State v. Moody

• Decision Date: 10 November 1924
• Docket Number: 5621.
• Citation: 230 P. 575,71 Mont. 473
• Parties: STATE ex rel. v. MOODY, County Clerk. HINZ
• Court: Montana Supreme Court

230 P. 575

71 Mont. 473

STATE ex rel. HINZ v. MOODY, County Clerk.

No. 5621.

Supreme Court of Montana

November 10, 1924

Mandamus by the State of Montana, on the relation of E. A. Hinz against Norman M. Moody, as County Clerk of Musselshell County. Petition dismissed.

V. D Dusenbery, of Roundup, for relator.

A. H Augstman, Asst. Atty. Gen., for respondent.

LEIPER District Judge.

This is an original proceeding instituted by the relator for the purpose of obtaining a writ of mandate, directed to the respondent as county clerk of Musselshell county, Mont. For reasons which are obvious, we deem it advisable to set forth the material allegations of the petition, which are:

That relator is, and for several years last past has been, the owner of the following described real estate situated in the county of Musselshell, Mont., to wit: Lots 9, 10, 15, and 16, section 4, township 8 north, range 31 east of the M. P. M.; that said lands are what are known as coal lands, which were originally purchased by relator from the United States under the federal coal land laws, at the price of $20 per acre; that prior to the purchase of said lands by the relator, and while they were a part of the public domain of the United States, said lands were examined by the United States Geological Survey, classified as coal lands, and appraised at the value of $20 per acre; that said lands have been assessed for taxes to relator for the year 1924 at the price paid the government therefor; that respondent, as county clerk of Musselshell county, Mont., is about to calculate and extend upon the assessment books of said county the real estate herein described upon the basis of 100 per cent. of its assessed valuation.

"That on the 3d day of October, 1924, relator demanded of respondent that said lands be placed in class 4 of section 1999, R. C. 1921, and that said tax be calculated and extended upon the basis of 30 per cent. of the assessed valuation thereof, but respondent refused to make such classification, calculation, and extension, and, unless otherwise commanded by this court, respondent will place said lands in class 1 of section 1999, R. C. 1921, and will calculate and extend said taxes on the basis of 100 per cent. of said assessed valuation."

"That, unless respondent is compelled by an order of this court to calculate and extend said taxes on the basis of 30 per cent., relator's lands will have imposed upon them a tax excessive by 70 per cent. of that which is lawfully due and collectible; that relator will be unable to pay the amount of said taxes when calculated on the basis of 100 per cent. of the assessed value, and the land herein described will be sold for taxes; and that relator has no plain, speedy or adequate remedy in the ordinary course of the law."

The reasons for bringing this action in this court are set forth.

The relief prayed for is that a writ of mandate issue, commanding respondent to calculate and extend the taxes for the year 1924 upon the lands described in the petition upon 30 per cent. of the assessed value thereof. An alternative writ of mandate was issued. Respondent moved the court to quash the writ, for the reason, as set forth in such motion, that the petition does not state facts sufficient to warrant its issuance. The motion to quash performs the same functions as a demurrer, and therefore the respondent admits as true all matters properly pleaded in the petition.

It is relator's contention that the character of property described in the petition is included within the provisions of subdivision 4 of section 1999 of the Classification Law, so-called (chapter 159, Pol. Code of 1921), and that therefore the tax should be calculated upon 30 per cent. of the purchase price paid for such property, as provided by section 2000, R. C. 1921. On the other hand, the respondent contends that section 3 of article 12, of the Constitution fixes the standard of value of that character of property described in the petition; that the Classification Law above mentioned has no application to such property; and that therefore the tax should be computed upon the full price paid to the United States therefor.

By Act of Congress of March 3, 1873 (17 Stat. at Large, 607; 6 F. Stat. Ann. [2d Ed.] 593 [U. S. Comp. St. § 4659]), it is provided that:

"Every person above the age of twenty-one years, who is a citizen of the United States, or who has declared his intention to become such, or any association of persons severally qualified as above, shall, upon application to the register of the proper land office, have the right to enter, by legal subdivisions, any quantity of vacant coal lands of the United States not otherwise appropriated or reserved by competent authority, not exceeding one hundred and sixty acres to such individual person, or three hundred and twenty acres to such association, upon payment to the receiver of not less than ten dollars per acre for such lands, where the same shall be situated more than fifteen miles from any completed railroad, and not less than twenty dollars per acre for such lands as shall be within fifteen miles of such road."

This act provides the means whereby the coal lands of the United States may be acquired by certain individuals, or associations composed of such persons.

From the allegations of the petition supra, it will be noted that the property in question consists of coal lands classified and approved as such by a department of the United States government, and purchased from it by the relator, at the price of $20 per acre. The Constitution of Montana was adopted by our constitutional convention and ratified by the people of Montana in 1889. The Act of Congress of March 3, 1873, supra, was therefore in force at the time of the adoption and ratification of our Constitution; and we think it may fairly be assumed that the framers of our Constitution had in mind this act of Congress when the provisions of section 3 of article 12 of the Constitution were under consideration.

It is unnecessary for us to now consider the question whether or not the property involved herein constituted "mining claims," within the meaning of section 3 of article 12 above, for counsel for respondent assert in their brief "that the lands (meaning those described in the petition) constituted mining claims, there can be no doubt," and counsel for relator tacitly agrees to this proposition in his reply brief, and each of the counsel for the respective parties so stated in oral argument.

By the enactment of chapter 159 of the Political Code (sections 1999 and 2000, R. C. 1921), the Legislature classified, for the purpose of taxation, the property of this state. The provisions of this law, in so far as the same are relevant to the matter in controversy herein, are (section 1999):

"For the purpose of taxation the taxable property in 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."

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."

In the case of Hilger v. Moore, 56 Mont. 146, 182 P. 477, this court, referring to sections 1999 and 2000, said:

"The act in question has nothing whatever to do with either the assessment of property or the determination of the rate of the tax levy. It is not directed to the assessor. His duties are defined by the statutes in force when this measure was enacted."

If the character of property described in the petition herein is properly included within the provisions of subdivision 4 of section 1999, supra, then certainly the tax thereon must be computed upon 30 per cent. of the value. Section 1 of article 12, Constitution, provides:

"The necessary revenue for the support and maintenance of the state shall be provided by the legislative assembly, which shall levy a uniform rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, except that specially provided for in this article."

Thus a duty is enjoined upon the legislative department of the state government. Speaking of section 1, this court, in the case of Northern P. Ry. Co. v. Musselshell County, 54 Mont. 96, 169 P. 53, among other things, says:

"As expressive of the purpose that all property should bear its just proportion of the burden of supporting and maintaining the government, the convention adopted section 1. Under this it became the duty of the Legislature to provide for a uniform rate of assessment and taxation, upon a just valuation of all property, except as otherwise provided in other sections of the article. By section 16 it was made the duty of the Legislature to provide generally the manner of assessment, except as otherwise provided; there being added a specific provision as to who should assess railroad property. * * * In section 2 it provided for exemptions, enumerating what property was to be absolutely exempt, and what the Legislature might, in its discretion, exempt."

Solely for convenience we will subdivide section 3 of article 12 into four parts, numbering these parts with letters (a), (b), (c), and (d), respectively, and again, as a matter of convenience, reference will be made to these four parts by the letter designating it. Section 3 of article 12 (so divided is):

(a) "All mines and mining claims, both placer and rock in place, containing or bearing gold, silver, copper,

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