Western Ranches v. Custer County, Mont.

• Decision Date: 28 June 1898
• Citation: Western Ranches v. Custer County, Mont., 89 F. 577 (D. Mont. 1898)
• Parties: WESTERN RANCHES, Limited, v. CUSTER COUNTY, MONT.
• Court: U.S. District Court — District of Montana

89 F. 577

WESTERN RANCHES, Limited, v. CUSTER COUNTY, MONT.

United States Circuit Court, D. Montana.

June 28, 1898

Clayberg Corbett & Gunn and C. S. Middleton, for plaintiff.

T. J Porter and C. B. Nolan, for defendant.

KNOWLES District Judge.

The plaintiff is a foreign corporation organized under the laws of Great Britain and Ireland. This suit instituted by it against the county of Custer, Mont., has for its object the recovery of the sum of $7,374.35, money, it alleges, it unlawfully paid under protest to the treasurer of said county as taxes levied upon certain horses and cattle. Plaintiff sets forth that it did not have in said county the horses or cattle named in the supplemental assessment made by the assessor of said county on the 7th day of August, 1895. The allegations of the complaint are that a firm known as Clay &amp Forrest were the agents of plaintiff; that through their agent, Jaffray, all of the property of plaintiff in Custer county was listed and assessed; that after the assessor of said county, one John I. Zook, had for the year 1895 completed and verified his assessment roll for said county, and deposited the same with one Swerdfiger, the county clerk for said county, one John McAusland, as deputy assessor of said county, upon his own motion, and without notice to plaintiff or to its agents, Clay & Forrest, or to E. G. Jaffray, their representative, made out said supplementary assessment list upon information therein. Ten thousand head of cattle and three hundred head of horses were assessed to plaintiff. The horses were valued at $6,000, and the said cattle at $240,000. It is also alleged that the county commissioners of said county met as a board of equalization on the third Monday in July, 1895, and continued in session up to and including the 10th day of August, 1895, and that the county clerk of said county delivered to said board of equalization the assessment roll of said county for said year, in the manner and at the time provided by law; that the said board of equalization took no steps, as plaintiff verily believes, for the purpose of raising the assessment upon plaintiff's property, or for the purpose of making any further assessment or levy of taxes against or upon plaintiff's property.

The defendant made its amended answer to this complaint. In this answer defendant denies the allegations contained in subdivisions 14 and 15 of plaintiff's complaint. In the fifteenth subdivision were the allegations which set forth, in effect, that the said John McAusland, upon his own motion, made this supplemental assessment, and that the said board of equalization did not direct the making of said supplemental list. The answer then proceeds:

"And, in reference thereto, alleges that the board of county commissioners of Custer county met as a board of equalization, as required by the statutes of the state of Montana, on the 15th day of July, 1895, and remained in session continuously thereafter up to and including a part of the 24th day of July, 1895, at which time the said board adjourned to meet as a board of equalization on the 6th day of August, 1895. On the 22d day of July, 1895, the said board of equalization directed the said John McAusland, deputy assessor of said county of Custer, to assess the plaintiff for ten thousand head of beef cattle and for three hundred head of saddle horses, for the reason that the said property, and the whole thereof, had escaped assessment for the year 1895; and that, in pursuance of said order, and not otherwise, the said deputy assessor, on the 7th day of August, 1895, assessed this said plaintiff for ten thousand head of beef cattle, of the value of two hundred and forty thousand dollars, and three hundred head of saddle horses, of the value of six thousand dollars. That the said John McAusland, deputy assessor, as aforesaid, immediately after making the assessment list of the plaintiff as hereinbefore alleged, mailed a copy thereof to the last known post-office address of the said Clay & Forrest, to wit, 663 Rookery Building, Chicago, Illinois, with postage thereon prepaid. Admits that no other notice of the assessment of plaintiff as aforesaid was given to plaintiff, or to the said Clay & Forrest, other than the mailing of the copy of the assessment list as aforesaid."

Plaintiff sets forth in its complaint:

"That on the . . . day of June, 1896, plaintiff, through its agents, made application to the board of county commissioners of said county of Custer for an abatement of said alleged tax upon petition and affidavits duly verified; that said board of county commissioners absolutely refused to abate said alleged tax, or to grant plaintiff any relief in that behalf, but, on the contrary, directed the treasurer of said county to immediately proceed with the collection of said alleged tax; that the said treasurer of said county thereafter threatened to proceed with the collection of said alleged tax by seizure and sale of such property belonging to said plaintiff as might be found within the said county of Custer; that a large expense would be attendant upon such proceedings, and plaintiff's property would be greatly damaged and injured thereby; that, for the purpose of preventing the seizure and sale of the plaintiff's property upon such threatened collection of said alleged tax by said treasurer of said county, plaintiff involuntarily, and under written protest, paid the said alleged tax, claiming the same to be invalid and illegal, and notifying the said treasurer, at the time of said payment and protest, that plaintiff would institute suit against said county to recover back the amount so paid, with interest and costs."

The defendant, in its answer, admits all these last-named allegations of the complaint save the allegation that the said board of county commissioners directed the treasurer of said county to proceed with the collection of said tax.

Both parties made a motion for a judgment upon the pleadings,-- the plaintiff upon the ground that the defendant shows by its answer that the tax was illegal, and admits that the same was paid under a protest; claiming its illegality. The defendant asks judgment upon the ground that the complaint does not state a cause of action, in this: that it does not appear that the plaintiff ever presented his claim to the board of county commissioners of Custer county for allowance, as required, it is claimed, by the statute law of Montana before an action could be maintained upon the same. It will be seen that, while there is a general denial of the facts that the said assessor listed said property on his own motion, there is the statement that the listing of said property was done upon the order of the board of county commissioners of Custer county. It is not a question that seems to be well...