State v. Cole, 1670

• Decision Date: 02 June 1931
• Docket Number: 1670
• Citation: 299 P. 1040,43 Wyo. 209
• Parties: STATE v. COLE
• Court: Wyoming Supreme Court

299 P. 1040

43 Wyo. 209

STATE v. COLE

No. 1670

Supreme Court of Wyoming

June 2, 1931

ERROR to District Court, Fremont County; EDGAR H. FOURT, Judge.

Mandamus proceeding by the State, on the relation of Riverton Valley Drainage District, against Charles T. Cole, Treasurer of Fremont County. To review a judgment denying a peremptory writ of mandamus, relator brings error.

Affirmed.

For the plaintiff in error there was a brief by O. N. Gibson, of Riverton, Wyoming.

The question raised by this proceeding involves the validity of Ch. 10, Laws 1923, relating to drainage district assessments. The County Treasurer construed the Act as requiring a procedure separate and independent of proceedings provided for the collection of other taxes. The drainage commissioners contended that taxes for drainage districts are to be collected in the same manner and at the same time as other taxes. The law relating to Drainage Assessments is Chapter 10, Laws 1923. The Act is unconstitutional insofar as it makes substantial changes in the method of collecting drainage assessments which prevailed at the time drainage bonds were issued. Moore v. Co., 98 F. 111; Von Hoffman v. Quincy, 4 Wall. 535; Walker v Whitehead, 16 Wall. 314; Tennessee v. Sneed, 96 U.S. 69; Railroad v. New Orleans, 157 U.S. 219; Seibert v. Lewis, 122 U.S. 284. In Booth v. Clark (Id.) 244 P. 1099, by a majority opinion, the Idaho Court held that their statute did not require the collection of drainage taxes, at the same time and in the same manner as state and county taxes. Following the Colorado Supreme Court in Interstate Trust Company v. Smith, 181 P. 126, the dissenting opinion by two of the justices cited the opinion of Judge Lewis in Moore v. Gas Securities Co., 278 F. 111; even where a public officer is required to construe a statute in performance of his duty, the duty may be nevertheless, ministerial, and mandamus will lie to require its performance. Wilbur v. U.S. 50 S.Ct. R. 103. The answer of defendant discloses no legal defense to the petition for the writ. The court erred in overruling the demurrer thereto and in entering judgment of dismissal against the plaintiff.

For the defendant in error there was a brief by F. B. Sheldon, Jr., County and Prosecuting Attorney, of Lander, Wyoming.

Sec. 10, Ch. 10, Laws 1923, provides that drainage assessments shall be collected by the same officer, in the same manner, and at the same time as State and County taxes are collected. Pursuant to the above statute, defendant in error, understood that drainage assessments were due and payable at the same time as County and State taxes, except that drainage assessments should be kept separate and distinct from State and County taxes. 1062 C. S., as amended by Sec. 5, Laws 1923. Drainage assessments must be set forth separately as to lot or tract of land, for the reason that the assessment is a charge against each particular tract. State and County levies are handled differently. 2858 C. S., as amended by Ch. 70, Laws 1923, prescribes a different procedure as to drainage assessment liens. Separate sales are required, the County becoming the purchaser in the absence of a private purchaser at general tax sales, while the District becomes the purchaser under sales for drainage assessments. 2894 C. S., 1066 C. S. as amended Laws 1923. The Colorado legislature passed an act governing the question of drainage assessment. Laws 1925, page 315. This statute was construed on the very question at bar in the case of Moore v. Gas Securities Co., 278 F. 111. The taxpayer has but eighteen months to redeem from a sale for drainage assessments, while he has two years from date of sale if the county purchases, and three years after private purchaser bids it in in which to redeem it. The payment of one increases the lien security for the other. The treasurer is required to accept taxes tendered him, and is in fact, liable on his bond for negligence in allowing taxes to remain unpaid. 1430 C. S.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

The Riverton Valley Drainage District, a corporation, as relator, filed its petition in the District Court of Fremont County, naming therein Charles T. Cole, County Treasurer of that county, as defendant, the substance of the pleading being as follows: After averring the incorporation of relator under the state drainage district law, the official character of the defendant, the due construction of drainage works for relator and an authorized assessment to pay the cost of these works in the sum of $ 155,044.99, the petition alleges that on December 1, 1921, under proper authority, the drainage district aforesaid issued and sold its coupon bonds to the full amount of the assessment last mentioned, and thereafter, pursuant to authority first obtained--the particular date of the issue not being stated--issued and sold its refunding bonds to the amount of $ 150,000, thereby liquidating all its prior bonded indebtedness; that relator certified to the Board of County Commissioners of Fremont County the proper proportionate shares chargeable to each lot and tract of land on account of maintenance of the drainage works and the interest on said bonds, whereupon, through the action of said Board and thereafter through the action of the county assessor, the amounts so certified were assessed against the proper lands and extended upon the general county assessment roll, said roll being then delivered to the County treasurer, who was, by law, required to collect same in the same manner and at the same time as state and county taxes.

Paragraphs 11, 12 and 13 of said petition charge that since January 1, 1929, the county treasurer has disobeyed the aforesaid legal requirement as to the collection of these assessments by "offering to accept and by accepting the state and county taxes levied against district lands, without, at the same time requiring the payment of the drainage assessments due and unpaid against the same;" that he intends to continue this policy which will "continue to result in discouraging, retarding and reducing the payment of such assessments, and has resulted and will continue to result in encouraging district land owners to pay the state and county taxes upon their said lands, and permit the drainage assessments thereon to become and continue delinquent;" and that there are tracts of land which will not sell at delinquent tax sale for sufficient to discharge the aggregate amount of such taxes and assessments, and that the defendant's action "in accepting and receipting in full, for the state and county taxes against district lands, without demanding and requiring, at the same time, the payment of the drainage assessments, also, and without apportioning to Relator its just share of the amount thus collected, has resulted and will continue to result in discharging such lands from the lien of such state and county taxes, thereby reducing the security of Relator and the holder of its bonds, to their great injury and loss." Relator prayed for the issuance of an alternative writ of mandamus, requiring that defendant desist from permitting the payment of the state and county taxes against drainage district lands without requiring at the same time the payment of unpaid drainage assessments against said lands or that he show cause why he should not do so.

The writ thus sought was issued, and defendant, in response, filed an answer incorporating therein, first, a general demurrer to relator's petition; second, an admission of all allegations therein not denied in the answer; third, a denial of each and all the allegations of paragraphs 11, 12 and 13 in said petition; and fourth, an affirmative statement of the facts regarding the collection of drainage assessments by the defendant for the relator in outline as follows: That there are a number of drainage and irrigation districts in Fremont county, including in the number the relator, for whom defendant collects assessments; that the liens for state, county and school district taxes being separate and distinct from the liens provided by law for drainage and irrigation districts, in order to avoid confusion, it is necessary to keep such assessments separate from said taxes upon the combined assessment roll and tax list of the county, and they are consequently so kept. Defendant's answer then specifically alleges "that he has not, nor does he expect to collect County and State taxes in preference to the drainage assessments of the Plaintiff, or the drainage and irrigation assessments of the other Districts above named; nor has he, nor does he expect to collect any drainage assessments or irrigation assessments in preference to County, State and School District taxes, but rather does he hold his office open to receive from all tax-payers the amount due from them by way of County and State taxes, drainage assessments or irrigation assessments, and taxpayers are permitted to pay either County and State taxes or irrigation assessments or their drainage assessments, without reference the one to the other."

"3. That the defendant has not refused nor will he refuse to receive payment of any drainage assessments of the plaintiff's when the same become due and payable, upon their being tendered to him as such county treasurer; that said drainage assessments according to the records of his office become due and payable at the same time and if not paid become delinquent at the same time and in the same manner as state, county and school district taxes; that upon the failure of property owners to pay drainage assessments levied upon real property within the Plaintiff district and the same become delinquent the defendant will proceed to foreclose the plaintiff's lien upon said real property for...