6 Mont. 215 | Mont. | 1886
This is an appeal from a judgment and an order overruling a motion for a new trial. The action was brought by the respondent, as treasurer of Dawson county, to recover the sum of $1,503.98 alleged to be due from the appellant for taxes for the year 1884, and the additional sum of $150.39, being ten per cent, of the sura due for taxes as a penalty, as provided for by law. The cause was tried by the court, a trial by jury having been waived. The findings by the court were as follows: “The court finds for the plaintiff, and finds that the treasurer made the assessment of his property in the sum of seventy-one thousand three hundred and eighty dollars ($71,380). That the tax due thereon is the sum' of one thousand five hundred and three dollars and ninety-eight cents ($1,503.98), and that the penalty thereon now due is the sum of one hundred
The questions presented for our consideration are: 1. Does the evidence support or justify the findings? 2. Is the judgment consistent with the findings? The correctness of the judgment in this case depends upon whether or not there was a substantial compliance with the provisions of the law in relation to levying and assessing the tax, and adding the penalty for failure to pay the same if properly levied and assessed, on or before the expiration of the time specified by law. There was no finding by the court that the tax was levied as required by law, but .the complaint avers, and the answer admits, that upon the 7th day of January, 1884, the board of county commissioners of Dawson county levied the requisite taxes for said year, to wit, the sum of twenty-one mills on each dollar of the valuation. R. S. sec. 1019, 5th div. Neither is there a finding by the court that John J. O’Brien was the assessor of Dawson
Section 1011, 5th division of the Revised Statutes, provides that the district assessor of each county shall assess and value all property required by the provisions of this article to be assessed and valued; and between the 1st day of February and the 10th day of September in each year, shall demand of each tax payer a list as hereinafter provided of his or her or their property; and if the said list be not rendered under oath at the time such demand be made, the assessor shall proceed to list and assess the property of any such tax payer according to his best knowledge and information, and shall add twenty per cent, to the value thereof. The failure of the assessor to list and assess the
Cross-examined: “ I handed it in immediately to the deputy assessor. I went out to assess all the ranches on the Bed Water. The defendant’s ranch is on the Bed Water. He claimed that he had paid taxes in Texas, and would see the county commissioners as to the matter. I don’t know whether the cook was in his employ. When I got information from him I made out the list —-the 3d day of November, 1884. Carter was not then in this county; he could not be found; I looked for him then.”
Bedirect: “ I asked Carter, in September, 1884, for a list of his property. He thought he ought not to make out one.”
This state of facts is, we think, sufficient to render an assessment by the assessor valid. When it appears that the assessor, on the 1st of September, went to the appellant’s ranch to make the assessment, and the property not being
"When such a state of facts appears, the failure to write the words in the assessment roll by the assessor, when the list is made by himself, together with the words “absent or sick,” or the words “ refused to list,” or “ refused tó swear,”
This finding was probably made so as to bring the assessment within the provision of section 443, supra. But we are of the opinion that the failure to deliver the list and assessment to the clerk, when the tax list had passed from him into the hands of the treasurer, did not render the assessment invalid. It is claimed that the appellant had no opportunity to appear before the board of equalization; but the evidence shows that an attempt at an assessment was made on the 1st of September, which was prevented, as shown above, by the representations of the appellant. He should either have shown his exemption from taxation by
It appears that the assessor waited till the 3d of November before he made the list, and such list did not come into the treasurer’s hands till about the 18th of November. Between this period and the 1st of December, when the tax became due and payable, the twenty days within which the law directs that the treasurer shall notify the tax payer of the amount of his tax had not expired. The commissioners are required to meet as a board of equalization on the third Monday of September, or at an}»- time thereafter when it may become necessary. Sec. 1020, 5th div., B. S. The last meeting of said board was upon the 16th of October. The presumption, in the absence of anything to the contrary, is that public officers have performed their duties, and in this case that the commissioners met as often as they had reason to believe that it was necessary for this purpose. If, therefore, the appellant was deprived of his opportunity to appear, before the board of equalization, he contributed thereto in great part by his own acts.
When the tax list did not contain the assessment when i-t was delivered to the treasurer by the clerk, and did not so contain the same till it was placed therein by the treasurer as the receipt of the list from the deputy assessor only about thirteen days before the tax became due and payable under the law; and when this state of things was in great measure brought about by the neglect and refusal of the appellant to list his property,— how could the treasurer be expected to notify him of his assessment within the twenty days of the delivery to him of the tax list as required by law? The finding of the court, supported by the evidence, shows an effort by the treasurer to notify the appellant of his assessment in so far as he was able so to do. All the circumstances of the’ case -would indicate an effort at evasion . by the appellant of the payment of his tax. The
The' judgment is not inconsistent with the findings. Chumasero v. Vial, 3 Mont. 316.
The evidence and findings fully sustain the judgment.
Judgment affirmed, with costs.