172 P. 474 | Utah | 1918
This is an action to enjoin the collection of a tax alleged to be illegal. The only material question involved relates to the manner of levying the tax by the county commissioners of Iron County, hereinafter called the commissioners.
On the 7th day of August, 1916, the commissioners passed the following resolution:
“Be it resolved by the board of county commissioners of Iron County, state of Utah, convened in regular session of Monday, August 7, 1916, that there be and is hereby levied upon all of the property in Iron County for the year 1916, for the purposes hereinafter set forth, the amounts defined as follows: 4.4 mills on each dollar for state and state school purposes. 5.5 mills on each dollar for county school puposes. .1.5 mills for general county purposes. 1.3 mills for county road purposes. .2 mills for county indigent purposes, and dependent mothers.”
The remainder of the resolution being immaterial is omitted. The language quoted indicates the form adopted in making the levy. The tax thus levied was extended on the assessment roll, and the defendant authorized to collect the same. Plaintiff paid all the taxes thus levied, except the item of 1.3 mills for county road purposes, and refused to pay that on the alleged grounds that the levy as to that was illegal and void. Sale of its property for the payment of the tax being threatened by the defendant, plaintiff commenced this action to enjoin the collection. The facts were stipulated, from which it appears that the only material question involved is the validity of the item of tax which plaintiff refused to pay. The case was tried to the court without a jury. Judgment was rendered for plaintiff. Defendant appeals.
Defendant assigns many errors, none of which need be considered, except the third and fourth, alleging that the court erred in its decision and in rendering judgment for the plaintiff.
Comp. Laws Utah 1907, section 2593, as amended in Sess.
But the concrete question at the bottom of this controversy between the parties is: Can the commissioners, in the order making the levy, designate a certain number of mills for general county purposes, and in another item of the levy designate a certain number of mills for county road purposes; the aggregate sum not exceeding the amount the commissioners may levy for general county purposes? In other words, it is conceded that the construction, maintenance, and repair of county roads is a county purpose for which the county commissioners may expend money arising from the levy made for general county purposes, and that the amount of the levy in this case for general county purposes, and the amount levied for county road purposes, in the aggregate, do not exceed the amount the commissioners, under the law, might have levied for general county purposes. The controversy, then, in the last analysis is: Can the commissioners, in making the levy for general county purposes, separate it into two or more items,
Respondent insists such levy is illegal and void as to the item designating the special purpose. -Appellant resists this contention, and insists that such levy is at most a mere informality, harmless in its effect, and therefore not illegal and void. In this state there is no form for making a tax levy established by law. The limit for which the levy may be made for certain purposes is fixed and established, beyond which the commissioners may not go. As long as they keep within the limit fixed for the purposes named, and no one is substantially prejudiced by the form of the levy, we cannot understand why the levy should be considered void, in whole or in part, simply because it separates the levy into two or more items, one or more of which designates the specific purpose intended. Of course, if the statute of the state provided a specific form for making a levy, even though we might not be able to conceive a good reason therefor, we would in all probability feel bound by the terms of such statute, for we agree with counsel for respondent that laws relating to taxation are generally strictly construed against the authority levying the tax; or if statutes similar to ours had been construed by reputable authority showing that what appellant contends for here is recognized law in other states, such authority would at least have persuasive influence with us in arriving at a determination of the question under review. But, as before stated, we have no form for a levy prescribed by statute, neither have we been cited to any authority which in our judgment supports respondent's contention. Such'authorities as have been cited and relied on by respondent will receive brief notice before we conclude this opinion. If the levy in this case had read “2.8 mills for general county purposes,” and omitted “county road purposes” altogether, respondent would have had no fault to find with the levy thus made, notwithstanding its taxes would have been exactly the same as under the levy complained of. We do not wish to be understood as commending the form of levy adopted by the commissioners in this case, nor do we intend to prescribe what we may think would
The authorities cited by respondent, to the effect that laws relating to taxation should be strictly construed against the taxing power, are acknowledged and approved. We recognize that as the law, and would readily apply it in the present case, if there was anything in the case to which it could be applied. As long as there is
It is not necessary to consider these cases in detail. We have carefully examined them and are unable to apply them to the question involved in this appeal. They are generally cases in which the taxing power has clearly exceeded its authority, either as to the amount of the tax or the purpose defined by law. As to such eases, there can be no legitimate controversy. If in the present case the aggregate amount of the levy of the two items referred to had exceeded the limit allowed by law for general county purposes, the levy as to the excess would unquestionably be illegal, or if either item was
There seems to be a dearth of authority concerning the exact question before the court. Appellant, however, cites one case from Nebraska which seems to be in point. B. & M. R. R. Co. v. Co. Commissioners of Lancaster Co., 12 Neb. 324, 11. N. W. 322, was an action to enjoin the collection of a tax. The case was referred to a referee, who heard the evidence and reported conclusions of fact and of law to the trial court, which rendered judgment in favor of the commissioners. Plaintiff appealed. In that case the commissioners had power to levy a tax of 10 mills on the dollar for general county purposes, which included support of the poor. In making the levy they designated 7% mills on the dollar for general county purposes and 2y2 mills for “poorliouse fund.” The plaintiff objected to the item denominated “poorhouse fund,” for the same reasons that plaintiff here objects to the item for “county road purposes.” The opinion of the appellate court is very brief. The following excerpt illustrates the views of the court:
'‘The ‘general fund’ of a county, as its name implies, is one devoted to a variety of uses, and its expenditure is left mainly to the discretion of the hoard of county commissioners. The amount which may be raised for this fund the Legislature has wisely restricted; the limitation being, as we have seen, 10 mills on the dollar of taxable property. Now in the performance of the duty of determining the amount that should be raised within this limit, the commissioners must necessarily make an estimate of the probable needs of the county for the current year in the way of legitimate expenditures. Having done this, and the total rate being ascertained, suppose that, in making the levy, instead of grouping the several items under the comprehensive head of ‘general fund,’ as is usually done, and as the statute above quoted evidently contemplates, they are set forth in detail, giving the amount estimated for each, would the tax therefore be illegal? We think not; so long, at least, as no item is included not proper to be satisfied from the general fund of the county. It would be at most but an informality, in no way invalidating the levy. The ruling of the referee was correct, and was properly sustained by the court.”
