State v. McFarlan

• Decision Date: 20 January 1927
• Docket Number: 6050.
• Citation: 252 P. 805,78 Mont. 156
• Parties: STATE ex rel. v. McFARLAN, Co. Treasurer. CITY OF WOLF POINT
• Court: Montana Supreme Court

252 P. 805

78 Mont. 156

STATE ex rel. CITY OF WOLF POINT v. McFARLAN, Co. Treasurer.

No. 6050.

Supreme Court of Montana

January 20, 1927

Appeal from District Court, Roosevelt County; S.E. Paul, Judge.

Writ of mandate by the State of Montana, on the relation of the City of Wolf Point, to compel Neil McFarlan, as County Treasurer of Roosevelt County, Montana, to pay certain sums collected as interest and penalties on delinquent taxes. From a judgment for petitioner, directing issuance of peremptory writ of mandate, defendant appeals. Reversed, with directions.

Hugh N Marron, of Wolf Point, for appellant.

J. K Bramble, of Wolf Point, for respondent.

Victor R. Griggs, of Havre, amicus curiæ.

CALLAWAY C.J.

In this proceeding, Wolf Point, a city of the third class, sought a writ of mandate to compel the defendant, as treasurer of Roosevelt county, to pay to the city certain sums of money collected by him as interest and penalties on delinquent taxes. The taxes, collected in 1924, became delinquent in the years 1920, 1921, 1922, and 1923, and consisted of administrative as well as special improvement taxes.

After issue joined by answer, motion to quash the alternative writ and a demurrer to the complaint having been overruled, the parties agreed upon a statement of facts. Thereupon the court entered judgment for the city, directing the issuance of a peremptory writ of mandate commanding the defendant treasurer to forthwith pay to the city the sum of $35.51 "representing the interest collected by the defendant on general administrative and special improvement district taxes." From this judgment the defendant treasurer has appealed.

The city of Wolf Point has never provided by ordinance for the collection of taxes by its own treasurer, and it therefore became the duty of the county treasurer to Roosevelt county to collect them (section 5214, R. C. 1921) and to pay the same to the city treasurer without delay (State ex rel City of Cut Bank v. McNamer, 62 Mont. 490, 205 P. 951).

The defendant admits that, in his capacity as county treasurer, he collected money from the taxpayers as interest and penalties upon delinquent taxes which admittedly were due the city, but he defends against this proceeding upon grounds which may be stated briefly thus: (1) The statutes do not warrant the collection of interest and penalties upon delinquent city taxes, and it is admitted the city has never provided for the imposition or collection of such. (2) If the statutes upon their face do warrant such action, they are unconstitutional, being in contravention of section 4 of article 12 of the state Constitution. (3) As, admittedly, he has paid the money collected to the county, which has spent the same for its own purposes, mandamus does not lie.

We might dispose of this case upon technical grounds, but as it appears that other cities and towns are facing the same problem, the attorney for one of them having been permitted to argue the case as amicus curiæ, we have concluded to consider the case upon its merits so far as we are permitted to do so.

1. Section 5214, R. C. 1921, provides: "The county treasurer of each county must collect the tax levied by all cities and towns in his respective county, except in case of such cities of the first and second and third classes as may provide by ordinance for the city treasurer to collect the taxes from such corrected assessment book. The county treasurer must collect such city or town taxes, including unpaid road poll taxes, at the same time as the state and county taxes, with the same penalties and interest in case of delinquency. All publications for sales for delinquent taxes shall include such city or town taxes, there being but one sale for each piece of property, such sale to cover the aggregate of such city or town, county, and state taxes, with the penalties, interest, and cost of advertising provided by law. All moneys received from sales, redemptions, and from sales by the county, after deed given by the county treasurer as provided by law, shall be credited to the state, county, and city or town, pro rata, in the same proportions as provided in sections 2234 and 2235 of this Code."

The statute commands the county treasurer to collect city taxes with "the same penalties and interest in case of delinquency," as the law imposes for delinquency in case of taxes for state and county purposes, and it would seem clear that the penalties and interest are collected for the benefit of the city. "All moneys received from sales, redemptions, * * * shall be credited to the state, county, and city or town, pro rata, in the same proportions as provided in sections 2234 and 2235 of this Code." It is true that sections 2234 and 2235 do not mention town or city taxes, and at first blush an obscurity is suggested, but when these sections are construed with section 5214, the legislative intent is plain. This conclusion is emphasized by section 5215 which says that, when a city by ordinance provides for the collection of taxes by its own treasurer, such treasurer "shall have the same power to collect municipal taxes as the county treasurer to collect state and county taxes, and the same right to give notice, add penalties, seize and sell property for delinquent taxes, give deeds to purchasers, and to do everything that a county treasurer might do in the premises, except that he must make settlement with the city council."

The general rule is stated thus in 37 Cyc. at page 1594: "Unless otherwise directed, interest, penalties, and costs collected on delinquent taxes follow the tax, and go to the state, county, or city, according as the one or the other is entitled to the tax itself; and in cases where two or more of these are interested in the tax, such interest and penalties should be apportioned among them in the ratio of their respective shares of the tax. But the Legislature may change this rule and dispose otherwise of interest or penalties." And see State ex rel. Thayer v. Mish, 13 Wash. 302, 43 P. 40; Prowers County v. People, 17 Colo. App. 519, 69 P. 73; Board of Education v. Griffith, 116 Kan. 38, 225 P. 1063.

We do not find that the Legislature has changed the rule with respect to city taxes collected by the county treasurer. Section 2175, R. R. 1921, repealed by chapter 96 of the 1923 Session Laws, p. 257, provided that "on the 30th day of November of each year, at 6 o'clock p. m., all unpaid taxes are delinquent, and thereafter the county treasurer must collect, for the use of the county, an addition of 10 per cent., but, in our opinion, that section did not apply to city...