32 Mont. 433 | Mont. | 1905
delivered the opinion of the court.
This is an appeal from an order of the district court granting an injunction pendente lite. The object of the suit is to restrain the county treasurer of Lewis and Clark county from selling certain real estate belonging to plaintiff for delinquent taxes assessed against such property for the year 1902.
A number of minor questions are suggested which need not be considered. The principal contention is embodied in the query: Was section 3698, Political Code, as amended by an act of the Fifth Legislative Assembly, approved March 3, 1897 (Session Laws of 1897, page 195), constitutional? (This section and section 3699 were repealed by an Act of the Eighth Legislative Assembly, approved February 6, 1903: Session Laws of 1903, page 1, chapter 1.) If this section was con
Section 3698 above, as amended, among other things, provides: “That in all counties in the state of Montana which now have, or those which may hereafter acquire, a total assessment of eight million dollars or more, the judge of the district court, or if there be two judges in the district then the senior judge of said district court shall on or before the second Monday of February of each year, designate three reputable citizens who shall be residents and taxpayers in the county for which they are appointed, who shall constitute a board of appraisers whose duty it shall be to fix valuation of real estate in the county for the purpose of assessment by the county assessor, which valuation so fixed by said board of appraisers shall constitute the value or True value’ of such real estate. * * * The assessor, in making up his assessment list of said estate, is hereby prohibited from assessing any greater or less value upon any piece of real estate than that so fixed by said board of appraisers. * * * It shall be the duty of the county assessor to attend the meeting of the board of appraisers and give such board all the information in his possession concerning property to be assessed and its valuation.”
The contention of the plaintiff is that, as the Constitution (Article XVI, section 5) provides for the election of an assessor in every county, no other person than such assessor can fix the valuation of property for revenue purposes, and urges that this question was determined in Mutual Life Ins. Co. v. Martien, 27 Mont. 437, 71 Pac. 470. In the Martien Case this court construed that portion of section 5, Article XVI, above, which reads as follows: “There shall be elected in each county * * * one treasurer, who shall be collector of taxes”; and held that this language, when read in the light of section 29, Article III, of the Constitution, prohibited anyone else from being such collector. That case proceeded upon the theory that, as the Constitution had designated one particular officer as collector, or, in other words, had defined one duty of
' The provision of the Constitution relative to the office of assessor found in section 5, article XVI, above, is merely that there shall be elected in each county one assessor. That section provides: “There shall be elected in each county the following officers: One county clerk, who shall be clerk of the board of county commissioners and ex-officio recorder; one sheriff, one treasurer, who shall be collector of taxes; * * * one county superintendent of schools; one county surveyor; one assessor; one coroner; one public administrator. * * *”
It will be observed that there is no attempt to define all or any of the duties of any of these officers, except the county clerk and treasurer. Of the county clerk it is said, he shall be clerk of the board of county commissioners and ex-officio county recorder; and of the treasurer it is said, he shall be collector of taxes. The election of the members of the board of county commissioners is provided for in section 4 of Article XVI, and the election of the county attorney in section 19 of Article VIII. Section 15 of article XII provides that the board of county commissioners of each county shall constitute a county board of equalization, and further provides: “The duty of the county boards of equalization shall be to adjust and equalize the valuation of taxable property within their respective counties. Each board shall also perform such other duties as may be prescribed by law.”
In the matter of legislation the people, through the legislature, have plenary power, except in so far as inhibited by the Constitution, and the person who denies the authority in any given instance must be able to point out distinctly the particular provision of the Constitution which limits or prohibits the
Does the mere enumeration of county officers prohibit the legislature from defining their duties ? Of course, in so far as the Constitution has defined those duties, as in the instances mentioned — of the county clerk, treasurer, and board of equalization — the legislature may not enact any law in conflict therewith. So far as those duties are not prescribed by the Constitution, they may be by legislative enactment (Territory v. Carson, 7 Mont., at page 428, 16 Pac., at page 573), and in the Political Code the duties of the several county officers are particularly specified. If this is not so, this inquiry becomes pertinent: What are the duties of the sheriff, if those duties may not be defined by law ? That office is created by the Constitution, but the duties appertaining thereto are in nowise mentioned. And the same inquiry is likewise applicable to the office of superintendent of schools, coroner, surveyor, public administrator, or assessor. The mere suggestion of the question demonstrates the confusion which would result from holding that these officers are entirely free from legislative control, or that the legislature may not prescribe the duties required of them, within the limitation that it may not entirely denude an office created by the Constitution of its functions and leave an office in name only.
But may the legislature create new county offices and devolve upon them duties respecting the management or control of county affairs ? Section 6 of Article XVI of the Constitution provides: “The legislative assembly may provide for the election or appointment of such other county, township, precinct and municipal officers as public convenience may require,” etc. Acting under the provisions of this section, the offices of board of appraisers and county auditor were created and their respective duties defined. The office of board of appraisers was originally created by an Act of the Second Legislative Assembly, approved March 6, 1891 (Session Laws of
If the contention of the plaintiff prevails, no one else but the assessor can fix the valuation to the property in controversy, and the only legitimate inference from this is that his appraisement must be conclusive. But such a contention is distinctly antagonistic to section 15, Article XII, of the Constitution, which makes the board of equalization a supervisory body with authority to raise or lower any valuation placed upon a particular piece of property by the assessor. So that there cannot be any merit in the claim that a taxpayer has the right to have his property taxed upon the valuation made by the assessor.
But, furthermore, section 16 of Article XII of the Constitution provides: “All property shall be assessed in the manner prescribed by law except as is otherwise provided in this Constitution. The franchise, roadway, roadbed, rails and rolling stock of all railroads operated in more than one county in this state shall he assessed by the state board of equalization and the same shall be apportioned to the counties, cities, towns, townships and school districts in which such railroads are located, in proportion to the number of miles of railway laid in such counties, cities, towns, townships and school districts.”
We are satisfied, in view of these provisions of our Constitution, that the legislature was acting within its authority in creating the board of appraisers, and, in clothing such board with authority to fix the valuation upon real property in the-first instance, it did not contravene any provision of the Constitution.
We think the enactment of the statute a valid exercise of legislative power, and that the district court erred in holding to the contrary. The order granting the injunction is reversed, and the cause is remanded.
Reversed and remanded.