Yellowstone Packing & Provision Co. v. Hays
| Decision Date | 28 June 1928 |
| Docket Number | 6282. |
| Parties | YELLOWSTONE PACKING & PROVISION CO. v. HAYS, County Treasurer. |
| Court | Montana Supreme Court |
Rehearing Denied July 12, 1928.
Appeal from District Court, Yellowstone County; Robert C. Stong Judge.
Suit by the Yellowstone Packing & Provision Company against George M Hays, as County Treasurer of Yellowstone County. Judgment dismissing the complaint, and plaintiff appeals. Affirmed.
Frank W. Mettler and John G. Brown, both of Helena, for appellant.
M. J Lamb, of Billings, for respondent.
This is a suit in equity instituted by the plaintiff to enjoin the county treasurer of Yellowstone county from issuing a tax deed upon the sale of its property for delinquent taxes; to oblige the treasurer to accept a less amount than was levied and delinquent, in compromise and discharge of such taxes and to compel the issuance of a certificate of redemption of plaintiff's property from sale. Upon issues joined by answer to the complaint, and a reply thereto, the cause was regularly brought on for trial before the court without a jury. After the conclusion of all of the evidence introduced by the parties, the court sustained the defendant's motion to dismiss the plaintiff's complaint. Judgment was entered accordingly, and the plaintiff has appealed.
The several assignments of error present but one question determinative of the controversy, viz., Did the court err in so entering judgment?
It appears that the plaintiff's property, both real and personal, while in the possession and ownership of its predecessor in interest, had become delinquent for taxes levied thereon for the years 1921, 1922, 1923, and 1924, amounting in the aggregate, with penalties, interest, and costs, to $18,125.52. On August 11, 1925, the board of county commissioners of Yellowstone county attempted by resolution, regularly passed and adopted, to compromise the amount of such delinquent taxes upon payment by the plaintiff of the sum of $6,777.67, and ordered the county treasurer to receive and accept such sum in full settlement and discharge of the entire amount shown to be due. The county treasurer refused to obey the order, taking the position that it was in excess of the board's jurisdiction. Theretofore the real estate had been sold for delinquent taxes, and the county treasurer gave notice that on October 15, 1926, he would issue a tax deed, resulting in the institution of this action on October 14, 1926.
There is no contention made by the plaintiff that any actual fraud was perpetrated by the taxing officers, or that an erroneous principle was applied in making the assessment and levying the tax. No objection was made to the assessor respecting the valuations fixed, nor to the county or state board of equalization, and the taxes so levied for the years 1921, 1922, 1923, and 1924 have not been paid, although taxes levied based on a similar assessment for the years 1918, 1919, and 1920 were paid without question.
J. B. Henderson was an officer of the Yellowstone Packing Company, the corporation which owned the property during the period of time from 1918 to 1924, inclusive, and is now the president of its successor in interest, the Yellowstone Packing & Provision Company. In connection with the reorganization of the business of the Yellowstone Packing Company, after its failure, he, as an officer and representative of the Yellowstone Packing & Provision Company, which latter corporation was organized to take over the property, discovered for the first time that the property was assessed at a higher valuation than other like property in the vicinity owned by other parties, resulting in the plaintiff applying to the board of county commissioners for a compromise of the delinquent taxes and the board's order above noted.
Was the order of the board of county commissioners valid? Plaintiff's entire argument is predicated upon the validity of the board's order, based upon the power of the board to compromise delinquent taxes on property under the provisions of section 2222, Revised Codes 1921, which reads as follows:
"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."
In construing this statute, this court has said that:
"Taxes paid more than once, or erroneously or illegally collected, may be refunded; but these provisions and others of like import are intended to secure the collection of lawful revenue and to protect the owner whose property is made to bear more than its just proportion of the burden of taxation, and were not enacted to secure immunity from taxation to any one." Anaconda Mining Co. v. Ravalli County, 52 Mont. 422, 158 P. 682.
The language employed in the statute appears to be plain and without any ambiguity; therefore it must be construed and applied in accordance with its apparent meaning. It speaks for itself, and by it the board of county commissioners of a county is permitted to refund only such taxes as have been "paid more that once, or erroneously or illegally collected." It should be manifest that the board is not empowered to remit taxes which have not been paid, and that no attempt was thereby made to clothe the board with authority to compromise delinquent taxes. Furthermore, no such authority could be conferred on the board by the lawmakers in view of the restrictions contained in section 39 of article 5 of our Constitution. It is there provided that:
"No obligation or liability of any person, association or corporation, held or owned by the state, or any municipal corporation therein, shall ever be exchanged, transferred, remitted, released or postponed, or in any way diminished by the legislative assembly; nor shall such liability or obligation be extinguished, except by the payment thereof in the proper treasury."
The Legislature having no such power, it is plain that it could not by enactment confer the same on boards of county commissioners. Sanderson v. Bateman, 78 Mont. 235, 253 P. 1100.
However excessive valuations for taxation may be reduced in advance of payment of the taxes imposed, by the county board of equalization, as hereinabove noted. A county is a political subdivision of the state for governmental purposes, and as such is subject to legislative control, except in so far as restricted by the Constitution in express terms or by necessary implication. Hersey v. Neilson, 47 Mont. 132, 131 P. 30, Ann. Cas. 1914C, 963; Edwards v. Lewis & Clark County, 53 Mont. 359, 165 P. 297. Aside from powers expressly conferred by statute, and those of necessity implied, it...
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