State v. Jeffries
| Decision Date | 21 July 1928 |
| Docket Number | 6344. |
| Citation | 270 P. 638,83 Mont. 111 |
| Parties | STATE ex rel. v. JEFFRIES, County Treasurer. CITY OF GREAT FALLS |
| Court | Montana Supreme Court |
Rehearing Denied Oct. 1, 1928.
Appeal from District Court, Cascade County; W. H. Meigs, Judge.
Proceedings in mandate by the State, on the relation of the City of Great Falls, against W. S. Jeffries, as County Treasurer of Cascade County. Judgment for relator, and the County Treasurer appeals. Reversed and remanded, with directions to dismiss.
H. R Eickemeyer, La Rue Smith, W. P. Costello, E. J. Stromnes, and Cooper, Stephenson & Hoover, all of Great Falls, for appellant.
Greene & Cockrill, of Great Falls, and Belden & De Kalb and Merle C Groene, all of Lewistown, for respondent.
Proceedings in mandate by the state, on relation of the city of Great Falls, to compel W. S. Jeffries, as county treasurer of Cascade county, to spread certain installments of special assessments against a certain lot situated within the city. Relator had judgment, and the county treasurer appeals.
On proper showing made by relator in the district court of Cascade county, an alternative writ of mandate was issued to the county treasurer, who made due return thereto. Issue being joined, the matter was submitted to the court upon an agreed statement of facts by which the following showing was made:
On June 30, 1926, Cascade county received a tax deed to a certain lot in Great Falls, which had been struck off to the county on delinquent tax sale in 1922, for taxes assessed for the year 1921 and never paid. Prior to 1921 the city of Great Falls had lawfully created special improvement districts for paving and lighting the district in which the lot in question was situated, and had duly assessed to this lot its proportionate part of the cost to be paid in yearly installments; it had later established special districts covering the same territory for the maintenance of the lights and maintenance of the boulevard, and duly levied assessments therefor against this lot. The city collected its own taxes, and all assessments of this nature against this lot were paid to the city up to and including the year 1925, but they were permitted to go delinquent for the year 1926, and on these delinquent assessments, while the lot stood in the name of the county, the lot was sold and struck off to the city. The assessments were not paid for the year 1927, and these delinquent assessments were certified by the city treasurer to the county treasurer, who refused to spread them upon the delinquent tax roll of the county this proceeding resulted.
On the showing made, the trial court rendered judgment commanding that a peremptory writ of mandate issue, requiring the county treasurer to spread the delinquent assessments. Counsel for the county treasurer asserts that the court erred in rendering judgment in favor of relator, as the lien of the special assessment was extinguished by the tax deed to the county. Counsel for relator assert the contrary, and insist that the court but commanded the county treasurer to perform a duty imposed upon him by law.
The chief question involved in the controversy between the city and county is as to whether such delinquent assessments are liens against, and should be spread against, city property to which the county has taken tax deeds prior to the certification thereof.
1. Up to 1927 the city treasurer, in cities which provide by ordinance for the collection of their own taxes, had the same power as a county treasurer to sell property for delinquent taxes, and when a payment such as is here considered became delinquent, the city council had the option to declare all payments delinquent, whereupon the whole property could be "sold the same as other property is sold for taxes." Sections 5215 and 5251, Rev. Codes 1921, chapter 156, Laws of 1925.
The Legislative Assembly of 1927, without reference to the statutes above mentioned, dealt with the same subject-matter in an act appearing as chapter 148, Laws of 1927. Here it provided that, when any tax or special assessment becomes delinquent, no sale shall be made by the city, but the city treasurer shall certify the delinquent taxes or assessments to the county treasurer, or, if the council exercises the option given it to declare the entire assessments remaining unpaid delinquent, the whole amount shall be so certified. This act then provides that:
"Upon receipt of such certificate the county treasurer shall enter such delinquent taxes and assessments in the delinquent tax list of the county, and the county treasurer in selling property for delinquent taxes must include all such city and town delinquent taxes and assessments, there being but one sale for each piece of property."
The provision last quoted contemplates that there will be delinquent taxes entered against the property on the delinquent tax list of the county, to which the certified city taxes and assessments may be added, and counsel for the county treasurer urge that in the instant case there was no place for such an entry, as no state or county taxes had been assessed against the lot for the year 1927. This fact does not justify the refusal of the treasurer, however, as, if the amount certified is a lien upon the lot, it is immaterial whether there are further delinquent taxes or not. It is conceivable that an owner may pay the state and county taxes for a certain year, and permit his city taxes and special assessments to go delinquent; but the fact that the first charges were paid would not excuse the treasurer from entering on the delinquent tax list the taxes and assessments actually delinquent.
2. As the property of the county-the lot in question-was exempt from taxation for the year 1927 (Const. art. 12, § 2; section 1998, Rev. Codes 1921), therefore there were no delinquent state and county taxes to spread upon the delinquent tax list, to which delinquent city taxes and assessments could be added. The exemption applies further to city taxes, but it does not follow that the lot was not subject to special improvement taxes.
In City of Kalispell v. School District No. 5, 45 Mont. 221, 122 P. 742, Ann. Cas. 1913D, 1101, it is held that assessments for special municipal improvements, such as are here considered, are not taxes; hence the above constitutional and statutory provisions exempting school property from taxation were held to have no application to such assessments.
In Ford v. Great Falls, 46 Mont. 292, 127 P. 1004, on the other hand, it is held that, although the exemption of United States property is contained in the same constitutional and statutory provisions, as to such property the inhibition excludes such special assessments as well as general taxes; but this holding is based upon the theory that "the federal government is supreme within the purview of the powers granted to it by the Constitution, and cannot be subject to any state," and its property is exempt from any species of taxation, even in the absence of provision therefor.
The theory upon which a municipality may levy assessments for special improvements is that the property charged receives a corresponding physical, material, and substantial benefit from the improvement (Power v. City of Helena, 43 Mont. 336, 116 P. 415, 36 L. R. A. [N. S.] 39); that the property assessed will be enhanced to the extent of the burden imposed (Butte v. School District, 29 Mont. 336, 74 P. 869). It is held in the latter case that property used exclusively for school purposes is not enhanced in value by ordinary street sprinkling, and therefore such property is not subject to a special assessment for that purpose. Here the lot in question is not used for county purposes, and the special improvements for which the assessments here levied are well calculated to enhance the value of a lot for building purposes.
While there is conflict of authority as to whether county property generally is liable for special improvement assessments, in the absence of direct statutory authority for the levy (see note 16 Ann. Cas. 888), on authority of the above school district cases, the property in question would, under the circumstances, be liable.
Nevertheless, in order to justify the judgment rendered, it must appear that the assessment in question was a lien upon the property (Holmes v. Weinheimer, 66 S.C. 18, 44 S.E. 82), and that such lien had not been discharged before the certification.
As to the first proposition there can be no dispute. By express statutory enactments both general taxes and assessments for special improvements are made liens upon the property assessed (sections 2154 and 5247, Rev. Codes 1921), but nothing therein contained indicates an intention that either of such liens be paramount to the other.
However "the Legislature has power to provide either that a tax sale shall create a new title, cutting off all prior liens, incumbrances, and interests, or to provide that the tax purchaser shall acquire the interest only of the person in whose name the land was assessed or of the real owner." 3 Cooley on Taxation (4th Ed.) 2930, § 1492. By the enactment of section 2215, Revised Codes 1921, providing that a tax deed conveys absolute title "free from all incumbrances, except the lien for taxes which may have attached subsequent to the sale," our Legislature adopted the first course. The tax deed mentioned is not derivative, but creates a new title in the nature of an independent grant from the sovereignty, extinguishing all former titles and liens not...
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