*1 juror Alonzo Smith to the is related Carl Smith Mrs. (brother) of her husband. a kin affinity he is blood because by affinity be- Likewise, McBride Carl is related to Smith (Carl Smith’s) (brother) of his kin McBride is blood cause goes- only relationship affinity However, wife. person’s spouse spouse person’s or to the kin of "blood relationships Therefore, exist neither of these kin. blood relationship McBride there is no Alonzo Smith and between by affinity them. between TAX LINE et v. STATE COMMISSION CAR al
CRYSTAL
al.
et
984.)
(174 P. 2d
1946.
6916. Decided November
No.
*3
738;
Taxation,
taxa-
61 C. J.
This is Judg- Declaratory brought by the car under our Act, seq., ment Utah et Code 104-64-1 determine right respondents and defendants herein to tax Although plaintiffs separate their all cars. had causes action, joined they multiplicity in one action to avoid a suits, questions since involved were relief asked the same each instance. plaintiffs
All of the are non-residents and none of their permanently cars were ever within the state Utah. sought The tax commission had to collect taxes assessed belonging plaintiffs. since 1930 on cars to the various These tank, refrigerator, wine, poultry cars consisted of and beer cars which were leased' com- them to different railroad panies throughout plaintiffs the United States. The did operate these cars and retained no control them over while they being transport were used commod- railroads company using The ities. railroad the cars would route them through whatever states it desired. The сars not leased were in units but left on tracks convenient for the users and when particular type a railroad needed a of car it would take pay plaintiffs or more as needed and for the on a use mileage basis. plaintiffs pay
The against had failed to the taxes assessed their cars since 1930 and after numerous be- conferences representatives tween their commission compromise sought a which settlement of the taxes to be discussed, declaratory judgment collected was suit brought. brought naming was After this action was the in- dividual tax as well commissioners as tax commission defendants, sought defendants collect the taxes attaching belonging plaintiffs a car to one of the Utah, whereupon temporary was found in state of in- against junction was issued the tax commission to restrain attaching plaintiffs’ pending from it cars the outcome this suit. declaratory judgment plaintiffs alleged
In their suit authority the tax no commission had under Title A. U. C. to tax their cars it and if was found that it power, have this did nevertheless that the manner in which
431 in cars were valued and assessed was contravention these of the of the the United States Constitution and Constitution They pleaded also the tax commission State of Utah. enforcing payment any from the of taxes due was barred years prior to the of more than three commencement this 1937, 138, provisions Chap. of the of action under Laws 1, 104-2-24.10, A. 1943. Sec. now Sec. U. C. against points plaintiffs court found on all
After trial the injunction. temporary and dissolved assign error the there court’s Plaintiffs authority levying by statutory for the and assessment was belonging to the American Car the tax commission taxes Eefrigerator year 1932, Line Corp. Northwestern for the Refrigerator year Line 1933 and Western Co. Co. for 1932, They years 1931, 1933. contend that from for the and 22, 1933, 24, was June there no statute 1931 until March against companies. levying authorizing car of taxes 1917, 5873, argue They of Utah ex- that whereas Sec. Laws companies property to which was pressly be car included taxing board, by of that amendment the state assessed 53, 1931, Chap. not include car did the Laws section Utah, 5873, companies. The Sec. Laws amendment Chap. 53, 1931, appears reads: in Laws of Utah as it public operated property and owned utilities State “All companies operated irrigating power, in more pipe line, canal * * * State, county must be assessed in the than provided.” hereinafter commission as provides that: Chap. Laws Utah 5923 in assess, Monday May the tax commission “By shall the first * * * * * * required law to assessed it property all apportion of all assessment total must the tax commission through companies or into persons the several counties or of such operates, person companies extends or property of such ** * * * *, as follows: * * *.” car The “4. legislative purely function unless power to tax is The prop- provided for the taxation legislature has levy attempt tax on and assess erty 432 Co., Cir., ;
void. See Tamble Pullman 6 30 207 F. v. City Stemple, New Orleans U. S. S. *6 110, 174; Finding 44 Ct. L. Ed. Western Leather & Commission, 227, Co. Tax 87 Utah 48 P. A State 2d 526. reading mere of the amendment to 5873 in the Sec. Laws of 1931 property companies discloses that the of car is not in property taxed, unless, in cluded the list of to be as the tax argues, commission it property included the term owned by “public utilities.” The statute itself does not define “public utilities,” Jur., page but as is stated 43 Am. 571: “* ** ‘public utility’ implies public the term use and service public; indeed, principal to the and determinative chаracteristic public utility, to, serve, of a is that of service readiness to an in- public (or portion public such) legal definite has right to demand and receive its services or commodities. The term precludes private the idea of service which is in its nature and is not * * by public to be obtained *.” clearly property public utility.
This was not owned companies purport The car involved in this suit do not They public. supply serve the cars under contract rail companies dealings public road and have no with the public right any as such and has no to demand apparent they service from It them. therefore that public are Refining not utilities. In Sinclair v. State Tax Co. al., 340, 663, Commission et 102 Utah 130 P. 2d in inter preting 80-5-3, Sec. R. S. U. which amended Sec. companies Laws of Utah this court said that car are public utilities. It follows therefore that the court erred years that the taxes for to 1933 assessed against companies the car we have named above were valid. statutory
Plaintiff further contends that no there is authority any against of the taxes levied and assessed companies 1933, although 80-5-3, of the car after Sec. property R. U. S. authorized the com car panies commission, to be assessed the tax because only provides that section such an assessment property transportation companies, they “the of car when operated They county.” are as a unit in more than one con provision requires company tend that the same property operate which owns the also must it aas unit in county. 86-5-3, provides more than one that: “Pipelines, power plants, irrigation works, lines and canals and bridges ferries, property transporation car and com- paniеs, they operated county.” when are unit as a more than one must be assessed the tax commission. It is contended that legislature phrase property meant “the of car and transportation companies, they operated when are unit” as a (italics ours), companies, of car when companies operated such car are as unit in more than county shall be assessed the tax commission. The italicized “they” referring word to car and not to the companies. question This raises require whether the intended to the tax commis- sion companies only to assess the of car when such *7 property operated by company itself, was car did but require property not such to be so assessed when such property operated by person, corpor- was some other firm or proposed require- atiоn. Under construction there is no property operated only require- ment that the at all. The company ment under such construction that the car which is property operated owns the must be unit in than as more county. require one This would the tax to commission only property stationary property, assess not movable but buildings, real property such as estate and which was the company being operated of car which such was in as unit county. Obviously legislative one more than not was very legislature intent. It would also be unusual for the to require by the assessment the tax commission where the property operated by company and was owned car but require by it to be so assessed when it owned a car was operated by company company and a railroad under a lease county. requiring as a in more than one unit Thе of basis by property assessment the tax commission is the fact that operated being county. a unit more is as than one Where county, county it is stationed one take assessor can it, require and is no care of there occasion to the assessment are con- above we In view tax commission. only “they” to not refer word does italicized that the vinced from the companies, rather both transportation but car and section, punctuation and content of the standpoint viz., therein, pipelines, property enumerated to the refers bridges irrigation works, lines, plants, and power and canals transportation car and ferries, and the more operated a unit in as are companies. When such by the tax commis- county they are to be assessed than one intended construction such sion. Under property of сar assess commission should the tax county re- in more than one operated a unit as which is company which owned such gardless the car of whether being operated by some operated it or it is property also operates company immaterial which company. It is other one being operated in more than a unit long as it is it as county.
n What transportation companies property of car and is the county operated more than one unit in as a which must be subject the State Tax Com assessment to order to be rolling Obviously That is stock. the answer mission? transportation car and the kind is ordinarily move from can and does companies which happen con to county. have county But what would more rolling unit as a operation stock of such stitute rolling car owned county? If the stock than company a railroad operated company company case, and such in this company a lease as under part operates same as operates the which county an operates system from one a railroad *8 county part one as a one other, in more than that in being operated unit as a property system, then such county phrase in the that is used' statute as one more than by Tax Com the State property be assessed must and such property though all of the true even would be This mission. exclusively operated company was belonging car to such period during county only the entire one limits of the within words, company which if the In other by tax. the covered operates belonging rolling the company stock the to car operates property part such system as a of a railroad which county, рroperty more covers than one must be assessed hand, the State Tax On Commission. the other if the rolling company operated by stock of a car was a railroad system operation- only county, which limited in was its property operated then such would not be in a unit more county county than one and should' be the assessed as- county. sessor time
At this we wish to call attention to a statement made Refining this court Sinclair Co. v. Tax State Commis sion, supra 664], 130 P. [102 Utah 2d in which de fining companies” “car we said: company’ “It is evident one, therefore that ‘car means not a railroad company operates which owns and cars used and moved on and over railways.” (Emphasis ours.) rails and tracks of railroads or street
If one were to fail take into consideration the facts argued that case it could be this court has held that comрany” “car operates be must one which both owns and property. However, case, its company in that did both operate property sought own and and the taxed question company whether in order to be considered company” provisions a “car under the of the act must both operate own and its was not before court. 80-5-8, Plaintiffs further contend that even if Sec. R. S. impose liability against property, U. does a tax their rolling nevertheless it is ineffective because as to stock legislature provide average must formula during taxing period number of cars the state can be give taxing ascertained and thus a situs for purposes, provide and also that must conformity formula with valuation such cars in Constitution, XIII, Utah the mandate of Art. which, applicable here, so much as is reads: Legislature provide by equal “The law a rate of shall uniform tangible State, and taxation on all in the accord- assessment money, prescribe ing regulations to its value in and shall law such *9 n 436 just property, valuation for taxation of such
as shall secure * * ours.) (Italics argue provision we have the constitutional Plaintiffs legislature places exclusively in the italicized above power provide to ascertain the valuation a formula purposes provide migratory property and to for tax habitually average number of cars formula to determine the present as to create a situs for taxation within the state so purposes. The these contentions. situs
We cannot subscribe purposes property personal for taxation is established taxing constructive, jurisdic presence, within the actual jurisdic protection of said tion where it receives the 2, Ed., Cooley Taxation, Vol. Sec. on 4th tion. See Although may, wishes, create if it 438. property purposes, personal for taxation for a situs property purposes personal taxation does not situs of legislative depend upon action. very
Rolling personal but because of the stock is constantly changing the individual items are nature of its use any particular jurisdiction ordinarily do not remain in enough long situs for the individual to create taxable yet general purposes, where item for being always present used within are there taxing jurisdiction number of these items situs a certain purposes, and the value taxation such is established average by determining at is arrived present in the state. See which are items number Refriger Union Ed., 2, 454; Taxation, Vol. Cooley 4th on Lynch, 177 U. 149, 631, ator Transit Co. v. 20 44 L. S. Ct. S. Hall, Refrigerator Transit Co. American v. 174 U. 708; Ed. Palace Pullman’s Car Co. 899; 599, 43 L. Ed. 70, 19 Ct. S. S. Pennsylvania, 141 U. 18, 11 S. Ct. S. v. Commonwealth Covington Pullman City 121 613; 876, 35 L. Ed. Co. & P. R. v. Lesueur Co. Atlantic Co. 116; Ky. 89 W. S. Refrig Union 244; Treas., 2 157, 1 R. A. P. L. 19 Ariz.
437 Lynch, erator Transit Co. v. 18 Utah L. P. 790. R. A. *10 provision legislature Our constitutional that shall provide by equal law a uniform and rate of on taxation all
tangible property prescribe by regula and “shall law such just as shall property” tions such secure a valuation taxation for legislature does not mean that the prescribe must the formula which must be used arriving commission in at its assessments. The property ascertainment of the amount of to be taxed and properly its value is an administrative function. It suf legislature provides property if the ficient shall be taxed may and fixes the rate which at it taxed. See State V. Fargo 505, 836, Co., Wells Nev. & 38 150 P. wherein the intangible property sought contention was made that the subject legislature be taxed was not to taxation because adopt regulation governing failed to had rule determining property. manner value of such Nevada provision XIII, had constitutional similar to Art. 2 Secs. 3, and Utah State Constitution. The Nevada court in find against
ing quoting said, this contention from the case of Co., 47, R. State v. Central Pac. 10.Nev. 63: “ principal property purposes of valuation of ‘No for of taxation is prescribed by the laws of state. The define statutes the different species property, provide every species that shall be assessed ascertaining actual cash But as to the at its value. mode of the cash subsidiary principles our value law is silent. No of valuation are laid guide making down to the owner his statements those cases required values; specify equally he where assessor is left making unrestricted his estimates. It follows owners and guided general principles every- must be those assessors property, statutory independently determine the vаluation of where ” rules.’ Light Judson, also Electric Power Commercial & Co.v.
See Anderson, 78; 56 57 L. R. A. State P. Wash. 746. 63 N. W. 90 Wis. legislature provided prop- Our that all taxable has 80¡-
erty value, at its full shall be assessed cash Sec, 5-1, (5) R. S. U. which is defined 80-3-1 meaning «* * * pay- the amount at which the would be taken in just debtor”; of a ment debt due from a solvent provided it has the state tax commission assess Sec, companies, 80-5-3; provided of car it has levies, ; pro- uniform 80-9-1 rates of Secs. to 80-9-9 it has equalization prop- vided for the of the valuation of taxable erty, provisions carry Sec. 80-5-47. These are sufficient out the constitutional mandate that shall prescribe by regulations just law such as will secure a valu- property. provisions ation taxation of If these are fol- equal all lowed will bear an burden of taxation in proportion value. to its *11 declaratory judgment in their
Plaintiffs suit a had asked the court to find that if thе assessments on their cars valid, neverthless, by were that the commission was limited provisions 104-2-24.10, 1943, of Sec. U. C. A. which provides liability that an action a created the statutes years. of this shall commenced in three state be The court limitations, held that the state was not limited a statute of plaintiffs cite this as error. There can no if the doubt tax commission had commenced an action to collect these 104- taxes that Sec. applied, 104-2-31, 2-24.10 would have since Sec. U. C. A. 1943 provides that: prescribed apply “The in. limitations this article shall to actions brought in the name of or for the benefit of the state in. the same by private parties.”
manner as actions provisions apply This court has held that these to taxes. Estate, 999; In re 408, Attorney See Swan’s 95 Utah 79 P. 2d Pomeroy, 426, 1277, General Utah 93 v. Utah 73 P. 2d 726; Spanish 114 A. L. R. Tax State Commission v. Fork However, City, 177, 100 575, 131 A. Utah P. 2d L. R. 816. purpose sale, unless the seizure of car for the under 80-10-29, 1943, by U. A. commission was section C. tax 104-2-24.10, term “an action” as that is used in section attempting brought not nor it to main commission has tain action in this and it an case is not barred sec Reich, 2 tion. In Crismon Utah held that we express statutory provision absence of an to that effect the bring may county assessor an action to collect taxes not but summary proceedings provided is limited to the statute purpose. for that It immaterial here whether or may bring separate tax commission action collect this problem proceeding to Our is whether or not the seize tax. plaintiffs one of the of one of the and sell cars attempting so, constitutes an action. If then commission is proceeding section is barred 104-2-24.10—otherwise it is not barred. 104-2-47, U. C. A. defines the word “action” as including chapter on “Limitation of Actions” “as
usеd in proceeding proceeding special of a civil nature.” Such by our but from the cases cited defined statutes is not Phrases, Ed., Perm. commenc- in Words and Vol. proceedings ing page apparently applies to it rights justice quasi-judicial in which the or bodies courts determined, proceedings parties are but which of the thereto proceedings known as common law actions were not summary 80-10-29, proceedings do equity. The under Sec. parties, rights or those not determine liabilities Therefore, proceedings. in the assessment were determined proceedings. does not bar these Sec. 104-2-24.10 1943, provides 80-10-1, U. A. *12 that: C. Section * * against judgment person, “Every the the of a tax has effect against person, money judgment without the aid of A the docketing county in the an and without the same execution docket, against judgment a lien the real is not еither clerk’s judgment personal property For of of debtor. effect Court, 104-30-15, City judgments in in the district court see Court, 20-4-20, 104-75-30, in Court, in Justice Federal Sec. 440
52-5-1,
general
A. 1943. To
U. C.
the effect that a
tax levied
against personal property
does
create a lien
on either
personal property
assessed or other
of the owner
Taylor
Company
County,
See
Motor
thereof.
Car
Lake
Salt
80-10-2,
Utah
of the owner “Every tax thereof, upon personal property * [*] is a lien upon the real clearly purpose quoted
This indicates that the of above provision 80-10-1, of section was not to a lien create on personal real of property. the owner of the assessed 80-10-1, chapter Sec! is the first section “Collec- on purpose undoubtedly tion Taxes.” Its had to do with means, making manner and time of such collection. It ex- pressly provided every judgment tax has the effect of a аgainst person, every which indicated that tax should be means, collected the same in the same manner and within judgment, same expressly time as unless otherwise provided. chapter expressly provides This for collection of against personal property, summary proceeding in a through personal property seizure and sale delinquent. by county For assessor, collection 80- see Sec. 10-5, by county treasurer, 80-10-47, see Sec. tax com- 80-10-29, mission see Sec. C.U. A. 1943. 104-37-1, provides U. C. A. for the issuance of judgment
an execution for the enforcement of a at time eight years entry, 104-37-6, within from U. section C. provides judgment A. for the execution aof 1943> expiration eight year certain after the cases period. Young Burton, In dale v. 102 Utah 1053, 1054, 2dP. we held that under these sections that eight years proceeding within “some form of in execution judgment might instituted, of a for сollection” but judgment recovery money pro of a for the case execution, ceeding may expiration not be had after the tax, period. being recovery money, This for the has judgment purpose, summary the effect of for that *13 proceedings provided for its collection is a form of execution enforcement, for its authority therefore under the above proceeding may not be expiration instituted after the year eight period from the time the Tax is Commision empowered to tax, enforce collection of 30th, to wit: Nov. provided 80-10-25, as in sections 26 and U. C. A. 1943.
Plaintiffs
further contend that
the assessments of their
per
cars were fraudulent
se because in their
no
valuation
account
ages
given
was taken
their
diverse
but all were
per
the same valuation
impressed
car. We are not
argument
with
plaintiffs
this
in view of thе fact that
they
at no time before
pro
commenced this action
placed
tested
cars,
provided
the valuation
on their
as
80-7-12,
C. A.
plaintiffs
U.
1943. Had
of the
opinion
being
been of the
that their cars were
over-valuated
they
opportunity
an
apply
had
under this
to
section
allowed,
commission within the time
to have the valuations
they
hearing
corrected and
been
would have
entitled
ato
they
opinion
matter.
did
do.
This
In our
the fact
ages
cars
diverse
were assessed
value
at
same
is not
which
sufficient evidence from
it must be inferred
arbitrarily
fraudulently
the assessment was
either
made. This court
committed to the view that
is
the ab
part
assessor,
sence of fraud or
faith on the
bad
his
changed by
the Board of
valuation
conclusive unless
Equalization
taxpayer,
application
on
this
and that
provided
taxpayer
remedy
had
willfulness, arbitrariness,
fraud or bad
exclusive unless
Lynch,
clearly
Ins.
Home Fire
faith can be
shown. See
Co.
681;
County,
Nutter v.
58 Utah
19 Utah
56 P.
Carbon
Taxation,
Edition,
; Cooley on
4th
Vol.
Sec
Remanded with instructions party opinion. bear own costs. with Each its PRATT, J., concurs. part (concurring and dis-
LARSON, Justice Chief senting part.) WADE, except opinion Mr. Justice
I concur in the *14 Reich, statement, upon the case of Crismon v. to the based p. 111, Rep. an to the effect that 2 Utah 40 Pac. St. taxing by the units to recover cannot be maintained action property, to personal which are not attached taxes on taxes many have the case there been so real estate. Since Crismon theory, procedures, changes statutes, tax in tax in in our liability, concept I think the in that state and the tax longer controlling. I no no see ment in case the Crismon personal may unpaid why lie for taxes on rеason an action summary proceeding of seizure under where practicable. tax is not laws McDONOUGH, part (concurring Justice in and dissent- ing part). in except opinion
I of Mr. Justice WADE concur in applies holding for taxes that Sec. 104-37-1 to debts due As to that Tax assessed State Commission. Mr. I concur in the dissent of Justice WOLFE. dissenting in (concurring part WOLFE, in and Justice part). order, agreement disagreement my my I and
In own note main holdings propositions on the discussed in the with which, if up propositions opinion. I shall first take those dispose and plaintiffs, whole matter of the found would unnecessary go secondary further into defenses. make it apply to was never intended to First: That the statute plaintiffs are leased railroad cars of the agree operated by I with the conclusion and them. duty opinion of the made it the main the statute they plaintiffs if attained assеss the cars commission to purposes when taxation and in this state for a situs county. And this the case operated more than company operated which owns are the cars whether operates or them company them which leases them arrangement. some other under interpretation I opinion concur in the made in the main “operated county.” of the clause as a unit more than one It must awkwardly phrased be admitted that the matter was legislature give meaning but to the clause other play purpose would havoc with the intent real legislature as revealed the act. plaintiffs’
As to the next contention order that the rolling Utah, stoek attain a tax situs in prescribe just not the commission must formula for ascer- taining average plaintiffs’ number of cars in I Utah. agree reasoning with the conclusion and the Mr. Justice regаrd. WADE in this
In the case of State ex rel. Public Service et al. Commission Co., al., 25, 43, Southern et 95 Utah 79 P. 2d Pacific concurring opinion, I concluded that Art. *15 gave power our Constitution which the tax commission and imposed duty public iton the to assess and mines utilities preclude legislature providing was not intended to the from public a method or formula which to ascertain value of stating legislature provided by utilities formula the reasonably appropriate or the tax commission must be for finding money. reasonably in The the value formula would be appropriate long not so as it did every practice, which in “exclude element common and the common experience mankind, judgment money used to arrive at a money.” or
value value T to believe that the constitution meant to reserve the still legislature power prescribe appropriate to formulae for ascertaining public and, fortiori, the value of utilities specifically not which the constitution did other opinion in The main make the tax commission the assessor. recognized power distinctly Pacific case the Southern including steps prescrip- commission to take all of the tax ascertaining value as well and formulae tion of methods process of application of them in the total assessment as the concurring simply attempted opinion to The of utilities. legislature power prescribe to formula to the also reserve ascertaining valuation of utilities and held that the tax power prescribe commission did not have sole to the method Constitution, formula. But Art. Sec. 11 of the 4, 1930', provided amended legislature on November that the give “powers original could the tax commission assess- property, power legislature ment” of other which the though would have expressly had even mentioned legislature constitutional amendment. I think when the gave power commission the to assess the power car prescribe it carried with it the to con- ascertaining stitutional migratory methods the value of property which had a taxable situs in Utah. When the legislature gave power the tax commission the to assess originally property transportation of car companies, power authority such carried with it the same to devise con- appropriate stitutional ascertaining methods of powers given- valuation of as did the constitution to the tax commission in the case of al- utilities though, according my thinking, if it de- prescribed sired could have the method or formula to be used. above, apparent
From Iwhat have said it is that I сoncur legislative it does- not take action to average presence1 (a might determine pro- better term portional presence) in Utah. 1"Average presence” annalogous average is somewhat to a bank’s daily deposits subject which it .is free loan to- its customers specified “average” which, reserves. The is the amount if left continuously every day period would, multiplied banks over a if *16 days given period, equal daily in deposits the total of actual left during period. in the bank Where a certain number of cars of a transportation company Utah, although car or come into their home is. during year, varying elsewhere days, a taxable for each a number of reasonably a formula which days, would substitute those car actual continuously during the cars which would have to be here the taxable
year days treating in order to make the same total car would then be company during if as it had allocated to Utah the whole of the year resulting taxable of number cars from the formula and Utah would be the taxable of situs that number of cars.
446 process might The remainder of the per- assessment average haps be to an value of simply find these cars and multiply plaintiff’s of the number cars each cars by allocated to Utah as found the above formula such But, done, value. however that was as stated in the main opinion, evidently timely objected it was plaintiffs. Furthermore, agree I that the fact that all cars were assessed the same is no basis conclude that arbitrarily figure assessment was made because the uniform might average aimed at which, be the value of the car course, styles ages, would take into account the diverse value of individual cars. phase case, agree
To conclude on this of the I with the opinion statutory of main that there was author- ity for commission to assess the of car transportation companies after the 1983 revision our this, (I code. shall later touch the matter of on whether years ; taxable for the 1933) was 1932 and unnecessary legislature it prescribe was for the regulation ascertaining companies whether cars such valuing had a taxable situs Utah or a formula for cars. agree
I plaintiff companies public that the are not utilities. quite probable, pointed commission, But it is out the tax legislature that the 1931 intended to include them within the “public term Chap. utilities” as that term was used in history legislation preceding Laws of 1931. The and related statutes in reference to the taxation of the roll- ing legislature stock of car reveals that at “public sense, times used the term utilities” in nontechnical excluding scope properties from sometimes its which were undoubtedly public placing group utilities and them separate public from other utilities. In the Revision of 1933 (Section 80-5-3) placed public unquestioned it some utili- companies. ties the same classification as car In fact the regrouping seemed more concerned in properties, technically whether or not utilities which were complied only the 1917 laws assessable the State Board
446 they Equalization operated inter-county, if were so that regardless they group operated some of that of whether were newly inter-county by be would assessed created tax group by commission. Others were not to be assessed they inter-county. tax commission unless were Con- sidering reading the 1931 statute as a whole and it in con- previous history nection with related and of taxa- statutes companies, persuade tion of car there much to one to the “public 1931 view that the used the term utilities” amending way extracting Sec. 5873 as a short out of (which C. L. U. 1917 made by railroads, railroads, car, and “all franchises owned street light, line, telegraph telephone, pipe power irrigat- and electric canal express companies operated county ing, and in more than one of thiB state” by Equalization) Board of certain of assessable State therein, the items named to wit: “railroads, railroads, car, telegraph telephone, light, and electric street * * * companies” express and regardless by the new tax commission to be assessable they operated inter-county leaving or not were and whether irrigation companies line, power, рipe canal and only operated inter- the tax when assessable commission difficulty county. commission, find, I as does the tax legislature, light ascribing any why 1931 in the reason authority years having practice a central for 55 companies recom- of car and view the tax the study appointed legislative com- tax made mendations mittee, governor message, in his the state’s rolling single taxing officials, stock of car out should local companies taxed the various and leave that to be disagree with the I am inclined to Hence assessors. Chap. opinion 53 of Laws of did of the main rolling duty to assess impose on the tax commission during period from March stock of car holds, if, opinion to June 1933. But as the main *18 eight year applying judgments of statute limitations to taxes, I applies to the collection of that need cannot see we question. with the above And me be concerned this leads matter of the to consider the Statutes Limitations as procedure. applied tax to agree opinion
I with the of the main a that tax liability liability by any a created and hence is statute action brought it, any exists, if must within to collect such three attaching liability. agree years I of the of the also that Sec. apply any 104-2-47, U. C. A. to does but actions nature; is, judicial quasi-judicial of a that in the or actions quasi-judicial or bodies Industrial courts before such as the duty pronounce to Commission where a tribunal has presented it, party or on evidence adduced to that one is obligated pro- proceeding or to another. To denote a liable for for the collection of taxes where no vided statute quasi-judicial body adjudication by judicial a or was in- giving an would be to that word as it has volved as “action” meaning concepts judicially at variance with the been used (cid:127) dealing implied with the limitation of both our sections concept has jurisprudential with which it actions and the Moreover, law the centuries. invested over become grave consequences might whole tax I lead to our think it system. Many proceedings by tax officials for the assessment, levy are so defective and collection taxes liability give deed, yet support the tax not to valid January year. may from of the taxable of the owner subsist prevent case, the tax debtor from what would If is the such (which up year a few taking refuge in the three statute asserting everything years ago only year) was liability necessary be done within must to collect years any proceedings for the collection three because etc., delinquency, an is liability as sale the tax Sec; provides limitations 104-2-31 “action.” And since state, against the state for the an action benefit run taken within no “action” had been because barred procedure for collection year period of the tax three —all having nugatory. been invalid and argument Whether such not,, I procedure provided tenable or do not think collecting companies by a tax from car seizure and sale can imagination stretch be denominated an “action” pertaining as meant the statutes to the limitations of actions. eight year
But what about the pertains: statute which judgments the issuance writs of execution on 104- —Sec. 37-1, quite sympathetic U. C. A. 1943? I am to the view of plaintiffs period that there should be some after which repose the tax debtor could from fear of tax collections. taxing Some of our laws such as the sаles tax act have such periods proceeding within which assessment other tax must be had as condition for the collection of the But tax. providing our tax statute for ad valorum taxes on real and *19 personal any general provision do not contain for bringing obtaining judicial an for tax action and thus a judgment although for it there was at one time in our stat- (Sections 6047, provision 6090-6092, Compiled utes for suit Utah, provision 1917) Laws of and there is now for the court on real under foreclosure estate certain circumstances (Sections 1943), to A. and for 80-10-41 U. C. suit to special (Section collect taxes on livestock circumstances 80-5-27, 1943). A. U. C. 80-10-1, 1943, provides every C. A. tax
Section U. judgment against delinquent shall have the effect of a every validly presume I this means tax assessed tax debtor. gives validly But a which assessed and and levied. statute a judgment judicial of a does not mean levied tax the effect applies judg- that the limitations which to court statute of obligation. applies A which after to such tax statute ments judgment judicial of a a time bars the collection a certain quasi-judicial perhaps not an “effect” of of a tribunal is obligation given judgment. A tax which is the effect of a judgment judgment It can- not a as that term is used. a is judgment on in another state. The effect a not be sued amount and nature of it a final determination of is that is against obligation imposed it is a lien and that judgment county real debtor’s estate in the where docketed. given by But 104-87-1, the execution Section U. C. A. applicable only judicial judgments is and not to taxes which under 80-10-1 Sec. have judgment against person.”
“the effect of a reasoning In order through, follow we should start 80-10-1, with reading Sec. part: U. C. A. * * * “Every judgment every has effect of a lien created this title has the duly force and effect of an execution * * against personal property delinquent
levied all of the Applying provision, against the tax levied the car company judgment. then has the effect One of the judgment of a effects is that it is a lien on the real estate judgment county debtor in the where docketed. But personal if there is no real estate there is no lien for these consequently taxes to attach and since there no they lien for these taxes have not the force an and effect of personal duly against execution levied of the delinquent. provided execution The Sec. 80-10-29. argued prevailing opinion
It is that since this tax judgment, has the effect of which it effects has 104-37-1, allows, is enunciated in Sec. U. C. A. which period eight years entry judgment, after date of aof point a writ of execution tо issue. I think that at this opinion pertains judicial into error. 104-37-1 falls judgments judg- and not taxes have of a the effect *20 words, taxing authority may ment. In other sue out not may judicial writ of a execution as a case sheriff, levy judgment and hand it to him have under 104-37-1, give notice Sec. under Section 104-37-18 for not days less than five nor more than ten and then sell. There rolling provided.— types on are two of execution not stock Chap. under one under Sec. 80-10-29 and one 37 Title 104. only type provided for. The first is the execution a pronouncement legislative that a think I do not thing judgment means the same of a have shall effect only judicial judgment which can saying be a that it shall by starting a court action. obtained provided for in type execution obtain In order to judgment obtained on which 104-37-1, matter According through judicial to the case go channels. must prevailing Reich, in the 2 Utah cited оf Crismon opinion, for the collec- ample powers are afforded statute and means “when providing for suit, there is no statute and when of taxes without
tion taxes, brought maintained therefor.” no action can be for suit to be obtaining statutory provision since there is no And judgment judicial judgment like this a in a case for taxes way which to no Consequently, there is cannot be had. type of execution judgment would make the obtain applicable. Hence the Chap. Title 104 provided 37 of for in part 104-37-1 does years of Sec. eight which is limitation apply. limited the tax commission mean that This does not 80-10-29 very assessed. Section of the cars and sale seizure specifies that county governing treas- provisions and sale the seizure of law “the apply delinquent to sales personal taxes shall
urers of * * this section under made the state tax commission reading: provisions 80-10-47 is Sec. One of those personal property, may deliquent taxes on collect the “The treasurer therefor, except seizure and sale real estate is liable when sufficient * * delinquent any personal property owned regard statutory plaintiffs argument to a The be addressed to the repose of taxes should from collection legislature. part of the main regret I concur in this
I cannot concur, opinion I parts of the other opinion. with the But agreement reserving with the hold- from that concurrence was not assessable ing of car *21 during the tax period commission from March to June 1933. matter, As to that I have consider- able doubt but doubt which under the of the main opinion obligations are, eight years, after barred I from need collection not resolve.
BEMENT v. BEMENT.
No.
(174
6962.
996.)
Decided December
1946.
P. 2d
Marriage,
131;
See 38 C. J.
sec.