana

January 6, 1936

Rehearing Denied Jan. 21, 1936.

Original application by the State, on the relation of William Tillman and another, for a writ of supervisory control against the District Court of the Tenth Judicial District of the State of Montana in and for the County of Fergus, and Stewart McConochi, Judge thereof. On respondents' motion to quash.

Motion sustained, and proceeding dismissed.

Merle C. Groene, of Lewistown, for appellants.

Raymond T. Nagle, Atty. Gen., and Enor K. Matson, Asst. Atty. Gen for respondents.

MATTHEWS Justice.

Original application for a writ of supervisory control. In September 1935, the county of Fergus commenced a suit against the relators, William Tillman and the State Building & Loan Association, a corporation, in the district court of that county, by the filing of a complaint which alleges the following facts:

Taxes were duly levied and assessed for the year 1929 on certain lots in the town of Roy, Fergus county, and the improvements thereon. These taxes were not paid, and in January, 1930, the property was duly struck off to the county. In each year thereafter taxes were duly levied and assessed against the property and not paid until the total amount of taxes penalty, and interest due and unpaid to the county at present is $1,107.69. The lots alone have little or no value, but the value of the buildings standing on the lots was, at all times up to shortly before the suit was instituted, sufficient to pay the full amount due and discharge the lien existing in favor of the county and against the lots and improvements thereon. However, at the time the suit was commenced, the defendants had torn down all of the buildings with the exception of one small building which, by reason of the manner in which it had been wrecked by the defendants, was then of little value, and all of the material taken from the buildings had been removed from the premises and disposed of in such manner that it can be no longer identified. It is alleged that "there is nothing left in the said property or any of it by which the said taxes, penalties and interest can be satisfied." It is further alleged that the defendants so destroyed the buildings and removed the material "for the purpose of destroying the lien of the plaintiff" and "in order to prevent the plaintiff from collecting the taxes due against the property"; that the defendants were notified of the county's lien and demand made upon them to desist, but the defendants continue, and threaten to continue, and will continue, in tearing down the buildings, and will dispose of all of the material unless restrained, and the plaintiff "will suffer great and irreparable injury and damage and that the plaintiff has no other plain, speedy and adequate remedy at law."

It is then alleged that the acts of the defendants were "done in a willful, malicious and oppressive manner to deprive the plaintiff herein of the subject-matter of its lien to the damage of the plaintiff in the sum of" $1,000. Plaintiff prays judgment for the amount due, "$1,107.69, the sum of $1,000, exemplary damages," and for an injunction against the removal of the buildings.

The complaint is sworn to by the county attorney as "true of his own knowledge." On this complaint the district court issued a temporary restraining order and an order to show cause why it should not be made permanent, returnable on a day certain. The defendants demurred to the complaint and moved to quash the order. A hearing was had, and thereon the court overruled the demurrer and denied the motion to quash, and continued the restraining order in force.

The defendant Tillman thereupon made application to this court for a writ of supervisory control, upon the ground that the trial court had erred within jurisdiction, and that, while the defendants have the right of appeal, the remedy by appeal would be wholly inadequate, for the reason that the county is entitled to a tax deed to the property, and that the county attorney stated in open court, on the hearing, that as soon as the prohibition contained in chapter 88, Laws 1935, expires on December 31, the plaintiff will apply for a tax deed on thirty days' notice, and appeal would be without benefit to the defendants, and they deprived of any remedy whatsoever. It is alleged in the application that the action of the trial court was "improper, arbitrary and wrongful," as the complaint "does not and cannot state a cause of action."

On the showing made we issued an alternative writ of supervisory control. The respondents appeared by motion to quash on the ground that the application does not state facts sufficient to entitle the relators to the writ, or to any relief. The motion and the merits of the controversy were duly argued and submitted.

We decided against the contention that a right of appeal precludes this proceeding when we issued the writ, and further consideration but confirms that decision. Where the exigency of the case--an emergency--renders the ordinary remedy by appeal inadequate, the summary appeal by writ of supervisory control is available. State ex rel. McHose v. District Court, 95 Mont. 230, 26 P.2d 345; State ex rel. Odenwald v. District Court, 98 Mont. 1, 38 P.2d 269.

Respondents contend that, as it nowhere in this proceeding appears that the relator, or his codefendant in the injunction suit, is the owner of the property involved, they must be treated as trespassers and, as such, are not entitled to relief. Inasmuch as the county attorney deemed it necessary to institute injunction proceedings against them and had alleged that their action was for the purpose of defeating the county's lien and to prevent the collection of the delinquent taxes, thus treating them as owners and not as trespassers, and in view of the disputable presumptions pertaining to a trial in this state, to wit, that a person is innocent of crime (subsection 1, § 10606, Rev.Codes 1921), that things which a person possesses are owned by him (subsection 11, Id.), and that a person is the owner of property from exercising acts of ownership over it (subsection 12, Id.), the relators' right sufficiently appears.

The sufficiency of the complaint in the injunction suit, and consequently of the application here, depends upon whether or not such an action as was commenced will lie. The relator contends that it does not lie, for the reason that it is an attempt by civil action to collect delinquent taxes, whereas no such remedy is available under our statutes on the subject.

We start our investigation of the question presented with the full understanding that "all proceedings in the nature of assessing property for purposes of taxation, and in levying and collecting taxes thereon, are in invitum, and must be stricti juris" (Perham v. Putnam, 82 Mont. 349, 267 P. 305, 309); therefore, when the statute declares the remedy or method of collecting taxes, it is exclusive, if adequate (State ex rel. Spokane & Eastern Trust Co. v. Nicholson, 74 Mont. 346, 240 P. 837), and the courts may entertain actions for this purpose only when the Legislature shall so provide. Preston v. Sturgis Milling Co. (C.C.A.) 183 F. 1, 32 L.R.A. (N.S.) 1020.

While our Constitution deals with the subject of taxation, its provisions in this regard constitute a limitation upon the legislative power and not a grant of power, as the power is inherent in the sovereign state. McCulloch v. Maryland, 4 Wheat. 316, 428, 4 L.Ed. 607. The power of taxing officials exists only by virtue of the statutes empowering them to act. 26 R.C.L. 25.

The purpose of taxation is to raise the necessary revenue for the support of the government and the consequent security of the people in the possession of their property. Cruse v. Fischl, 55 Mont. 258, 175 P. 878. A tax is an enforced contribution from the people for this purpose, in accordance with some reasonable rule of apportionment equalizing the burdens upon the people benefited. State ex rel. Pierce v. Gowdy, 62 Mont. 119, 203 P. 1115.

Taxes are levied against the person, not against property; property serving only as a basis for computing each person's measure of liability and as security for the discharge of the lien which the tax imposes (Hilger v. Moore, 56 Mont. 146, 182 P. 477), and in no way depend upon the will or consent, express or implied, of the person taxed, and therefore, when levied, do not become a debt within the meaning of the word, as ordinarily used. City of Rochester v. Bloss, 185 N.Y. 42, 77 N.E. 794, 6 L.R.A. (N.S.) 694, 7 Ann.Cas. 15. Further no lien exists on property as such security for taxes unless the Legislature has so declared. Walsh v. Croft, 27 Mont. 407, 71 P. 409.

The property here in question is real property, which includes the "lands, tenements [and] hereditaments" (section 16, Rev.Codes 1921), and, for taxation purposes, means lands and improvements (section 1996, Id.), the improvements being assessed with the land on which they stand (section 2023, Id.), and "every tax due upon real property is a lien against the property assessed" (section 2154, Id.).

The taxes due cannot be collected by an action instituted for that purpose, nor can the lien thereof be foreclosed as may for example, a mechanic's lien or the lien of a mortgage, not only because the Legislature has not provided such a remedy, but also because that body has made such action unnecessary by providing that "every tax has the effect of a judgment against the person, and every lien created by this title has the force and effect of an execution duly levied against all...