Western Ranches v. Custer County

• Decision Date: 01 June 1903
• Citation: 72 P. 659,28 Mont. 278
• Parties: WESTERN RANCHES, Limited, v. CUSTER COUNTY.
• Court: Montana Supreme Court

72 P. 659

28 Mont. 278

WESTERN RANCHES, Limited, v. CUSTER COUNTY.

Supreme Court of Montana

June 1, 1903

Commissioners' Opinion. Appeal from District Court, Custer County; C. H Loud, Judge.

Action by the Western Ranches, Limited, against the county of Custer. From a judgment for defendant, entered on sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

This action was commenced by plaintiff to recover of the defendant the sum of $975.63 for taxes paid under protest. After stating the corporate existence of plaintiff and defendant it is alleged in the amended complaint that the only property the plaintiff owned, claimed, controlled, managed, or possessed at 12 o'clock m. on the first Monday of March 1896, or at any other time during said year, which was situated in the county of Custer or elsewhere in the state of Montana, consisted of 200 head of horses and 1,000 head of stock cattle; that said cattle, on the 1st day of March, and at all times during the said year, were not worth or of a cash value to exceed $17 per head, and that during all such times the horses were not worth or of a cash value to exceed $15 per head; that between the first Monday of March, 1896 and the second Monday in July, 1896, the assessor assessed to the plaintiff 1,000 head of stock cattle at a valuation of $17 per head, but that the commissioners of Custer County sitting as a board of equalization, on the 20th day of July, 1896, "without notifying this plaintiff, and without this plaintiff being present or having any knowledge thereof, and without giving this plaintiff an opportunity to be heard, and without jurisdiction, or right, or authority so to do, and without any investigation or hearing any evidence as to the property of plaintiff, determined that the assessment to this plaintiff of 1,000 head of stock cattle as aforesaid was incorrect and incomplete, and thereupon increased said assessment, and directed the said assessor to assess to this plaintiff, in addition to the assessment theretofore made, 300 head of beef cattle at a valuation of $25 per head; 4,000 head of stock cattle at a valuation of $17 per head; 300 saddle and work horses at a valuation of $20 per head; ranch improvements at a valuation of $100; wagons and harness at a valuation of $150; making a total of $149,350, which, together with the previous assessment, made a total of $166,350, which assessment the assessor thereupon made pursuant to and in accordance with said direction." On the 6th day of August, 1896, the plaintiff appeared before the board of equalization, and made written application for a reduction of the amount of property assessed, and for a reduction of the valuation placed upon the horses, but the board refused to reduce or correct the assessment, except to the extent of changing and reducing the number of head of stock cattle to 2,750, and the number of beef cattle to 1,000, and the number of saddle horses to 200, but entirely abated and canceled the assessment on account of ranch improvements, wagons, and harness. For the purpose of preventing the seizure and sale of plaintiff's property, plaintiff, to satisfy the tax which it claimed was illegal, upon the demand of the treasurer of the county, paid the same under written protest upon the 7th day of December, 1896, to the extent of $1,325.63, but, claiming at the time that the sum of $975.63 was an invalid and illegal tax, notified the treasurer that it would institute and action against the county to recover the latter sum, with interest thereon, and costs. The defendant demurred to this complaint on the ground that it does not state facts sufficient to constitute a cause of action. This demurrer was sustained, and judgment entered thereon dismissing the complaint, and for costs, from which plaintiff appeals.

C. R. Middleton and Clayberg & Gunn, for appellant.

Jas. Donovan, Atty. Gen., for respondent.

CALLAWAY, C. (after stating the facts).

1. In causing plaintiff's assessment to be increased, the board of county commissioners, sitting as a board of equalization, assumed to act under section 3789 of the Political Code, which reads as follows: "During the session of the board of county commissioners it may direct the assessor to assess any taxable property that has escaped assessment, or to add to the amount, number or quantity of property when a false or incomplete list has been rendered, and to make and enter new assessments (at the same time canceling previous entries) when any assessment made by him is deemed by the board so incomplete as to render doubtful the collection of the tax; but the clerk must notify all persons interested, by letter deposited in the postoffice, postpaid, and addressed to the person interested, at least ten days before action is taken, of the day fixed when the matter will be investigated." It is patent that the board had no jurisdiction to increase the plaintiff's assessment without first giving the 10-days notice provided by statute. In Western Ranches v. Custer County (C. C.) 89 F. 577, Judge Knowles, in passing upon the above-quoted section, said: "Did the failure to give the notice before the listing of the property invalidate the tax? I think it did. The notice required by this section was for the protection of the taxpayer, and intended to give him a hearing before the listing of his property in a supplemental list, and was jurisdictional. Without such notice the board of equalization had no right to order the assessor to make the supplemental list. Cooley, Tax'n (2d Ed.) 362-366; French v. Edwards, 13 Wall. 506 ; Powder River Cattle Co. v. Board of Commissioners of Custer Co. (C. C.) 45 F. 323; Dykes v. Mortgage Co. (Kan. App.) 43 P. 268." And see Commissioners v. New York Mining Co. (Md.) 25 A. 864; Myers v. Commissioners (Md.) 35 A. 144, 34 L. R. A. 309, 55 Am. St. Rep. 349; Commissioners v. Lang, 8 Kan. 284; Topeka Water Supply Co. v. Roberts (Kan. Sup.) 25 P. 855.

The failure to give plaintiff the required notice having rendered the tax illegal because the board had acquired no jurisdiction to act with reference thereto, the fact that the plaintiff voluntarily appeared on August 8th, and asked a reduction of its assessment, which was partially granted, did not obviate or waive the want of jurisdiction in the board's original action. This question was not raised in Cosier v. McMillan, 22 Mont. 484, 56 P. 965, cited by defendant. Plaintiff was seeking a reduction of its assessment, and therefore properly appeared before the board to ask the same. Barrett v. Shannon, 19 Mont. 397, 48 P. 746.

But, without reference to the illegal action of the board, it appears from the complaint that the plaintiff was assessed for a large amount of property of which it was not the owner. It is fundamental that a tax cannot be lawfully levied against a person for property which he does not own.

2. The defendant contends, however, that section 4024, Pol. Code which provides that "in all cases of levy of taxes, licenses or other demands for public revenue, which is deemed unlawful by the party whose property is thus taxed or from whom such tax or license is demanded...