83 P. 933 | Idaho | 1905
Lead Opinion
— This action was commenced by the plaintiff, a Washington corporation, for the purpose of having an assessment against certain timber lands owned by plaintiff and situated in Kootenai county vacated and set aside, and to restrain and enjoin the collector from collecting a tax under such assessment. The plaintiff’s first cause of action alleges that under the act of Congress approved June 4, 1897, the plaintiff had located forest reserve lieu land scrip on a body of government lands situated in Kootenai county, and that the location and selection had not been approved by the commissioners of the general land office up to January 12, 1903, and that on January 12th, the title to all such lands was still in the United States, and that the same was not taxable by .or under the authority of the state of Idaho. The second cause of action alleges that prior to January 1, 1903, the plaintiff made soldiers’ additional homestead applications under the. act of Congress as embodied in sections 2306 and 2307 of the Revised Statutes of the United States, for certain lands situated in Kootenai county, but that none of said applications were approved or allowed by the commissioner of the general land office up to and including January 12, 1903, and that on January 12th the title to such lands still remained in the United States government, and that the same was not taxable by the state of Idaho. It is further alleged in each of the foregoing causes of action that the assessor and the board of commissioners, acting as a board of equalization, proceeded to and did assess all of the lands embraced under these scrip applications and locations for the year 1903. The third cause of action includes all the lands contained in both the first and second causes of action, and also lands which the plaintiff admits that it did own and were taxable for the year 190.3. Plaintiff alleges, however, under the third cause of action that the assessment was made after the board of equalization had met and without notice to .the plaintiff, and that the assessment so made was “far higher than the assessment of other lands in the county of Kootenai of precisely the same class, character and value, and are in excess of the fair values of said
The defendant demurred to the plaintiff’s complaint, and the demurrer was overruled as to the first cause of action and was sustained as to the second and third causes of action. Plaintiff refused to further plead and the court entered judgment of dismissal as to the second and third causes of action, and the defendant answered the first cause of action. The plaintiff thereupon demurred to the answer and the demurrer was overruled by the court, and the plaintiff elected to stand on its demurrer. Judgment was thereupon entered in favor of the defendants. It is from these judgments that this appeal has been prosecuted.
The first proposition argued by the appellant is that the state had no right or authority to tax lands the legal and equitable title to which was still in the United States. That neither the forest reserve lieu land scrip location nor the soldiers’ additional homestead location had been accepted or allowed or approved by the commissioner of the general land office prior to the date on which the tax lien attached for the year 1903. The respondent contends that such question does not arise in this ease, and that if it should be resolved in favor of the appellant that still appellant could not succeed in this ease. Respondent insists that the appellant is estopped to deny that it was the owner of these lands and that they were taxable within Kootenai county for the year 1903, for the reason that appellant on July 16, 1903, through its legal and authorized agent, furnished the assessor with a statement of its taxable property for the year 1903, which statement contained a description of the identical lands from the payment of taxes on which the appellant is seeking to be relieved in this action.
There appears to be some diversity of opinion among courts as to how far the doctrine of estoppel will be carried in its application to the taxpayer who is required by statute similar to ours to furnish the assessor a statement of all
In San Francisco v. Flood, 64 Cal. 504, 2 Pac. 264, the court, in discussing the duty of a taxpayer to furnish the assessor with a list of his property and the effect of his failure to do so, said: “Whether the description was furnished by the taxpayer, or was made by the assessor, the taxpayer having failed to furnish a list, the complaint of the taxpayer in regard to it should not be regarded. In our opinion it is the duty of the taxpayer to furnish a true and correct list of his taxables to the assessor, and if he fails to do so, and any loss should result to him in consequence of such failure, his complaints on such score should meet with no favor in a court of justice.”
In People v. Atkinson, 103 Ill. 45, it is said: “Where a person makes out and delivers to the assessor of the town in which he keeps his business office, the schedule of the amount, quantity and quality of all his personal property required to be listed for taxation, he will be bound by such return, though a portion of the property is required to be returned by him to the assessor of a different town, where it is also assessed.” This last case was cited with approval and fol
In Hamacker v. Commercial Bank, 95 Wis. 359, 70 N. W. 295, the cashier of the bank had furnished the assessor with a statement of the property of the bank which contained $20,000 worth of personal property which did not in fact belong to the bank and was not assessable to the bank. The supreme court, however, held that the bank and its officers; and receiver were estopped to deny that the bank was the owner of such property. On this branch of the case the court said: “Upon the tax-roll the bank was assessed directly as the owner of personal property valued at $20,000, and the various items of taxes were carried out. Although this was an improper mode of taxation, we do not perceive how the bank could escape from paying the tax which was based upon a personal property return made by its own cashier. In such eases the principle of estoppel has been frequently applied, and certainly with justice. (25 Am. & Eng. Ency. of Law, 209; Ives v. North Canaan, 33 Conn. 402; Republic L. Ins. Co. v. Pollak, 75 Ill. 293; People v. Stockton etc. R. R. Co., 49 Cal. 414.) If the bank could not question or resist the tax, no ground is perceived upon which the receiver could resist it.” To the same effect see Kirkwood v. Ford, 34 Or. 552, 56 Pac. 411; Phelps Mtg. Co. v. Board of Equalization, 84 Iowa, 610, 51 N. W. 50; Lake County v. Sulphur Bank etc. Min. Co., 68 Cal. 14, 8 Pac. 593; 27 Am. & Eng. Ency. of Law, 2d ed., 671. it must be conceded, we think, that the estoppel which has been applied against the taxpayer in the foregoing cases does not rest upon the usual principles nor contain the elements necessary or usually required in courts of equity in the application of that doctrine. It seems to be applied rather, upon the principle that it is the duty of the taxpayer to see that a list of his property is furnished to the. proper officers for taxation, and although that fact.might not be misleading
From an examination of these cases it will be seen that in the Missouri, Nebraska and both of the Wisconsin cases, the courts declined to apply this principle of estoppel, for the reason that the property which had been assessed was outside of and beyond the jurisdiction of the taxing officer and situated within the jurisdiction of another county. These courts held that inasmuch as property included in the statements made by the taxpayers was situated, as shown by these statements, beyond the limits of the county, and subject to taxation within another county, that the taxing officers therefore had no jurisdiction over the property and that the assessment was for that reason void. The Missouri court, however, in State v. Burrough, supra, observed that the defendants might be estopped from denying the ownership of the land described in the tax bill by reason of the fact that they furnished a list of their property including the land in question therein. Centennial Eureka M. Co. v. Juab County, supra, seems to rest for its authority upon two propositions: 1. The peculiarity of the Utah’ statutes
On the general statement of the doctrine the Utah court is undoubtedly correct, but when we come to consider the respective duties and obligations imposed by law and public policy on the taxpayer on the one hand, and the tax assessing and collecting officer on the other hand, we at once see the necessity of a more liberal application of that principle in favor of upholding and enforcing an assessment and against the taxpayer. We are of the opinion that in the case at bar the appellant having furnished a statement which included these lands as its property, and the board of equalization and the assessor having acted on the faith of such statement, appellant should not now be heard to say that it did not own them. If these taxes are not paid and the property should be sold, such a sale cannot affect the government but only such right and title as the appellant has. The government is not here complaining, and it is difficult to see what injury can result to appellant on account of the assessment of those lands if indeed they belong to the government.
Passing now to a consideration of the question of notice, we will first observe the provisions of the revenue act of March 22, 1901. Sections 28 to 35 of the act (Sess. Laws 1901, pp. 245-248) make it the duty of every person owning property to furnish the assessor of his county a statement under oath setting forth specifically all of' the real and personal property owned by such person or under his control at 12 M. on the second Monday in January of that year, and any person failing or neglecting to furnish such statement, under oath, after demand made therefor, is subject to the penalty of having his property listed and assessed by the assessor,
Appellant complains that it had no notice that its property had been assessed and no opportunity to appear before the board of equalization. We find the following state of facts as contained in the record: The board of commissioners met as a board of equalization on July 13, 1903, and continued in session until July 16th, when they adjourned until July 20th. On July 20th they convened and continued in session during that day, and thereupon adjourned until July 27th. On July 27th, which was the fourth Monday, they met and continued in session until the 28th, when they adjourned sine die. The assessor alleges that he completed the assessment-roll for the year 1903 on the eleventh day of July, and delivered the same to the clerk of the board of commissioners, and that prior to that time he had no knowledge or information concerning the property described in plaintiff’s complaint, and for that reason the same had not been by him assessed up to the time he completed the roll and delivered it to the clerk of the board. That prior to the sixteenth day of July, 1903, the plaintiff had failed and neglected to furnish the assessor with a statement of its property, and that on the sixteenth day of July he made a request that it furnish such list, and that thereupon the • plaintiff furnished a statement as required by law which contained a description of the property described in plaintiff’s complaint, and concerning the assessment of which the plaintiff is complaining in this action. The assessor further alleges that thereafter, and on about the twenty-eighth
Section 60 only requires notice to be mailed to persons who have already been assessed and whose assessments are “altered, modified, or affected in the amount of valuation of property charged to them. ’ ’ There is no requirement that a notice be mailed to a person who has never been assessed and whose assessment is ordered by the board. Every person who has not been assessed prior to the date on which the assessor delivers the assessment-roll to the clerk of the board has notice that the board will order his property assessed if they discover it. Therefore, if any person whose property has not been assessed wants to know the amount for which his property is assessed or to be heard in relation thereto, he should appear during the session convened on the fourth Monday in July and present his grievances. (Oregon etc. Ry. Co. v. Lane County, 23 Or. 386, 31 Pac. 964; Ramp v. Marion County, 24 Or. 461, 33 Pac. 681; Kirkwood v. Ford, 34 Or. 552, 56 Pac. 411; Albany Mutual Bldg. Assn. v. City of Laramie, 10 Wyo. 54, 65 Pac. 1011; Aggers v. People, 20 Colo. 348, 38 Pac. 386; United States Trust Co. v. Territory, 10 N. Mex. 416, 62 Pac. 987; Orr v. State Board of Equalization, 3 Idaho, 190, 28 Pac. 416.)
The judgments appealed from are affirmed. Costs awarded to respondents.
— It must be conceded that lands belonging to the government are not assessable to anyone so long as the title remains in the United States. The homesteader or entryman under any of the provisions of the land laws can only be assessed for the improvements he may have on the land. It is true in this case that the land in controversy was returned by an agent or officer of the corporation as part of the assets of the company or corporation. It is possibly true that after such return they should not be heard to complain of the assessment, as the defendant assessor was in no way responsible for the error, if such it was, in the return of the property. Entertaining these views, I express no opinion as to the rights of recovery in this action.
Rehearing
— A petition for rehearing has been filed in this case, and it is stated therein that “it is apparent from a reading of the opinion relating to the third cause of action that the court assumed that the respondent filed an answer to this cause of action, whereas the fact is, as stated in the first part of the opinion, that the respondents demurred to this cause of action and the demurrer was sustained. This being true, it seems to us that an entirely different aspect is put upon this part of the case.” And in support of that contention counsel quotes from the opinion as follows: “It is true that the plaintiff alleged that the assessment was made after the adjournment of the board, but as the case comes here on demurrer to answer, we must concede all the allegations of the answer.” The facts are as follows: The complaint purports to state three causes of action; a demurrer was sustained to the second and third, and overruled as to the first. That left the complaint stand
Upon that state of facts the court in its decision must find all of the material allegations of the complaint denied by the answer in favor of the defendant. Upon all issues denied by the answer, the plaintiff must produce a preponderance of evidence to recover, and the lower court, we think rightly concluded that on the complaint and the answer thereto, the plaintiff was not entitled to a judgment. (Walling v. Bown, 9 Idaho, 184, 72 Pac. 960; Mills Novelty Co. v. Dunbar (Idaho), 83 Pac. 932.)
It is further contended by petitioner that it is not pretended that the list of taxable property furnished the assessor was the official statement which the assessor had a right to exact and which the law provides must be sworn to, and for that reason the doctrine of estoppel will not apply. We cannot agree with that contention. The appellant furnished a list, and under the facts of this case, whether it be sworn to or not, whether it be the official list or not, he is estopped at this time from denying that it is correct. The petition for rehearing is denied.
Dissenting Opinion
ON REHEARING.
