The People v. Moore
| Decision Date | 01 January 1877 |
| Parties | The People, Appellants, v. C. W. Moore, Respondent. |
| Court | Idaho Supreme Court |
TAXATION-BLENDING TAXES.-The blending together of the several different kinds of taxes, in an assessment-roll, invalidates the entire tax.
CONSTRUCTION OF STATUTES.-Acts of the legislature are not to be construed retrospectively so as to take away vested rights, although they may alter or modify the remedy, nor can a healing act affect existing judgments.
SUITS FOR TAXES-COSTS.-In a suit for taxes, although the defendant recovers, the judgment should be general, without costs.
APPEAL from the Second Judicial District, Ada County.
F. E Ensign and J. Brumback, for the Appellants. R. Z. Johnson and Huston & Gray, for the Respondent.
delivered the opinion.
This action was instituted to recover taxes on five hundred and eighty shares of stock in the First National Bank of Idaho. It is alleged in the complaint that there was duly levied and assessed thereon, for the fiscal year 1875, a territorial tax of four hundred and thirty-eight dollars and seventy-five cents, and a county tax of eight hundred and twenty-seven dollars and fifty cents. The answer denies, among other things, that said taxes were duly assessed, and also that any taxes were due from defendant to plaintiff. The cause was tried by the court, without a jury, and the assessment-roll of 1875 being introduced in evidence, it appeared therefrom that all the different kinds of taxes were blended together and set down in a column headed, "Total taxes," and that there were no columns or spaces in the roll for the several different kinds of taxes of which the total taxes are composed. The court below held that plaintiff could not recover because the several kinds of taxes were not apportioned and placed in separate columns; and rendered judgment on the merits, in favor of the defendant, and also awarded and adjudged the costs of suit against the plaintiff. A motion for a new trial was afterward made upon a statement of the case, which motion was denied, and the plaintiff appeals to this court from the judgment and the order denying a new trial. On the ninth day of January, 1877, since the appeal was perfected, the legislature passed an act entitled "An act to legalize the assessment, the assessment-roll and delinquent list of Ada county, for 1875."
The errors assigned are, in substance, that the decision of the district court is against law in holding that it was necessary to a valid assessment, that the assessor should place in
separate columns the different kinds of tax; that he should apportion the taxes, separating the county from the territorial; and that it was error for the court to render judgment in favor of the defendant for costs. It is also urged by the appellant, that the defect in the assessment, if any existed, has been cured by the act of January 9, 1877. It is further claimed, now here, for the first time, that the defenses set up in the answer are prohibited by section 39 of the revenue act. This last objection might properly have been made in the court below by demurrer to the answer, but as it goes to the whole defense, and is one of the objections that, under the statutes, is never deemed to be waived, it may be raised for the first time in this court, and we will first consider and dispose of that objection.
There is nothing in the record which shows that the defendant was, at the time of the assessment, the owner of real estate, within Ada county, of the value of three times the taxes due from him; nor anything to show that he was then the owner of any real estate, except the allegation in the complaint that there was assessed to him real estate upon which the taxes had been paid. Section 27 of the revenue law provides that "the county assessor shall be ex-officio tax collector, and is hereby authorized to receive and collect all poll taxes, and hospital taxes, except traders,' gambling, hurdy-gurdy, and bawdy-house licenses, until such time as required to complete the assessment; and upon the entry of movable property to any person, firm, corporation, association, or company who does not own real estate within the county, of an actual value equal at least to three times the amount of all the taxes due and owing from such person, firm, corporation, or company, to demand the payment of taxes on the same." It further provides that in case of neglect or refusal to pay such taxes, the assessor shall seize sufficient personal property of the party and proceed, summarily, to sell the same, or sufficient thereof to satisfy the taxes and costs of sale.
We cannot presume that the defendant was the owner of real estate equal in value to at least three times the amount
of the taxes due and owing by him, but on the contrary, the presumption is that the plaintiff stated its case in the complaint as strongly as the facts would warrant, and that the defendant's real estate was not of that value. The property upon which the taxes are sought to be recovered in this action is of that character, for aught the record shows, upon which the taxes should have been collected by the assessor as ex-officio tax collector; by distraint and sale of that or other personal property belonging to the defendant, as provided by that section of the revenue act.
The suit prescribed by the revenue laws, for the recovery of taxes, is to be resorted to in cases where the party is the owner of immovable property or real estate, sufficient in value to secure the full amount of taxes by reason of the lien which the assessment creates, and also to secure the probable costs of enforcing such lien and collecting the taxes by suit; and the legislature by this statute has determined that such property must be of at least three times the value of the total taxes, in order to constitute sufficient security. Section 39 of the revenue act, prescribing and limiting the answer and defenses, is applicable to such statutory action only, where the taxes sued for are due upon real estate, or upon mixed property, consisting of both real and personal. It cannot be claimed that it was intended to be applied to a suit of this character, because it is provided and contemplated by the statute, that the taxes sought to be recovered in this action should have been collected in another mode, viz., by distraint and sale. The limitation of the defenses which may be set up is in derogation of the general rule, and ought not to be extended to cases which are not clearly within the letter of the law limiting them; certainly not to cases in which another mode for collecting the taxes is specially provided. An action may be maintained to recover taxes on movable property, not by virtue of section 39 of the revenue act, but as an additional or cumulative remedy to that specially prescribed by section 27 of the statute, and by virtue of the common-law right to sue upon an obligation or liability, and in such a case the ordinary rules of
pleading must govern; the defendant may, by answer, deny any of the material allegations of the complaint. We conclude that the answer in this case is sufficient as a defense.
The next question to be considered is, Did the district court commit error in deciding that the assessment was invalid because the several different kinds of taxes were not separately set down in the assessment-roll? Section 2 of the revenue act provides that Section 18 of the same act provides that Then follows the form, the four last columns of which are headed respectively as follows: "territorial tax," "county tax," "total tax," "remarks." Section 23 provides, among other things, that, after the board of equalization has performed its duties with reference to the assessments, the clerk of said board shall "carry out in a sep-
arate column, the totals of taxes composed of territorial, county, and other taxes to each person, etc."
It is clear, from the several provisions of the revenue act, that it is the duty of the board of commissioners to furnish the assessor with a book, or books, in which there is a column for each different kind of tax to be collected for that year that it is the intention and meaning of the law that all these columns shall be properly filled, and that the totals of taxes...
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