90 N.W. 799 | N.D. | 1903
The plaintiff is a foreign corporation engaged in the manufacture of threshing machines in the city of Richmond, Ind. This action was brought to recover the sum of $59.22 paid by the plaintiff to the defendant as sheriff of Traill county for an alleged personal property tax assessed by the taxing officers of said county in the year 1900 upon a certain threshing engine and separator, of which the plaintiff was the owner. Payment of the tax in question was made by plaintiff under protest, and under the coercion of a seizure of its property by the defendant sheriff. The defendant interposed a general demurrer to the complaint, and the same was sustained by the trial court. Judgment was ordered and entered
The complaint, in substance, alleges that the property which was the basis of the tax exacted from plaintiff was not in Traill, county, or in this state, on the ist day of April, 1900, but was at plaintiff’s factory, at the city of Richmond, in the state of Indiana, on said date; that said property was listed and assessed for taxation in said city and state for said year; that the property in question was not shipped into this state and into the city of Hillsboro, in Traill county, until April 27, 1900; that subsequent to said last-named date it was assessed by the city assessor of said city of Hillsboro for the year 1900, .and said assessment returned to the county auditor of Traill county; that the tax in question was based upon the assessment so made and returned. Further reference to the averments of the complaint will not be necessary.
The facts stated present the single question in controversy in this case, which is whether, under the revenue laws of this state, property coming into existence or (brought into the state after April ist in any year is taxable for that year. It is conceded that, if property brought into the state after April ist is subject to taxation for the current year, the property in question was lawfully assessed, and the complaint does not state a cause of action. If, on. the other hand, property coming into the state after April ist is not taxable for that year, then the sum of money which plaintiff seeks to recover concededly was exacted without authority of law, and the complaint states a cause of action for its recovery. It will thus be seen that the entire controversy is as to the taxability of the plaintiff’s property when assessed.
Counsel for plaintiff contends that “personal property brought into the state after April ist in any year is not taxable for that year.” Counsel for defendant, on the other hand, maintains that not only is property which has a situs in the state on April ist of any j^ear taxable for that year, but that “all personal property, whenever and wherever found, in this state between the ist day of April and the ist day of June of each year, is subject to assessment and taxation under the general revenue laws of the state; and this, whether the property was owned in the state on the ist day of April, or came into the state on or after that date, before the ist day of June, and during the assessing period.” Briefly stated, the position of counsel for plaintiff is that only such personal property as is in the state on April ist is taxable; whereas, counsel for defendant contends that all personal property having a situs within the state at any time between the ist day of April and the- ist day of June of any j^ear is subject to taxation for that year, and should be assessed. The solution of the question thus presented turns upon the provisions of chapter 126 of the Laws of 1897, which chapter is now embodied in chapter 18 of the Political Code (Rev. Codes
The revenue laws now in force in this state were borrowed from the state of Minnesota, and were first adopted in chapter 132, Laws 1890, the parent statute being chapter 11, Gen. St. Minn. 1878. The Revised Codes of 1895 repealed the above chapter, and restored the revenue system embraced in the Compiled Laws, which were in force in this jurisdiction prior to 1890. Chapter 126, Laws 1897, our present statute, superseded the Laws of 1895, and restored the- original 1890 law, which, as we have seen, was adopted from the state of Minnesota.
It is properly conceded by counsel for defendant that both under the provisions of the Compiled Laws and under the provisions of the Revised Codes of 1895 the power to assess personal property for taxation in each year was limited to personal property situated within this state on the 1st day of April, and that the assessment of personal property was required to be made in the name of the owner on said date at its .then value. The language employed by the legislature was clear and explicit, and left no room for cavil as to its purpose to fix upon April 1st of each year as a particular point of time which was to determine the taxability of personal property for each current year. See section 1547, Comp. Laws; section 1182, Rev. Codes 1895. The language of chapter 126, Laws 1897, under which the assessment here in question was made, is <vM-rpwhat different from that found in the Compiled Laws or in the Revised Codes of 1895, and certain provisions are contained in it which were not embraced in the Minnesota statute from which it was originally taken. It is entirely upon these differences that counsel for defendant bases his claim that a different period for determining the taxability of personal property from that formerly existing has been provided. Before considering the several provisions relied upon to sustain the contention that a change was made in legislation, whereby a new period covering the entire months of April and May was fixed for determining the taxability nf iiersnnal ru-onei-tv in lieu of the single point of time designated by the Compiled Laws and Revised Codes of 1895, to-wit, April 1st
Counsel for defendant, relies entirely upon the provisions of sections 1189, 1211, Rev. Codes 1899, to sustain his contention that the legislature intended that all property coming into existence or into the state during the assessing period, which extends from April 1st to June 1st, should be assessed for the purposes of taxation for the current year. So far as important to the question at issue, the sections are as follows:
“Sec. 1189. All personal property wherever and whenever found between the ñrst day of April and the ñrst day of June shall be listed by the assessor, and in all questions that may arise under this chapter as to the proper place to list personal property, or where the same cannot be listed as stated in this chapter, if between several places in the same county, the place for listing and assessing shall be determined and fixed by the county board; and when between different counties, or places in different counties, by the auditor of the state; and when so fixed shall have the same effect and be as binding as if listed by the assessor as required by this chapter.”
“Sec. 1211. The assessor shall perform the duties required of him during the months of April and May of each year, except in cases otherwise provided, and in the following manner, to-wit: * * * He shall make an alphabetical list of the names of all persons * * * liable to assessment of personal property, and require each person to make a correct list and statement of such property according to the prescribed form, which statement and list shall be subscribed and sworn to by the person listing the property with full name; and the assessor shall thereupon determine the value of the property included in such statement and enter the same in his assessment books opposite the name of the party assessed: * * * provided, that personal property shall be assessed upon view, by the assessor at any time within the limit prescribed by the provisions of this article, at its then actual value regardless of any change of ownership prior to such assessment; but if the owner, factor or agent can show by duly authenticated certificate that the property has been lawfully assessed in any other town, city, village or district in this state for that year, then such property shall not be assessed.”
Those portions of the sections quoted which are in italics were not contained in the Minnesota statute, but were added by the legislature of this state when the sections referred to were adopted. Do these added provisions create a new and different period for deter
At the outset it will be noted as a fact of considerable significance that section 1181 and subdivision 10 of section 1182, previously quoted, were not expressly modified, and, as we have seen, said sections, when adopted in this state, had been construed by the supreme court of Minnesota as fixing April 1st as a point of time for determining the taxability of personal property as well as its ownership and value. The defendant relies upon the provision added to section 1189, that “all personal property wherever and
Again, it will be noted that there is no provision in the statute which requires the making Of additional or supplemental lists to cover property acquired after April 1st. On the contrary, the statute contemplates the making of but one list. It is therefore evident that if all persons who under .the law are required to list property within a certain taxing district should on the 1st day of April make out and deliver to the assessor a true and correct list of all personal property then taxable the law would be fully complied with. There is no provision from which it can be inferred that, after such lists have been made and delivered to the assessor, there still remains the further and continuing duty to make out further and alditional lists from time to time during a period of two months to cover the various articles of personal property of which persons might, in the course of business or otherwise, become owners. It must be conceded that the legislature has placed no such onerous duty on persons charged with the duty of listing property for the purposes of taxation. This being true, it follows necessarily that when the duty of listing personal property devolves upon the assessor, through a default on the part of those primarily charged with that duty, he is merely required to prepare or procure a list embracing the same property as would have been included had the list been made by the person charged with that duty on April 1st, and he is neither required nor authorized to include or add other or additional property to that which was taxable on the 1st day of April. In this view, — and no other rational construction seems possible, — the command laid upon the assessor in section 1189 to list all personal property, wherever and whenever found, between the 1st day of Aprikand the 1st day of June, must be held to be merely a requirement that, while performing his duties during the assessing period, he shall list, not all personal property which may have an existence in his taxing district during that period, but all personal property in such district which is subject to taxation for the current year, and which it was the duty of the owners to list on the xst day of April. This interpretation is in harmony with the general provisions contained in sections 1181 and 1182,- as construed by the supreme court of Minnesota, and also with all other portions of the act. It is also in harmony with the legislative policy during territorial times as expressed in the Compiled Laws, and also with the policy of this state as plainly declared in the Revised Codes of 1895. We think, too, that it is a fact of some importance on the question of legislative intent that the legislature in the same chapter, in. making provision for the taxation of shares of bank stock, pro
It is not claimed by counsel for defendant that the proviso added to section 1211 grants any power to assess property coming into this state after April xst. It is argued, however, that it tends to sustain defendant’s construction of section 1189. We are unable to see wherein the proviso referred to lends aid to counsel’s contention or conflicts in any particular with the conclusions we have reached. It is conceded that the requirement that personal property shall be assessed “at its then value” relates back to April 1st, and does not relate to the time when it is actually inspected by the assessor. So, also, we think the intent and meaning of the provision that personal property shall- be assessed “regardless of any change of ownership prior to such assessment” is not obscure, when considered in connection with the further provision of the section that the owner, factor, or agent who is called upon by the assessor to list property in his possession or under his control during the assessing period can relieve himself from the assessment of property found in his possession by showing that it has been assessed elsewhere in the state for that year. The plain purpose of this provision is to relieve the assessor from the burden of ascertaining the ownership of the property on April 1st, which is the period of time which determines its taxability, and casts such burden upon the person in whose possession it is found; and, in case the person in possession fails to show that the property has been assessed elsewhere and to the owner of the same on April 1st, the assessor is authorized to presume that the person then in possession was the owner of the same on April 1st, and to make the assessment apcordingly.
For the reasons stated we have reached the conclusion, without hesitation, that under the general revenue laws of this state the tax-ability of personal property depends upon its existence and presence in the state on the 1st day of April of each year. This we believe has been the construction placed upon our revenue laws both by the public and by the officers charged with their execution. Were the question a doubtful one, — and we do not think it is, — this fact alone would probably control our decision, under the wholesome rule that “the practical construction given to a doubtful statute by the public officers of the state and acted on by the people thereof, is to be considered. It is perhaps decisive in case of doubt.” Suth. St. Const. § 309, and cases cited at note 4. We may also add that, if the language employed by the legislature made the question fairly debatable, it would, we think, be our duty to hesitate long before holding that it was the purpose of the legislature to
It follows that the trial court erred in sustaining the demurrer to the complaint. Judgment reversed.