State v. Moulton

• Decision Date: 22 March 1920
• Docket Number: 4567.
• Citation: 189 P. 59,57 Mont. 414
• Parties: STATE EX REL. WOODWARD v. MOULTON ET AL.
• Court: Montana Supreme Court

189 P. 59

57 Mont. 414

STATE EX REL. WOODWARD v. MOULTON ET AL.

No. 4567.

Supreme Court of Montana

March 22, 1920

Original mandamus proceeding by the State, on relation of Herbert S Woodward, against B. F. Moulton and others, as members of the Board of County Commissioners of Fergus County. Writ granted.

O. W McConnell, of Helena, John J. Jewell, of Hobson, and Earl Wineman, of Stanford, for relator.

Belden & De Kalb and Ralph J. Anderson, all of Lewistown, for respondents.

MATTHEWS J.

On the 25th day of November, 1919, relator, with 584 other persons filed with the respondent board two petitions, one from Cascade county and one from Fergus county, for the creation of a new county to be known as Judith Basin county. These petitions contained a statement of all facts required by law and necessary to confer jurisdiction upon the board to act; thereupon a day was fixed for the hearing of the petitions, and notice given and proof made of the publication as required by law, and a cash bond in the sum of $5,000 was furnished. Thereafter, and within the time allowed by law, certain petitions were filed with the board for the exclusion of territory within the boundaries of the proposed county, and other petitions for the inclusion of certain other territory.

On the day of the hearing, protestants against the creation of the proposed county challenged the sufficiency of the verification of the Cascade county petition, on the ground that one of the signers, H. S. Thurston, was not a taxpayer. This matter was argued, testimony taken thereon, and taken under advisement by the board. The board heard the evidence as to the sufficiency of the petition from Fergus county and of the exclusion petitions Nos. 1 and 3, and thereafter determined that H. S. Thurston was not a taxpayer, and therefore the petition from Cascade county was insufficient, and rejected the same. The board then found that the territory described in exclusion petitions Nos. 1 and 3 was each in one block, and contiguous to Fergus county, that the petitions were sufficient, and excluded the territory so described, and found that inclusion petition No. 1 was insufficient, and that inclusion petition No. 2 was filed on the day of the hearing, and therefore came too late, and rejected both of said petitions for the inclusion of territory. Thereupon the board found that, with the exclusion of the territory described in exclusion petitions Nos. 1 and 3, the remainder of the proposed county would not be reasonably compact, and the petition for the creation of the county was therefore denied.

The board further found that all petitions filed constitute one attempt to create a county, and that, upon the failure of one of the petitions to comply with the law--that is, the Cascade county petition--the board was without authority to proceed, and also that, the Cascade county petition having failed, the remaining territory in the petition for the creation of the new county contained less than 1,000 square miles, excluding the territory withdrawn by reason of exclusion petitions Nos. 1 and 3.

Relator thereupon filed his petition for a writ of mandate to compel the respondent board to reconvene and annul their order, holding that the Cascade petition was not properly verified, and to annul their order finding exclusion petitions Nos. 1 and 3 sufficient, and their order that the proposed new county did not contain the required area, and to make findings of all facts required by law to be determined, and give notice and order an election for the creation of Judith Basin county. An alternative writ was issued, and the board made return thereto, and also filed a motion to quash.

1. In support of the last-named motion, it is urged that the board, having acted in a quasi judicial capacity, and having exercised their discretion, the writ of mandate does not lie. This question has long since been determined adversely to the contention of respondents. "The rule that mandamus will not issue to control discretion or to revise judicial action, but only to direct the court to act in such matter, is to be understood as applying only to the act to be commanded by the writ, and not to the decision of purely preliminary questions of law only." Raleigh v. District Court, 24 Mont. 306, 61 P. 991, 81 Am. St. Rep. 431; State ex rel. Stringfellow v. Board of County Com'rs, 42 Mont. 62, 111 P. 144; State ex rel. Arthurs v. Board of County Com'rs, 44 Mont. 51, 118 P. 804; State ex rel. Lang v. Board of County Com'rs, 48 Mont. 28, 134 P. 297.

2. The act providing for the creation of new counties requires that--

"There shall be attached and filed with said petition or petitions an affidavit of five qualified electors and taxpayers residing within each county sought to be divided," etc. Session Laws of 1919, p. 561, § 2.

The petition from Cascade county was rejected by the board of county commissioners of Fergus county, on the ground that one H. S. Thurston was not a taxpayer. The evidence discloses that Thurston did not appear on the tax rolls of Cascade county for the year 1919. It does appear, however, that Thurston listed with the assessor, watches, jewelry, etc., of the value of $100, household goods and furniture of the value of $500, and manufacturing and mining machinery of the value of $1,800, and, in the blank affidavit attached to the assessment list, the name of H. S. Thurston appears, although the assessor entered on the flat leaf or cover of the list, the name Geyser Times. Thurston testified that he was the owner of the property described, and signed his name to the list on demand of the deputy assessor, as making oath thereto, and that the name of Geyser Times did not appear on the list at the time. He further testified that he paid the taxes by his personal checks; that he is a resident of Cascade county, and voted at the last general election; that he is the owner of the Geyser Judith Basin Times, and that there is no incorporated company.

It will be noted that the section of the act above referred to does not require that the affiant shall be a taxpayer "whose name appears on the last assessment roll of the county," as is the case in many such statutory provisions, but merely that he is a "taxpayer." "'A taxpayer' is one who owns property within the municipality, and who pays a tax, or is subject to and liable for a tax." City of Pocatello v. Murray, 23 Idaho, 447, 130 P. 383, Ann. Cas. 1914C, 1050; Lasityr v. City of Olympia, 61 Wash. 651, 112 P. 752; State ex rel. Sutton v. Fasse (Mo. App.) 71 S.W. 745. In the Pocatello Case the court said that, as the statute did not require the name of the taxpayer to appear on the assessment roll, the ownership of the property and the payment of taxes thereon were sufficient to qualify such owners of property as taxpayers. We think this is the correct rule, and that it is abundantly supported by the authorities. Thus in State v. Lowe, 56 Kan. 594, 44 P. 20, it was held that--

"The failure of an assessor to enter the name of a taxpayer on the rolls, when it was his duty to have done so, does not disqualify him as a juror."

"The fact that the property is assessed in the name of another by mistake does not disqualify a person as a juror if he is the owner of the property and pays taxes thereon." United States v. Hackett (C. C.) 29 F. 848.

And in the case of Mayer v. Sweeney, 22 Mont. 103, 55 P. 913, it was held that--

"Under Political Code, § 4749, which requires the mayor * * * to be a 'taxpaying freeholder,' a person who, at the time of his election, owned and paid taxes on personalty, and owned realty on which he was not liable for taxes for that year, because acquired since the date of assessment, is eligible."

It is clear that Thurston was a qualified elector and taxpayer, and that the petition from Cascade county was therefore sufficient in this respect. It is not necessary to pass upon the question as to whether the petition could be amended by a further verification before final hearing.

3. The next error assigned is that the board of county commissioners found that the petition for Judith Basin county was not sufficient, for the reason that, after certain withdrawals, it contained less than 1,200 square miles. The board was evidently laboring under a misapprehension of the provisions of the act. Section 1 provides that the creation of a new county must not reduce the original county to less than 1,200 square miles in area, but the new county need not contain more than 1,000 square miles. This error was, at some time before the hearing, corrected in the original findings by striking out the word "twelve" and substituting the word "ten."

4. With reference to exclusion petitions, the act (section 2) provides that:

"All such territory being excluded must be in one

block, and contain an area of not less than thirty-six square miles, and be totally within one county, and contiguous thereto. * * *"

In exclusion petition No. 1, the description of the lands to be excluded covers 10 1/2 pages of typewritten matter, single spaced, comprising an area of 143 1/32 square miles, distributed over 14 townships and with an exterior boundary line of 305 miles. In length it is 31 miles and is 21 miles wide. The exterior boundary line runs back and forth, north, east, south, west, alternately, including and excluding small tracts of land. In places the excluded land is, for a mile or more, not to exceed a quarter of a mile in width. A conception of the condition existing can only be acquired by reference to the map introduced in evidence, a copy of which is made a part of this opinion.

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This remarkable collection of tracts of land, threaded together to preserve its continuity, was declared by the respondent board to be ...