85 F. 811 | U.S. Circuit Court for the District of Washington | 1898
The object of this suit is to restrain the treasurer of Lewis county from proceeding to sell lands in said county, claimed by the plaintiff as part of the grant to the Northern Pacific Railroad Company, to aid in the construction of its main and branch lines, pursuant to a judgment rendered by the superior court for Lewis county against said lands for delinquent; taxes for the year 1893. The judgment is a judgment in rem, ordering that the lands he sold, and was rendered at a time when all the property and assets of the Northern Pacific Railroad Company situated in this state, including said lands, were in the legal custody of receivers appointed by this court In ruling upon questions raised in settling the issues in the pleadings, I expressed my opinion, based upon the decision of the supreme court; of the United States in the case of In re Tyler, 149 U. S. 164-169, 13 Sup. Ct. 785, to the effect that a collector of taxes cannot legally execute process for the collection of delinquent taxes by sale of property in the custody of a receiver appointed by a United States court. At the same time I gave a plain intimation that, upon an application to this court, the receivers would be ordered to pay all taxes legally chargeable against the property of the railroad company. At the time of giving said opinion, I believed and ruled that lands claimed by the railroad company, as part of its land grant, which had not been patented prior to the time of making the annual assessment upon which the tax was levied, were not subject to taxation by the state. The question as to the right of the state to tax (hese lands has since been determined by decisions of the supreme court of the
I deem it unnecessary to take notice of some of the minor objections to the proceedings of the county officers in making up the assessment roll and tax levy for the year 1891. Some of the objections are necessarily fatal, and it is sufficient for me to point them out as the grounds for my decision. The statute of this state in force at the time of making the assessment required the assessor to list all lands in the county subject to taxation, in an assessment book containing a description of each tract of land listed, the name of the owner of each tract, if known to the assessor, the number of acres in each tract, and the valuation placed thereon. These requirements were not observed by the assessor. The assessment book, and the tax roll made therefrom, contained but an imperfect description of the lands in controversy, and, instead of being listed as the property of the Northern Pacific Railroad Company, the names of other persons are given as owners. The rail.road company had previously made contracts to sell these lands, but '•said contracts were not conveyances of the legal title; and it is not alleged in the answer, nor shown by any testimony, that the persons .named as owners were the purchasers, nor that the owner of the lands was unknown to the assessor. There is good reason to presume that <the assessor did know that the Northern Pacific Railroad Company was the owner, for the contrary is not alleged; and it is shown by the testimony of the deputy assessor, who made up that part of the assessment •book containing the list of these lands, that he listed the lands from statement furnished by Paul Schulze, who was then Western land agent of the Northern Pacific Railroad Company. The name of the owner is necessary to a valid assessment of real estate under the statute in force in 1891, because it is, in contemplation of the law, an essential part of the notice of the initiation of proceedings to create a •tax lien. The decisions of the supreme court of this state, holding that where an assessor has failed to comply with the requirements of the statutes of this state, providing that in listing real estate for taxation the name of the owner must be shown, preclude any discussion ;of the question in this court. I must accept the decisions in the cases of Baer v. Choir, 7 Wash. 631, 36 Pac. 286, and Vestal v. Morris, 11 Wash. 451, 39 Pac. 960, as being rules of property in this state.
> The; original illegality in the assessment book for 1891, as affecting th$ lands, in- controversy, has not been cured by the judgment rendered
The act authorizes the court to allow all amendments wltich by law can be made in any personal action pending in such court, and provides that no assessment of property or charge for any of said taxes shall he considered illegal on account of any irregularity in the tax list or assessment roll, or on account of the assessment rolls or tax lists not having been made, completed, or returned within the time required by law, or on account of the property having been charged or listed in the assessment or tax list without name, or any other name than that of the original owner; and no error or informality in the proceedings of any of the officers connected with the assessment, levying, or collecting of the taxes, not affecting (he substantial justice of the tax itself, shall vitiate, or in any manner affect, the tax, or the assessment thereof; and any irregularity or informality in the assessment: rolls and tax lists, or in any of the proceedings connected with the assessment or
For all of the above reasons, it is my opinion that the complainant is entitled to a decree granting an injunction against the treasurer of Lewis county, as prayed for in the amended bill of complaint.’