Village of Oakley v. Wilson

• Decision Date: 09 February 1931
• Docket Number: 5502
• Citation: 50 Idaho 334,296 P. 185
• Parties: VILLAGE OF OAKLEY, IN CASSIA COUNTY, STATE OF IDAHO, a Municipal Corporation, and BERNICE B. HOWELLS, Respondents, v. B. F. WILSON, as Auditor of Cassia County, State of Idaho, and LAWRENCE C. DUNN, as Tax Collector of Cassia County, State of Idaho, Appellants
• Court: Idaho Supreme Court

296 P. 185

50 Idaho 334

VILLAGE OF OAKLEY, IN CASSIA COUNTY, STATE OF IDAHO, a Municipal Corporation, and BERNICE B. HOWELLS, Respondents, v. B. F. WILSON, as Auditor of Cassia County, State of Idaho, and LAWRENCE C. DUNN, as Tax Collector of Cassia County, State of Idaho, Appellants

No. 5502

Supreme Court of Idaho

February 9, 1931

MUNICIPAL CORPORATIONS - DETACHMENT OF LANDS - TAXES-COMPUTATION OF-MANDAMUS - ANNUAL APPROPRIATION BILL - BOND ISSUE.

1. Computation and extension of village taxes upon general tax-roll is no part of levy, but purely ministerial duty.

2. Where public officer neglects to perform legal ministerial duty within time required by law, he may do so after prescribed time, unless statute prohibits, or it is too late to accomplish desired result.

3. Mandamus held to lie where action on bond of auditor and treasurer for failing to charge and compute taxes would be inadequate remedy.

4. Land detached from municipality is liable for all bonded indebtedness of municipality existent at time of judgment of detachment (C. S., secs. 4101, 4105, as amended by Laws 1921 chap. 111, secs. 1, 2, and sec. 4106).

5. Where language of statute is clear, construction is unnecessary.

6. Detachment of land from municipalities is purely legislative.

7. Legislature may make date of detachment of land from municipality time of judgment of detachment (C. S., secs 4101, 4105, as amended by Laws 1921, chap. 111, secs. 1, 2 and sec. 4106).

8. Where petition for detachment of land from municipality was filed before, but judgment of detachment was rendered after, issuance of bonds, lands were not detached when bonds were issued, and were taxable to pay bonds (C. S., secs. 4101, 4105, as amended by Laws 1921, chap. 111, secs. 1, 2, and sec. 4106).

9. Under statute providing that three-fourths of members of board of trustees might suspend rules, and statute providing majority of members constitutes quorum, three-fourths of majority present could suspend rules (C. S., secs. 3904, 4062).

10. Annual appropriation bill of municipality need not contain appropriation for payment of bond issue authorized by election (C. S., sec. 4053).

11. Ordinance specifying levy to pay bonds on all taxable property in "original Village of Oakley" held sufficiently explicit, "original" Oakley meaning Oakley as incorporated in 1904 rather than 1896 (Laws 1905, p. 330).

APPEAL from the District Court of the Eleventh Judicial District, for Cassia County. Hon. Wm. A. Babcock, Judge.

Petition for writ of mandamus. Judgment made and entered directing that a peremptory writ of mandate issue. Judgment affirmed.

Judgment affirmed. Costs awarded to respondents.

S. T. Lowe and C. W. Thomas, for Appellants.

Mandamus will not lie to compel the levy of special taxes after the time when it may be legally done. (Rice v. McClellan, 202 Cal. 650, 262 P. 1092; Branch v. Davis, 29 F. 888.)

The creation of a municipal corporation and the addition and detachment of lands to and from the same are legislative functions and can only be exercised by the legislature. (Lyon v. City of Payette, 38 Idaho 705, 224 P. 793; Territory v. Stewart, 1 Wash. 98, 23 P. 405, 8 L. R. A. 106; Young v. Salt Lake City, 24 Utah 321, 67 P. 1066; City of Hutchinson v. Leimbach, 68 Kan. 37, 104 Am. St. 384, 74 P. 598, 63 L. R. A. 630; 12 C. J., p. 856, sec. 352; 43 C. J., p. 119, sec. 77; p. 155, sec. 137.)

No legal or valid levies were made by the Village of Oakley for the years 1926, 1927 and 1928, or for either of said years, for

1. No appropriation bill or ordinance was passed by the Village of Oakley for any or either of said years, as required by law. (C. S., sec. 4053, as amended by chap. 129, 1921 Sess. Laws, p. 312, secs. 4056, 4118; 1927 Sess. Laws, p. 555, sec. 9, chap. 262.)

2. An appropriation bill is a condition precedent to a valid tax, by a municipality. (Graves v. Berry, 35 Idaho 498, 207 P. 718; Standrod v. Case, 24 Idaho 365, 133 P. 651; Pitts v. First Nat. Bank of Muskogee, 138 Okla. 284, 281 P. 133.)

In order to suspend the rules it is necessary that the required proportion of the members of the council shall actually vote for the suspension. (Horner v. Rowley, 51 Iowa 620, 621, 2 N.W. 436.)

Where a statute requires a vote of three-fourths of the members composing the council to dispense with the rules, a vote of three-fourths of the entire membership of council is necessary for that purpose. (Redmond v. Town of Sulphur, 32 Okla. 201, 120 P. 262; Griffin v. Messenger, 114 Iowa 99, 86 N.W. 219; Horner v. Rowley, 51 Iowa 620, 2 N.W. 436; 43 C. J. 530, sec. 822.)

Frank L. Stephan and Ray D. Agee, for Respondents.

The computation and extension of taxes on the real property assessment-roll by the auditor is purely a ministerial duty in the performance of which the auditor has no discretion, and mandamus will lie to compel its performance. (C. S., secs. 3227, 7254; Northern P. Ry. Co. v. Chapman, 29 Idaho 294, 158 P. 560; People v. Ames, 24 Colo. 422, 51 P. 426; Cooley on Taxation, 4th ed., page 2346, par. 1167; North Arkansas Highway Imp. Dist. No. 2 v. Rowland, 170 Ark. 1168, 282 S.W. 990.)

The failure of the auditor, a ministerial officer, to compute and extend taxes on the real property assessment-roll, at the time prescribed by statute, does not invalidate the tax or destroy the lien thereof, but such extension, being a part of the collection, may be made at any time thereafter.

Extending taxes on the real property assessment-roll, at the time prescribed by statute, does not invalidate the tax or destroy the lien thereof, but such extension, being a part of the collection, may be made at any time thereafter. (C. S. 3097, 3331, 4050; Walker v. Douglas, 2 Kan. App. 706, 43 P. 1143; People v. Ames, 24 Colo. 422, 51 P. 426; State v. Johnson, 80 Ore. 107, 156 P. 579; Hooker v. Bond, 118 Mich. 255, 76 N.W. 404; First Nat. Bank of Utica v. Waters, 7 F. 152, 19 Blatchf. 242; People's Water Co. v. Boromeo, 31 Cal.App. 270, 160 P. 574; State v. Phillips, 137 Mo. 259, 38 S.W. 931; 37 Cyc., p. 1060, sec. 5; Standrod v. Case, 24 Idaho 365, 133 P. 651; Waterhouse v. Clatsop County, 50 Ore. 176, 91 P. 1083; State v. Byrne, 32 Wash. 264, 73 P. 394.)

Taxes are never delinquent until after they are extended on the real property assessment-roll and an opportunity given to the taxpayer to pay them, and until this has been done, no penalties or interest can be added. (State v. Certain Lands in Redwood County, 40 Minn. 512, 41 N.W. 465, 42 N.W. 473; C. S., sec. 3234, as amended by chap. 32 of the 1927 Sess. Laws; C. S., sec. 3241, as amended by chap. 43 of the 1923 Sess. Laws).

Where agricultural lands are detached from a village, such lands are liable for all bonded indebtedness existing against said village at the date of the judgment detaching such lands, and our statutes provide for the collection of taxes thereon. (C. S. 4105, as amended by chap. 111 of the 1921 Sess. Laws, sec. 4106; Town of Aurora v. Watkins, 77 Colo. 234, 236 P. 556; Borough of Southmont v. Upper Yoder Tp., 284 Pa. 287, 131 A. 281; Town of Warwick v. Rhode Island Hospital Trust Co., 38 R. I. 517, 96 A. 508; Town of Cicero v. Green, 211 Ill. 241, 71 N.E. 884; State v. Goodgame, 91 Fla. 871, 47 A. L. R. 118, 108 So. 836; Adams v. Lambfish Lbr. Co., 114 Miss. 534, 75 So. 378; C. S., secs. 4118, 4119, 4120; Const., sec. 3, art. 8; sec. 16, art. 1.)

GIVENS, J. Lee, C. J., and Varian, J., concur. MCNAUGHTON, J., Dissenting.

OPINION

GIVENS, J.

January 6, 1925, the village trustees of Oakley initiated proceedings which resulted in the issuance on the 14th of March of the same year, of municipal bonds for the purchase of a waterworks system. January 28, 1925, appellants commenced under C. S., sec. 4101, amended Session Laws 1921, page 258, chapter 111, proceedings to detach their farm lands theretofore within the village boundaries, judgment of detachment being entered November 11th. The County Auditor did not charge on the tax-rolls against this property, which we will refer to as the detached property, the municipal tax levied to pay the interest, and possibly principal, of the bonds for the years 1926, 1927 and 1928. These items not being on the tax-rolls were therefore not collected by the county treasurer, and on June 21, 1929, the instant mandamus action was commenced by the village to compel the county treasurer to return the tax-rolls to the auditor, and the auditor to compute the taxes and extend the same upon the tax-rolls against the detached lands.

The computation and extension of village taxes upon the general tax-roll is no part of the levy, but a purely ministerial duty, a mere step in collection, and where a public officer is by law enjoined to perform a ministerial duty within a time certain and neglects to perform it, he may do so, after the expiration of the prescribed time, unless prohibited by some negative language in the statute, or too late to accomplish the desired result. (Standrod v. Case, 24 Idaho 365, at 375, 133 P. 651; Quirk v. Diana Mines Co., 34 Idaho 30, 198 P. 672; Hooker v. Bond, 118 Mich. 255, 76 N.W. 404; State v. Phillips, 137 Mo. 259, 38 S.W. 931; State v. McClain, 132 Ore. 561, 286 P. 590.) Remedy by action on an official bond would in this case be neither speedy nor adequate. (Babcock v. Goodrich, 47 Cal. 488; State v. Slusher, 117 Ore. 498, 58 A. L. R. 114, 244 P. 540, 542; 38 C. J. 564.) Hence contrary to appellants' contention, mandate will lie herein.

The second paragraph of section 4105 clearly states that the tract to be detached shall be detached on the date of judgment, and be freed from the government of the corporation from that date, and section 4106 must refer to that date when it says: "at the time of its (the land) separation...