7 Wyo. 237 | Wyo. | 1898
(After stating the facts as above.) Section 3776 of the Revised Statutes as amended January 8, 1891 (Chap. 36, L. 1891), prescribes what property shall be taxable, and sheep are designated therein. The county assessors commence the annual assessment as soon as they are furnished with the assessment roll with which - they are required to be provided by the county commissioners on the first Monday in April in each year. Generally, all personal property is required to be listed in the county where it may be on the first day of April of the current year, and if the owner resides out of the State, it shall be listed and assessed where it may then be. The board of county commissioners of each county is constituted a board of equalization for the correction and completion of the annual assessment roll; and they are required to hold, as such, two regular meetings in each year, at the office of the county clerk. The first meeting commences on the fourth Monday in June, and may continue not exceeding fifteen days. The second is required to commence on the fourth Monday in July, and may continue not less than three nor more than six consecutive days. At the first meeting, the board is authorized to add to the roll any omitted taxable property, and to hear and determine the complaints of all parties feeling aggrieved by the assessment of their property as returned by the assessor; and may increase, diminish, or otherwise alter and correct any assessment or valuation. It is made the duty of the county clerk to notify each person whose assessment has been raised or increased by the board, of the amount thereof. Such persons may appear before the board at either meeting and be heard respecting the same. (Section 3801, Rev. Stat., as amended by Chap. 36, L., 1890-91.)
No notice or demand on any taxpayer is enjoined, but after the date last above mentioned, all such taxes, which include State, county, and school district taxes, are due and payable at the office of the collector. (Laws 1890-91, p. 163.)
After the tax list has been committed to the collector, if he ascertains that any property has been omitted, upon his reporting the fact to the assessor, the latter is authorized to enter it upon the assessment roll, and assess the value, and the collector to enter it upon the tax list, and collect the tax as in other cases. (Rev. Stat., Sec. 3817.)
General provision is-also made for the taxation of any personal property “brought, driven, or coming” into the State at any time prior to the last day of each year, and which shall remain for a period of not less than thirty days. (Rev. Stat. 3845.)
It is made the duty of the proper officers to assess such property at any time after the annual assessment, and the taxes thereon become due and collectible at the same time, and in the same manner as the annual taxes; and if assessed after such annual taxes are payable, they become due as soon as assessed and levied. As to such property, however, it is provided that in case it shall have been in the State before such assessment more than thirty days but less than six months, there shall be collected but a half year’s tax, the same to be computed at one half the tax levied against other like property for the current year. From the provisions of this section, merchants and dealers are excepted as to goods and merchandise brought in to
Section 1. “All live stock brought into this State for the purpose of being grazed shall be taxed for the fiscal year during which it shall have been brought into the State.”
Sec. .2. ‘ ‘ Assessors are, for the purpose of enforcing this act, hereby vested with the powers, and charged with the duties, vested in and conferred upon other officers for the collection of taxes. ”
Sec. 3. “It shall be the duty of the assessors in the several counties to levy and immediately collect the taxes provided for in this act, as soon as any live stock is brought into their counties to graze; and to pay, without delay, such amounts to the treasurers of their respective counties.”
Sec. 4. “Whenever the owner of any live stock upon which a tax has been levied as provided in this act shall refuse to immediately pay the’ amount of such tax to the assessor who levied it, such assessor shall proceed forthwith to collect such tax as provided by law for the collection of delinquent taxes on other kinds of personal property.” (Laws 1895, Chap. 61.)
This statute is assailed, by counsel for plaintiff, as being in conflict with that provision of the federal Constitution which grants to Congress the power to regulate commerce with foreign nations, and among the several States and with the Indian tribes; and also that provision of the
1 £ All taxation shall be equal and uniform. ” £ £ All property, except as in the constitution otherwise provided, shall be uniformly assessed for taxation, and the Legislature shall prescribe such regulations as shall secure a just valuation for taxation of all property real and personal.”
The facts in the case, and the question submitted for our decision, involve a consideration of the above-mentioned propositions. Touching the provisions of the federal Constitution, the greater reliance.appears to be placed by counsel upon the one affecting interstate commerce. It has been discussed, and is, perhaps, necessary to be' considered in its effect upon the law, and also in its relation to the facts of the present case. It is conceded by counsel for defendant that a statute which, in its terms, provides for the taxation of property in transit from one State to another, or which, by its terms, seeks to impose more onerous burdens upon property shipped from .a foreign jurisdiction to the State imposing the burden, than is borne by like property in such State, would be void as in conflict with the federal Constitution. It is urged, however, that the act in question is not such a statute. It is argued that live stock brought into the State for the pur
It is too well settled to admit of controversy that property engaged in interstate commerce, by being transported through a State, on its journey from one State to another, would not be subject to taxation in the State through which it is passing. The only question to be considered, so far as the law is concerned, is, whether its necessary result- is the taxation of such property. The proposition is maintained, and is undoubtedly correct, that before property can be taxed it must have become identified and incorporated with the general mass of property in the State. Live stock in this State is, in the greater part, maintained by feeding or grazing upon the natural grasses of the soil. In .the case of some kinds of live stock, they are largely allowed to roam at will, but over territory more or less confined in extent. With sheep the custom is to keep them in convenient flocks or herds, entrusted to herders, and to direct them from place to place, generally, as to a particular herd, in some certain locality, but covering in most cases a rather large and indeterminate territory. They are thus maintained until in proper condition for disposition, shipment, or other purposes of the owner. The only way in which such property becomes identified and incorporated with the other property of the State, is by being turned at large or herded, to be maintained by grazing. Whether the purpose is that they shall remain in the State permanently or not, is not a determining factor. Such a purpose does not exist in the case of the greater proportion of all the live stock in the State. The object of a cattle grower is to ship out of the State his cattle, as soon as they arrive at the proper age, size, or condition. To some extent that is also the pur
In our judgment the act did not encroach upon the exclusive right of Congress to regulate commerce between the several States. Similar statutes have engaged the attention of the courts in other States, and none, so far as we are aware, have been adjudged void as an interference with interstate commerce. Some of them have been pronounced invalid for lack of uniformity in taxation, and as violating constitutional provisions of the State in which they were enacted, but that is a subject for subsequent consideration in this case. A statute of Washington taxing live stock brought into that State to graze, was upheld in all respects, but the question was apparently not presented, nor was it discussed in the opinion of the court, whether any provision of the federal Constitution was infringed upon. Wright v. Stinson, 47 Pac., 761.
A much more serious question is encountered upon a consideration of the peculiar circumstances connected with the presence of plaintiff’s sheep in this State. It is well
In State v. Engle, 34 N. J. L. 425, the property assessed was a lot of coal lying on a pier at Elizabethport which had been mined in Pennsylvania, and sent by rail to Elizabethport to be then shipped by water to other markets for the purpose of sale. That town was the terminus
The case of Connecticut River Lumber Company v. Columbia, 62 N. H., 286, is somewhat similar in its facts to Coe v. Errol supra. A Connecticut corporation doing business in that State contracted for spruce logs to be drawn from Yermont and delivered on the banks of the Connecticut River, and on the river, in season for the spring drive of 1879, to be marked with the company’s mark. There was no other provision for delivery. The logs were cut upon land in Yermont, and were on the ice in said river in the town of Columbia, in New Hampshire, when the tax was assessed, having been delivered there from day to day, during the winter of 1878-1879. They were there for the purpose of being transported by the river to the company’s mills at Hartford, in Connecticut, as soon as the season would permit, there to be manufactured. The court said, “Upon the facts stated, the logs upon which this tax was assessed were in transit, at the time of the-assessment, from Yermont, through this State
A somewhat different case is presented in Brown v. Houston, 114 U. S., 622. Certain coal was mined in Pennsylvania, exported therefrom, and imported into the State of Louisiana, and when the assessment was made by the authorities of the latter State, the coal was afloat in the Mississippi River in the original condition in which it was exported. It had just arrived by flat boats, and was held for sale by the boat load, and thereafter more than half of it had been exported by foreign steamships, and the balance sold into the interior of the State by the flat boat load. Taxes thereon had been paid in Pennsylvania. It was held that being in Hew Orleans, and held there for sale without reference to the destination or use which the purchasers might wish to make of it, the tax thereon was not a tax on either imports or exports, or upon commerce. After asserting that the taxing of goods coming from other States, as such, by reason of their so coming, would be a discriminating tax against them as imports, and would be a regulation of interstate commerce, the court in the opinion said, “But, if after their arrival in the State— that being the place of their destination for use or trade— if, after this, they are subjected to a general tax laid alike on all property within the city, we fail to see how such
The dissenting opinion of Mr. Justice Bradley in the case of Pullman’s Car Company v. Pennsylvania, 141 U. S., 30, has been cited by counsel for plaintiff as containing some expressions applicable to the case at bar. The majority opinion upholds the right of the State to impose a tax upon the capital stock of corporations engaged in transportation within the State, and having at all times a large number of cars in the State, by taking as a basis of assessment such proportion of its capital stock as the number of miles of railroad over which it runs its cars in this State, bears to the whole number of miles óf the road. In announcing the reasons of himself and two other members of the court for a dissent, the learned justice used the following language, by way, evidently, of illustration: “Certainly, property merely carried through a State can not be taxed by the State. Such a tax would be a duty which a State can not impose. If a drove of cattle is driven through Pennsylvania from Illinois to New York for the purpose of being sold in New York, whilst in Pennsylvania it may be subject to the police regulations of the State, but it is not subject to taxation there.” The majority opinion clearly points out the distinction between a tax upon the right to carry on a business and a tax upon the property employed therein, and it was there said, ‘ ‘ The State, having the right, for the purposes of taxation, to tax any personal property found within its jurisdiction, without regard to thé place of the owner’s domicile, could tax the specific cars which at a given moment were within its borders. ”
The case of Brown v. Houston, supra, was followed in Pittsburgh, etc., Coal Company v. Bates, 156 U. S., 577, in which case it was contended that the coal and barges moored in the Mississippi River awaiting orders for their further movement, had not reached any destination. The coal was brought down the river for the purposes of sale. The principle may be deduced from these authorities that
The decisions have been usually qualified by adding, “unless the property is there for use or sale,” or some other equivalent language. Respecting the reference of Mr. Justice Bradley to the driving of cattle through the •State of Pennsylvania, it must appear evident that even if he had said “sheep” instead of “cattle,” such a driving through the Eastern State he mentioned, and Wyoming, would not necessarily consist of the same qualities. Live stock are not maintained in the Eastern States by grazing upon the natural grasses as is the case in this region. If driven through such a State as Pennsylvania, we apprehend the cattle or sheep would be detained at convenient places for feeding, and thus such delays would be only such as would be necessary to properly care for the stock, and the feeding would be merely an incident of the transit; but with the sheep in the case at bar they grazed, and were thus maintained as they traveled, going slowly enough to permit that, and to accomplish such purpose were allowed to spread out over an area a quarter of a mile in width, travel through pastures fenced and unfenced, or across the public domain; and they were maintained while on the journey in the same manner as if they had not been in course of transit at all. The question therefore arises whether the sheep of plaintiff were brought into the State for use, or in the language of the statute to graze; for we assume that if driven into the State for the purpose of being grazed, that is such a ‘1 use ” as would come within the exception noted in the cases which have been referred to. We do not understand that an ultimate design to transport sheep out of the State is at all inconsistent with a purpose of bringing them into the State to graze. The time of the contemplated shipment may be uncertain, or it may be extended for a considerable period into the future. Incidentally, no doubt, that intention should be taken into account, but
It is altogether clear that in case of herd sheep in this country they must according to custom he maintained somewhere by grazing, until the time fixed upon has arrived for starting them upon their journey to some final destination. It may well be, that if it is not desired that they shall reach such destination before a certain time, and that in the meantime the necessity of allowing them to graze and obtain • the benefits therefrom is recognized,. places therefor may be selected by the owner which, will subserve the latter purpose, and at the same time facilitate their final transportation when the occasion therefor shall occur. Such property is migratory; they are almost constantly moving; the character of the natural grasses, and the effect thereon by the grazing of sheep is such that such movement is necessary. They can not be permitted to remain stationary and feed in the same place a very long period of time. Therefore it follows, that, as they must move, their course can be readily directed along the direction in which they are eventually to be taken. In such a case the purpose of grazing is not inconsistent with the idea of a driving or transportation to some distant place. ' Nevertheless the mere fact that in such driving they are also permitted to graze upon the way will not determine, at all hazards, the character of the purpose in bringing them into the State. Each case must, it would seem, depend upon its own facts. It will not do to say that in every case, because an owner brings his sheep into the State to drive them through it to some other jurisdiction for purposes of sale or otherwise, that they are therefore merely in transit; for the reason that such a course might be selected which would consume quite a time in getting out of the State, and at the same time the animals would be maintained by grazing the same as if kept in the State from which they came, or if they had originally been within this State; and all the benefits would be
These considerations seem to us to involve a mixed question of law and fact; and upon reserved questions this court should not decide questions of fact. A direct decision upon the second reserved question is, therefore, not proper for us to render. We have indicated such legal principles, as, in our judgment, should control the determination of that matter. In addition to the observations
If it shall be found, as a fact, reasonably deducible from the agreed statement in the case at bar, that the sheep had been in the first instance brought into the State for use or to graze, and had, on that account, acquired a situs within the State, the observations of the court in the case of Coe v. Errol 116 U. S., 517, would be pertinent. The court had under consideration the right of a town ini Hew Hampshire to tax certain logs which had been brought down the winter before from some point in that State, and placed in the stream, and on the banks thereof in said town, to be from thence floated down the Andro-scoggin River to the State of Maine, to be there manufactured and sold. It was clear that the logs could not be taxed by reason of their intended exportation, as that would amount to laying a duty on exports which would be an. infraction of the federal Constitution. Mr. Justice Bradley, speaking for the court, in the opinion, said, ‘ ‘ Such goods do not cease to be part of the general mass of property in the State, subject as such to its jurisdiction, and a taxation in the usual way, until they have been shipped or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey. * * * It seems to us untenable to hold that a crop or herd is exempt from taxation merely because it is, by its owner, intended for exportation.” And in discussing the subject when the journey must be considered as begun, the learned justice said, ‘ ‘ But this movement does not begin until the articles have been shipped or started for transportation from the one State to the other. The carrying, of them in carts or other vehicles, or even floating them to the depot where the journey is to commence, is no part of that journey.
The third certified question relates to the fact that plaintiff returned his sheep for assessment and taxation for the same year in Utah.
If plaintiff’s property was otherwise legally taxable under the revenue laws of this State, the fact above mentioned would not exempt it in the absence of a statute to that effect. We regard that proposition as too well sanctioned by the authorities to require discussion. Brown v. Houston, 33 La. Ann., 843; id. 114 U. S., 622; Pullman’s Car Co. v. Pennsylvania, supra, dissenting opinion; Coo
Our own constitutional provisions, quoted in an earlier part of this opinion, are invoked in opposition to the law of 1895, and the tax collected from the plaintiff. The proposition contended for is, that, under the statute in question, the assessor was required to proceed at once; and that such peremptory action would be a violation of the constitutional rules relating to uniformity, equality, and due process of law. To sustain the proposition contended for, it is argued that uniformity and equality of taxation means equality and uniformity in the rate, and also in the mode of assessment; that, as there is implied equality in the burden, that can not exist without uniformity in the mode of assessment. It is then urged as the sole ground for the claim that there, is an absence of uniformity in the mode of assessment, that no provision is made for notice, or for a hearing, or a correction of the assessment or tax as in case of property embraced in the regular annual assessment.
An examination of the authorities cited discloses that reference to the mode of assessment as concerns the rule of uniformity, does not mean that, in the case of the assessment of all kinds of taxable property, the same officers shall act, or that the proceedings touching the assessment shall be the same. There is uniformity in the assessment and in the mode thereof, if the same basis of valuation is taken as to all property of like character. The constitution itself provides for the assessment of railroads, and other common carriers, upon their franchises, roadway, rails, rolling stock, and all other property used in their operation, except machine shops, rolling mills, and hotels, by a State board for all State, county, and school district taxes; and also that such board shall fix the valuation each year for the assessment of all live stock. Const. Art. 15, Sec. 10. Property other than that owned
But, is it true that the statutes provide for no hearing or review? It is evident that the law of 1895 must be construed together with other laws relating to the same subject. It seems to have been assumed that the property of plaintiff was assessed and taxed only in pursuance of that statute; but we are unable to assent to that theory. Sections 3845-3849, Revised Statutes, brought into the revision from the laws of 1884, provide for and regulate the assessment and collection of taxes on all personal property brought, driven, or coming into the State prior to the last day of the year. Those provisions were before the court in the case of Frontier Cattle Company v. Baldwin, 3 Wyoming, and were held not to contravene,any of the congressional enactments which constituted the fundamental law of the Territory, and their validity under the State constitution has not been questioned, so far as we are aware. Except as far as they may have been in conflict with the act of 1895, they were in full force during that year. It is required by Section 3846 that personal property coming into the State after the annual assessment, shall be assessed at the same value as property of like kind and character is appraised and valued for the current year; and that the levy shall be the same as that made upon like property for the current year. The assessor - is required to assess such property as soon as possible after he shall obtain knowledge of the existence of such property in the county, and thé assessment is to be made in the same manner as other assessments. The county clerk is required to levy the tax thereon, and enter the same upon the tax list for the current year. The duty of collecting the tax devolves upon the regular county collector of taxes (Sec. 3847).
The statute of 1895 changed these provisions, somewhat, in respect to the levy and collection as to live stock-’ brought into the State to graze. The assessor was sub
Although the statute of 1895 required immediate collection, we do not think, in view of the migratory character of the property, and other provisions of the law which will be adverted to, that any principle of uniformity was, thereby, infringed upon. The courts have gone to great lengths in upholding the authority of the Legislature to classify property for purposes of taxation, and establish such rules, according to the nature and habits of the property, as will insure its bearing its due and proper burden of government.
In Wisconsin the statute was held valid which required the assessors to assess all logs and lumber of non-residents piled upon the banks of streams for shipment in April, although other personal property was not assessed until the first of May. This provision was evidently enacted to guard against the removal of such property
The farther. fact is also pertinent that the interval between the completion of the annual assessment and levy, and the time when taxes are regularly payable, is so short that a requirement of earlier payment of a tax upon migratory animals could hardly be considered unjust or inequitable.
Now, in regard to hearing and opportunity for review, it is further provided in Section 3846 that any person aggrieved hy any proceedings under it and the preceding and subsequent sections, may apply to the board of county commissioners at any general or special meeting, to have the assessment equalized or corrected in any just particular; and the duty is enjoined upon the board to equalize and correct the same as justice may require; and if the party complaining has paid an unjust tax, to refund to him the amount he has paid in excess of what he ought to have paid. We perceive no reason why that regulation was not open to any person in the situation of plaintiff, or any one whose property had been taxed by the assessor under the provisions of the act of 1895, after the annual assessment. Such person would not have been taxed, solely, in pursuance of the last above mentioned act, but under all the provisions and' regulations affecting the taxation of such property as they existed taken together, modifying and controlling each other. If such live stock as was covered by the act of 1895 had been assessed prior to the determination of the rate of levy for the current year by the proper officials, the requirement for immediate collection would have been inoperative in its strict sense, as delay on the part of the assessor, for purposes of collection, would have been necessary until the rate had been fixed. In snch case the command for immediate collection would have been understood to mean as soon as practicable, or immediately after the rate had been determined upon. In that case, moreover, the person taxed would have had the same opportunities that all
As long as the rate and method of valuation are the same as in case of other property, we are unable to conceive of any valid reason why a statute affecting the taxation of a peculiar class of property may not be enacted to guard against its escape therefrom. Absolute equality in taxation is an impossibility. The late Mr. Justice Miller of the federal Supreme Court said, in one of the opinions of that court, that it was an ‘‘unrealized dream.” In the case of Commonwealth v. Electric Light Co., 145 Pa. St., 147, the court said:’“Where the measure of value and the rate are uniform and applicable to all members of a given class, the incidental hardship and inequalities must be borne.” And the supreme court of Texas expressed itself as follows: “ Taxes are said, within the meaning of the constitution, to be equal and uniform; when no person or class of persons in the taxing district, whether a State, county, or other municipal corporation, are taxed at a different rate than are other-persons in the same district upon the same thing, and where the objects of taxation are the same by whomsoever owned or what-eyer they be.” Norris v. City, 57 Tex., 635. The'difficulty is so apparent that we shall not attempt to formulate a general definition of equality and uniformity in taxation applicable to all cases, as such words are used in the constitution. Neither is it requisite in this , case that we should do so.
In 1895 the Legislature of the State of Washington enacted a law very similar to our statute of the same year. It was provided thereby, that when any cattle, horses, sheep, or goats are driven into any county of the State for the purpose of grazing at any time after the first Monday in April, in any year, they shall be liable to be assessed for all taxes leviable in that- county for that year the same as if they had been in the county at the time of the annual assessment; and it was made the duty of the assessor to assess the same; and the taxes became due upon
The fourth question reserved for our decision is, in substance, whether the payment of the tax by plaintiff, under the evidence, was voluntary, or otherwise, and whether it was so made as would authorize its recovery if illegal. The facts as agreed to, are that the money was paid, after a refusal to pay the same upon a demand, and to prevent the seizure and sale of plaintiff’s property, and the damages which would thereby accrue to the plaintiff. If that is true, we do not perceive what difference it makes, whether the threat made by the collector was that he could take enough sheep, or that he would do so. The concession that the payment was made to prevent the seizure, implies that seizure was intended or imminent, and that both parties so understood it. Under such a statute as that of 1895, requiring the same officer to assess, levy, and collect the taxes, giving him all the power of collecting officers, .and applying to property of the character upon which these taxes were paid, it would not take very strong evidence of force to show a payment of the tax to be involuntary, particularly so when the statute, as in Section 3846, enjoins upon the commissioners the duty of refunding such an amount as they should discover to be unjust. In our judgment the payment was made under such circumstances as would authorize the recovery if the tax should prove to have been illegal.
The seventh certified question is, “For the recovery of taxes paid in the manner set forth in this case, against
Plaintiff relies upon the cases of Powder River Cattle Co. v. Board of Commissioners, 3 Wyo., 588, 603; and Board of Commissioners v. Searight Cattle Co., 3 Wyo., 776, wherein it was held that actions to recover back taxes collected by the county collector of taxes, on account of State, county, and school district' taxes, can only be maintained against the officer making the collection. It is clear that unless manifest error has crept into a former decision of the court, and works injustice, it should not be departed from. A mere doubt on our part concerning its correctness is not sufficient to require a review thereof. It is equally well settled that if it appears to be radically unsound, and subserves no useful purpose, but on the contrary establishes a hardship which is not within the manifest contemplation of the law, and, moreover, if no injurious results will be likely to follow a reversal, no principle of stare decisis interferes with a reconsideration of the principle involved, and a reversal of the doctrine formerly announced.
In consequence of a deep feeling that nothing but hardship and injustice flows from the law as construed in those cases, and especially as the late Chief Justice dissented therefrom in vigorous opinions, we deemed it wise and expedient to examine the question anew, in the endeavor to discover whether the statutes are reasonably susceptible of the construction given them in the cases aforesaid.
It may be premised that no provision has ever been made by law for a reimbursement to the collecting officer, should a recovery be maintained against him; and that the invalidity which may require the return of a tax to the one paying it, may have been the result of the action of other taxing officials, and even of the board itself in ordering the levy. The statute, then, which imposes such onerous responsibilities upon the public servant who obeys the mandates of the tax warrant, should be unmistakable. It would be far better and more consonant with equity, that
The statute providing the method of legal procedure to recover back taxes which may have been illegally collected, is Section 3055 Rev. Stat., and that part relating to such subject reads as follows: “Actions to recover back taxes and assessments must be brought against the officer who made the collection, or, if he is dead, against his personal representative; and when they were not collected on the tax list, the corporation which made the levy must be joined in the action; Provided, that when the money derived from said taxes or assessment has been actually jjaid over to any municipal- corporation for whose use and benefit it was levied or collected, then an action shall be brought against said municipal corporation to' recover said taxes or assessments.”
That part of the section precéding the proviso was taken from Ohio, in which State the action was in all cases to be brought against the collecting officer, unless not collected on the tax duplicate. The only taxes in this State and possibly in Ohio which would not be placed on the tax list, would be local taxes for improvements, such as assessments to construct sewers in the city of Cheyenne, and in other instances where taxes are assessed according to benefits. It is evident that no taxes are collected for State or county purposes except on the tax list, but the party to be joined in an action for the recovery of taxes not on the list is described as the “ corporation” without the qualifying word “municipal ”; yet it is only such a corporation as a city or town which could possibly be embraced
The first portion of the section having been imported from Ohio, it will be well to notice some of the other relative provisions of the statutes of that State then in force. In the first place, all the regular taxes, which go upon any tax list of the State, county, school district, and of any city, village, or hamlet within the county, go upon one list prepared by the county auditor, and all such taxes are collected by the county treasurer. The auditor is required to open an account with each township, city, hamlet, and school district, and after each semiannual settlement which he makes with the treasurer, to credit each with the net amount collected for its use, and, on the application of the treasurer of each such subordinate corporation, to give him a warrant on the county treasurer for the amount then due. (Sec. 1047 R. S. O., 1880.)
It seems that the treasurer is charged with the taxes upon the list, and he may remain charged with an uncollected tax (Sec. 1103); but the auditor may deduct an erroneous tax, giving a certificate thereof to the taxpayer for presentation to the treasurer. (Sec. 1038.) The treasurer may return an account of uncollected taxes with his reasons therefor (Sec. 1101). Finally, it is provided that in ease of any recovery from him, on account of the collection of the public revenue, he shall be allowed and paid out of the county treasury counsel fees and other expenses of his defense in the suit, and the amount of any
It will be thus observed, that, in Ohio, the system is made plain and harmonious. The treasurer collects for all taxing authorities, and in case of damages recovered against him, is given a sure indemnity. At the same time a convenient method is provided, whereby a taxpayer who has been unlawfully assessed may secure a return of his money.
At the time our Legislature adopted the provision, in respect to actions to recover taxes illegally collected, it was undoubtedly perceived that the revenue laws were somewhat dissimilar to those of Ohio, that a treasurer was. not given indemnity when he had dispensed the funds collected by him, and not desiring to interfere, or alter the provisions already in force concerning the collection of the public revenue, devised the more simple method of adding the proviso, to the effect that, after the municipal corporation for whose use and benefit it had been collected had received the tax, it should be made the respondent in an action for a recovery of such tax. We think that a county is included in the designation “ municipal corporation ” as used in the proviso.
While it is true that in a restricted sense, and possibly, by way of distinction, the term “ municipal ” as applied to a corporation is generally understood to refer to such subordinate organizations as a city or town, nevertheless, it is not improper, nor at all uncommon in legal parlance, to include a county within the designation ‘£ municipal corporation.” That was conceded in the majority opinion in the Powder River Cattle Company case.
A further obstacle to declaring that the county is.
The words quoted, however, must receive a reasonable construction. In view of other statutory provisions to which reference will be made, we are not inclined to apply to such words any narrow and confined meaning. As to State taxes, the county is made responsible for all which are levied, and it is not permitted to receive credit except for such assessments as are certified to be double or erroneous. A particular tax is not returned itemized to the State, but payments are made on account of the county’s actual statutory liability. Such taxes are in a certain sense collected for the use and benefit of the county. It could not escape settlement with the State by an absolute refusal to collect the taxes. To relieve itself from the burden imposed upon it by law, it must collect and pay over the taxes. Whatever may be the regulations existing between the county as an organization, and the school districts within its boundaries, it levies taxes for the support of all the schools, and the special district taxes which have been legally voted by each district. The treasurer collects them, and is the custodian thereof until lawfully paid out to the district treasurers upon the apportionment and order of the county superintendent as to the common school tax, and according to law as to the special district taxes. Before school district treasurers are entitled to receive any of the money, they are required to furnish bonds to be approved by the board of county commissioners in each case, who also fix the amount thereof. The school money is referred to in the statutes as in the
Section 3821 Rev. Stat. was thought to be in conflict with the statute above considered. We are not of that opinion, but believe that it harmonizes with it, and tends to explain it. The two sections should be so construed that both shall stand, if possible. That section is as follows: “ In all cases where any person shall pay any tax, or any portion thereof, that shall thereafter be found to be erroneous or illegal, whether the same be owing to clerical errors or other errors, the board of county commissioners shall direct the treasurer to refund the same to the taxpayer, or, in case any real property subject to taxation shall be sold for the payment of such erroneous tax, the error in tax may at any time be corrected as above provided, and shall not affect the validity of the sale, but such property shall be redeemed by the county as hereinafter set forth.”
The provision for redemption referred to is found in Section 3833, which, in substance, requires the county to repay to a purchaser at tax sale of any land sold by mistake or unlawfully, the amount to which he would have been entitled had the sale been legal; and the treasurer, unless the invalidity is not his fault, is made liable to the county for the amount. These two Sections, 3821 and 3833, must be construed together. The former impresses
Now, it is reasonably clear that the thing to be refunded is the tax. The statute does not say that the same shall be returned by a payment out of the general fund of the county, or out of any particular fund. The tax is to be refunded. That tax will have gone into various funds. The command, therefore, as I understand it, is to take the proportionate amounts from each fund. This conclusion was reached in Iowa under a similar statute. Lareman v. Des Moines, 29 Ia., 310; Stone v. County, 51 Ia., 522. See also Coal & Iron Co. v. Co. Comr’s., 59 Md., 255. The erroneous character of the tax may be adjudged by the courts in a suit for a recovery of the amount paid, or by some other authorized proceeding, or the board itself may discover that it is invalid. In either event it is to be refunded to the person entitled thereto. The Legislature having constituted the county authorities and officers the agency to assess, levy, and collect the tax, and having designated the county treasurer the custodian of the proceeds, at least temporarily in all cases, it was certainly entirely competent for the law-making power to confer upon the board the authority, nay, more, to impose upon it the duty of directing the custodian to return the tax, and in doing so to take it from the respective funds into which it had gone. It might have been expressed by language more in detail, but we think it has done so by the general terms employed. Suppose the requirement had been that the treasurer refund the tax. Could there be any question but that he should take it from the funds of which it formed a part ? Where is the distinction, if the legislative command is that the action of the treasurer
Whether the amount of interest and costs which may be paid to a purchaser of lands at tax sale, and which is required to be paid to him by the county on discovery of the illegality of the sale, is to come out of the different funds, or is to be paid by the county itself, to be reimbursed by the liability of the treasurer if it exists, is a question which need not now be determined.
It is not clear to us upon what theory it can be truly said that, as to State taxes, the county should not be compelled if illegally exacted to refund them. The county is a debtor to the State for such taxes; but for all erroneous taxes charged against it, the law requires that it shall be credited; and this court has held that such credit shall be extended upon its account whenever it is certified to the proper State officer. (State v. Board of Com’rs Laramie Co., 4 Wyo. 313.) It is therefore manifest that, should the county refund such erroneous tax, it would be entitled to a credit upon its account with the State.
Under the decisions in the Powder River Cattle Company, and Searight Cattle Co. cases, a person who has paid an unlawful State and county tax is granted a remedy, but one which consists in pursuing an officer individually, who may only have done his duty skillfully and faithfully; and if that official is unable to respond, the taxpayer is still remedyless, and the right given to him is an empty one. If the amount is collected from the officer, or his representative, they are caused to bear a loss
The effect of a decision of the Supreme Court construing a statute, renders it the law for the time being as so construed. Parties have a right to act upon such a decision, and no injury ought to be allowed to result, by reason of a dependence thereon, if the decision is subsequently changed, any more than in case of a repeal of a statute. Hollinshead v. Von Glahr, 4 Minn., 190. Until the decision now rendered, since the announcement of the court in the cases hereinbefore referred to the law of the State has been as set forth and adjudged in those cases, at least to the extent that no one should be injured by relying thereon. Consequently, any case which has been brought against the collecting officer, in his individual capacity, should be permitted to proceed without objection on that ground. This case is not against the officer individually.
We have not arrived at the conclusion to depart from the rule heretofore announced, except after mature reflection, and a profound sense of an imperative necessity. This disposes of all the questions except the eighth, which, under our former decisions, is not a proper one for reservation.
To the second question, we have stated in this opinion the legal principles which should apply to a consideration of the fact whether or not the animals were driven in for grazing purposes; it is not proper for us to determine the fact itself in this kind of proceeding.
To the third question; our answer is in the negative.
To the fourth question; the payment was involuntary.
To the fifth question; the plaintiff was afforded by law an opportunity to be heard, as set forth in this opinion. The taxes were not illegal for any reason mentioned in such question.
• To the sixth question; Chapter 61, Session Laws 1895, was constitutional.
Our answer to the seventh question has been given above.
