Wibaux Improvement Co. v. Breitenfeldt

• Decision Date: 07 May 1923
• Docket Number: 5194.
• Citation: 215 P. 222,67 Mont. 206
• Parties: WIBAUX IMPROVEMENT CO. v. BREITENFELDT, COUNTY TREASURER.
• Court: Montana Supreme Court

215 P. 222

67 Mont. 206

WIBAUX IMPROVEMENT CO. v. BREITENFELDT, COUNTY TREASURER.

No. 5194.

Supreme Court of Montana

May 7, 1923

Appeal from District Court, Wibaux County; Frank P. Leiper, Judge.

Action for injunction by the Wibaux Improvement Company against W A. Breitenfeldt, as Treasurer of the County of Wibaux. Judgment for plaintiff, and defendant appeals. Affirmed.

Elmer W. Cowee, of Wibaux, and Hurley & O'Neil, of Glendive for appellant.

Stephen J. Leahy, of Wibaux, for respondent.

HOLLOWAY J.

At 12 o'clock noon on the first Monday of March, 1921, the Wibaux Improvement Company owned property in the town of Wibaux, consisting of town lots with the improvements. This property was duly assessed for the year 1921 and a valuation of $32,000, in round numbers, placed thereon. In July, 1921 the town council of Wilbaux passed a resolution assuming to levy a tax of 20 mills on each dollar of valuation of the taxable property within the town for general municipal purposes. The resolution was certified to the county clerk who extended the tax on the assessment roll, computing it upon 30 per cent. of the assessed value of the property first mentioned. The town tax upon that property as thus computed amounted to $192, and this amount was demanded by the county treasurer as collector of taxes for the town. The tax was paid under protest, and this action was commenced to recover $96, which it was alleged was unlawfully exacted. A general demurrer to the complaint was interposed and overruled, and defendant, declining to plead further, suffered judgment to be entered against him and appealed.

Section 5194, Revised Codes of 1921, provides in effect that in every town of this state the amount of taxes to be levied for general municipal purposes shall not exceed 10 mills on the assessed value of the taxable property in the town. Section 5195 provides that an additional levy of 5 mills may be imposed when authorized by a vote of the taxpaying freeholders of the town, but it is conceded that such authority was not given in this instance. Counsel for defendant contend that under section 5194 the town of Wibaux was entitled to collect a tax of 10 mills on $32,000, the assessed value of plaintiff's property, and since the tax had to be computed on only 30 per cent. of the assessed value under chapter 51, Laws of 1919 (sections 1999 and 2000, Rev. Codes of 1921), it was permissible for the town to increase the rate proportionately in order to accomplish that purpose. As a mere matter of policy, the argument might be considered plausible if addressed to the legislative assembly, but the question before this court is one of municipal power and not one of public policy. There is not any principle of law more firmly established than this: That a city or town in this state has only such authority as is conferred by law, either in express terms or by necessary implication, and whenever there is a reasonable doubt as to the existence of a particular power the doubt will be resolved against the municipality and the right to exercise the power will be withheld. Sharkey v. City of Butte, 52 Mont. 16, 155 P. 266.

In conformity with the provisions of section 4, art. 12, of our Constitution, the Legislature by section 5194 conferred upon the cities and towns of this state authority to levy and collect taxes for municipal purposes, but it granted the authority in such terms and under such restrictions and with such limitations as it chose to select. It fixed 10 mills as the limit beyond which a town may not go in imposing taxes for general municipal purposes except in response to a favorable vote of the qualified electors as indicated in section 5195. But it is argued that in limiting the permissible rate to 10 mills the Legislature also declared that the basis for computing taxes at that rate should be the assessed value of the taxable property, hence by imposing taxes at the rate of 20 mills upon 30 per cent. of the assessed value of plaintiff's property the town did not exceed 10 mills upon the full amount of its assessed value. The argument is ingenious, but not persuasive. Section 5194 was enacted many years ago, and from the date of its enactment until 1919 there was but one standard by which the assessment and taxation of property could be measured. All taxes were computed upon the assessed value of property which was presumed to be the full cash value, though in fact it was not. It was notorious that property generally was assessed at much less than its full cash value; but notwithstanding this fact the assessed value as determined by the assessors and boards of equalization became the value fixed by law as the basis upon which taxes were to be computed. The disparity in the valuation of different classes of property or of the same class in different counties gave rise to a demand for a new system under which a more equitable distribution of the burden of taxation might be had, and in response to that demand the Legislature enacted chapter 51, Laws of 1919 (sections 1999, 2000, Rev. Codes of 1921). The purpose...