State v. Duncan

• Decision Date: 15 October 1923
• Docket Number: 5380.
• Parties: STATE EX REL. NORTHERN PAC. RY. CO. v. DUNCAN, COUNTY CLERK.
• Court: Montana Supreme Court

219 P. 638

68 Mont. 420

STATE EX REL. NORTHERN PAC. RY. CO. v. DUNCAN, COUNTY CLERK.

No. 5380.

Supreme Court of Montana

October 15, 1923

Mandamus by the State, on the relation of the Northern Pacific Railway Company, against A. J. Duncan, as County Clerk of Lewis and Clark County, to compel him to calculate and extend upon the assessment book the taxable value of all improvements upon relator's right of way, upon the basis of 30 per cent. of the assessed value of such improvements. Writ issued.

Gunn Rasch & Hall, of Helena, for appellant.

Wellington D. Rankin, Atty. Gen., for respondent.

CALLAWAY C.J.

In this action the Northern Pacific Railway Company, as relator, asks a writ of mandate compelling respondent as county clerk to calculate and extend upon the assessment book of Lewis and Clark county the taxable value of all improvements upon relator's right of way, upon the basis of 30 per cent. of the assessed value of such improvements. It is alleged that respondent, unless otherwise commanded by this court, will make the calculation on the basis of 40 per cent., under an order of the state board of equalization; that board having instructed the county clerks of Montana to extend upon the assessment books of their several counties the taxable value of buildings and improvements upon the rights of way of railways upon the 40 rather than the 30 per cent. basis.

The concrete question for decision is whether such improvements are embraced within class 4 or class 7 of section 1999, R. C 1921, commonly known as the classification law. So far as is material here, the provisions of that section are (it being conceded that the other classes have no application):

"For the purpose of taxation the taxable property of this state shall be classified as follows: * * * Class four. All land, town and city lots, with improvements, manufacturing and mining machinery, fixtures and supplies, except as otherwise provided by the Constitution of Montana. * * * Class seven. All property not included in the six preceding classes."

Section 2000 provides:

"As a basis for the imposition of taxes upon the different classes of property specified in the preceding section, a percentage of the true and full value of the property of each class shall be taken as follows: * * * Class 4. Thirty per cent. of its true and full value. * * * Class 7. Forty per cent. of its true and full value."

Respondent asserts that the subject is controlled by section 16 of article 12 of the Constitution, which declares:

"All property shall be assessed in the manner prescribed by law except as is otherwise provided in this Constitution. The franchise, roadway, roadbed, rails and rolling stock of all railroads operated in more than one county in this state shall be assessed by the state board of equalization and the same shall be apportioned to the counties, cities, towns, townships and school districts in which such railroads are located, in proportion to the number of miles of railway laid in such counties, cities, towns, townships and school districts."

His contention is that the roadway, which this court has held to mean the right of way, upon which the property in question is situated, is and must be assessed by the state board of equalization as a "roadway," and not as "land." To fortify this position he calls our attention to section 2023, R. C. 1921, in which it is directed that the land must be assessed in parcels or subdivisions, and which section clearly does not intend to include roadways; and also to section 2026 which directs that all lands shall be classified into seven groups which are stated and none of which includes roadways. These two sections evidently are directions to the assessor and those who levy taxes upon his assessment, and have no reference to an assessment made primarily by the state board of equalization.

It is asserted that the improvements mentioned in class 4 of section 1999 apply only to those upon land, town, and city lots, and, as the improvements in question are not upon town or city lots, and not upon land because within a roadway, therefore the improvements in question do not come within class 4, and so inevitably must come within class 7.

By the provisions of the Constitution roadways are regarded as entities and are assessed as such. Improvements of the character of those involved in the present case have always been separately assessed from the roadway, and both sides concede it should be so.

Subdivision 7 of section 2003 directs the assessor to require a statement under oath of--

"all depots, shops, stations, buildings, and other structures erected on the space covered by the...