Williams v. Harvey

• Decision Date: 30 December 1931
• Docket Number: 6861.
• Parties: WILLIAMS v. HARVEY et al.
• Court: Montana Supreme Court

6 P.2d 418

91 Mont. 168

WILLIAMS v. HARVEY et al.

No. 6861.

Supreme Court of Montana

December 30, 1931

Appeal from District Court, Judith Basin County; John C. Huntoon Judge.

Action by Charles F. Williams against Arthur T. Harvey, successor to C. O. Ray, as Treasurer of Judith Basin County, and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

L. A Foot, Atty. Gen., L. V. Ketter, Asst. Atty. Gen., and H. O Vralsted, Co. Atty., of Stanford, for appellants.

W. C. Husband, of Harlowton, and Frank Woody, of Helena, for respondent.

ANGSTMAN J.

This is an appeal from a judgment by default, entered in favor of plaintiff and against the defendants after defendants' general and special demurrer to the amended complaint was overruled.

The determinative question presented is whether the complaint states facts sufficient to constitute a cause of action.

The following facts appear from the amended complaint: Plaintiff owns certain inclosed lands in Judith Basin county customarily used by him a short period each summer on which to feed sheep. He also owns land in Wheatland county on which he maintains his residence. On the first Monday in March, 1927, he owned 1,600 head of sheep, then kept in Wheatland county. The sheep were assessed for the year 1927 by the officers of Wheatland county upon a statement furnished by plaintiff to the assessor listing the sheep in question. The taxes were timely paid by plaintiff in that county. Plaintiff had no personal property in Judith Basin county on the 1st day in March, 1927, but between the 10th of July and the 5th of September of that year he summer-fed his band of sheep on the Judith Basin county lands. At some time after July 10th the assessor of Judith Basin county assessed the sheep at a value of $17,500, but plaintiff received no notice of the assessment until in November, when he received his tax notice.

On November 28th plaintiff through his attorney requested the county treasurer of Judith Basin county to furnish a statement of the amount of the tax on his land in that county and of the amount of taxes on the personalty in order that he might pay the latter under protest. He then offered to pay all of the first installment provided the personal property tax be considered as paid under protest. The county treasurer refused to make the segregation, and notified plaintiff that, if the entire amount of the tax was paid before December 8th, the payment would be considered current and not delinquent. On December 7th plaintiff paid under protest the first half of the taxes on the land and sheep, $149.12 of which was for the tax on the sheep. On December 24th plaintiff filed with the board of county commissioners written application for the refund of this amount. No action having been taken by the board on the application, this suit was instituted within sixty days after the taxes were paid but more than sixty days after November 30, 1927.

Counsel for defendants make no contention that the sheep were properly taxable in Judith Basin county. Their argument is that, in order for a taxpayer to avail himself of the right to pay his taxes under protest and sue for their recovery under chapter 142, Laws of 1925, they must be paid before becoming delinquent, and that the law, section 1, chapter 96, Laws of 1923, fixes the date of delinquency which cannot be waived by the county officers, and that in consequence the payment of the tax by plaintiff after the time had elapsed within which he had the right to pay it under protest must be held to be a voluntary payment.

Whether this contention would be sustained where, as here, the failure to pay the tax before delinquency was due to the county treasurer's refusal to make the segregation of the personal property tax from the real estate tax, need not now be determined. Under the facts here, the property attempted to be taxed being tangible personal property situated on the first Monday in March in Wheatland county at the residence of the owner, the taxing officers of Judith Basin county were wholly without jurisdiction to levy an assessment against it. Peterson v. Granite County, 76 Mont. 214, 245 P. 946. The property had been regularly assessed in Wheatland county and the tax paid. The case falls squarely within the purview of section 2222, Revised Codes 1921, which provides: "Any taxes, per centum, and costs paid more than once or erroneously or illegally collected, may, by order of the board of county commissioners, be refunded by the county treasurer, and the state's portion of such tax, percentage, and costs must be refunded to the county, and the state auditor must draw his warrant therefor in favor of the county." We have held that this section has been repealed in so far as it relates to the right of recovery of taxes erroneously or illegally collected (First National Bank v. Sanders County, 85 Mont. 450, 279 P. 247; First National Bank of Lima v. Beaverhead County, 88 Mont. 577, 294 P. 956), and that the statutory remedies of injunction (section 2268), or payment under protest and suit to recover (sections 2269, 2272), are exclusive.

But the question now before us is whether that portion of section 2222 which provides for the refund of taxes "paid more than once" has been repealed. The answer must be in the negative. The sections which we held in the above cases worked a repeal of section 2222 for taxes erroneously or illegally collected make no mention of taxes "paid more than once." To the extent that section 2222 deals with taxes "paid more than once," it is a special statute unaffected by the general statutes repealing section 2222 in other respects. See Stadler v. City of Helena, 46 Mont. 128, 127 P. 454; Reagan v. Boyd, 59 Mont. 453, 197 P. 832; State ex rel. Daly v. Dryburgh, 62 Mont. 36, 203 P. 508; Walden v. Bitter Root Irr. District, 68 Mont. 281, 217 P. 646; Barth v. Ely, 85 Mont. 310, 278 P. 1002; Newton v. Weiler, 87 Mont. 164, 286 P. 133; In re Stevenson, 87 Mont. 486, 289 P. 566.

Since the board of county commissioners is alleged to have taken no action on the claim since its filing on December 24, 1927 until February 3, 1930, the date of the filing of the amended complaint, the remedy by court action was available to plaintiff. Otis v. City and County of San Francisco, 170 Cal. 98, 148 P. 933. The court properly overruled the demurrer to the...