Ricketts v. Crewdson

79 P. 1042 | Wyo. | 1905

Lead Opinion

Beard, Justice.

Plaintiff in error commenced this action in the District Court of Crook County, alleging in his petition that defendant in error was the treasurer and collector of taxes of said county; that plaintiff duly returned and listed for assessment and taxation all of his personal property and live stock in Crook County for the year 1903, and on the 30th day of December, 1903, he tendered to the defendant at his office the sum of $366.69 and demanded a receipt in full for all of the taxes due from the plaintiff for said year 1903 on the live stock and personal property of plaintiff; but that the defendant refused and still refuses to accept such tender and to issue receipt therefor.

That on June 24, 1903, the Board of County Commissioners of said county, acting as the Board of Equalization, unlawfully, illegally, erroneously, unjustly and arbitrarily and without sufficient evidence or cause, added to the assessment roll and returned for taxation for said year against the plaintiff 300 head of cattle and assessed the value thereof at $4,800; that said increased valuation was added to the tax list for said year and taxes levied against plaintiff therefor.

That on July 27, 1903, plaintiff appeared before said board and protested and objected and offered evidence to show that the increase and raise of 300 head of cattle against plaintiff was excessive, unjust, erroneous and unwarranted, and asked to have the same stricken off, which the board refused to do.

That during the year 1903 plaintiff was the owner of certain real estate. (Here follows the description, amounting to about 1,160 acres of land.)

That the assessor of said county returned the real estate of plaintiff for assessment and taxation for said year erroneously, describing the same. (Here follows the description as returned bjr the assessor, the error being in four description, as follows: N. J4 S. W. J4, Sec. 33, was returned as N. S. E. %. N. ^2 S. E. Sec. 32, was returned as N. S.W. y. E. S. W. y, Sec. 6, was returned as S. %/2 S. W. y; and S. S. W. y, Sec. 15, was returned as S. E. y S. W. %, omitting S. W. y¡. S. W. y. The balance of the land appearing to be correctly described.)

That taxes were levied on all of said lands and a special school tax of yy2 mills on the dollar valuation in School District No. 10, when in fact 480 acres (described in the petition) of said land are situated in School District No. 9, where the special school tax is but one mill on the dollar valuation; that said real estate is assessed en masse, and that all of said tax levy on said real estate is erroneous, illegal and void.

That on December 30, 1903, plaintiff tendered the full amount of money for the taxes assessed and levied against his real estate in said county for the year 1903 and demanded a receipt in full therefor, which said tender the defendant refused and still refuses to accept.

That defendant threatens to levy upon and sell plaintiff’s personal property and to advertise and sell his lands for said tax to the great and irreparable injury and damage to plaintiff.

That plaintiff lias no full, complete, speedy and adequate remedy at law.

Plaintiff prays for a temporary restraining order against defendant, and that, on final hearing', defendant be perpetually enjoined from selling his property and for general relief.

A temporary restraining order was issued by the Court Commissioner upon the petition, and a general demurrer on the ground that the petition does not state facts sufficient to constitute a cause of action was filed and sustained by the court, the temporary restraining order was dissolved and the action dismissed. Exceptions were duly taken and the plaintiff brings error.

It clearly appears from the petition that plaintiff had personal property, including live stock, subject to taxation in Crook Count}', it being alleged that he listed all of his personal property and live stock for assessment and taxation for the year 1903. The only question on that branch of the case then is, do the facts stated entitle plaintiff to relief in a court of equity by way of an injunction to restrain the treasurer from enforcing the collection of these taxes by reason of the property added to his assessment by the Board of Equalization.

The statutes of this state (R. S. 1899) constitutes the Board of County Commissioners of each county a Board of Eqitalization for the correction tand completion of the assessment roll of their respective counties and fixes the time and place of its meetings. Section 1785 is as follows: “Said board shall at its first meeting- add to said assessment roll any taxable property in their county not included in the assessment as returned by the assessor, and shall assess the value thereof and shall hear and determine the complaint of all persons, companies, associations and corporations feeling aggrieved by the assessment of their property as returned by the assessor or by the assessment as returned by the assessor of the property of any other person, company, association or corporation; Provided, however, That such complaint shall be made, heard and determined in the manner hereinafter provided. And the said board may increase, diminish or otherwise alter or correct any assessment or valuation contained in said assessment roll.”

Sections 1786 and 1787 provide for notice to any person whose assessment has been raised or increased, and Section 1788 provides: “Any person desiring to make complaint to such Board of Equalization, as hereinbefore provided, shall file with such board a statement under oath, specifying the respect in which the assessment complained of is incorrect. * * *” Then in the following- sections provision is made for the manner of hearing proofs in regard to such complaint and the assessment to which it relates.

Counsel for defendant contend that the petition fails to show that plaintiff filed his complaint under oath with the board, and that, having failed to pursue the remedy provided by the statute, the courts can grant him no relief. We think it unnecessary to decide whether or not the complaint or protest was sufficient to require the board to act, for the reason that it appears that the board did hear the complaint, and that plaintiff had an opportunity to and did offer evidence to show that the raise as made by the board was erroneous, but that the board decided that the assessment should stand. The board having jurisdiction and being clothed by the statute with judicial powers, and having heard and decided the matter, the courts cannot retry, in an independent action, the matters so decided, there being no allegation that the action of the board was fraudulent. The tax in this case is not an illegal tax, that is, one that the board could not lawfully levy, but it is the excessive assessment and over valuation of plaintiff’s personal property of which complaint is made, and in such case the decision of the board in the absence of an allegation of fraud is final. (2 Cooley on Taxation (3d Ed.), 1379, et seq.; 21 Enc. Pl.. & Pr., 439, et seq. and cases cited; Salmond v. Inhabitants of Hanover, 13 Allen, 119; Board of Commrs. v. Searight Cattle Co., 3 Wyo., 783, 801.)

The petition is defective also for the reason that the amount of taxes appearing on the tax roll against plaintiff on personal property is not stated, and it is impossible to determine from the petition whether the tender of $366.69 covered all of such taxes except those upon the valuation of $4,800, added by the board. (Iowa & Dakota Telephone Co. v. Schamber, 15 S. Dak., 579.)

Upon the other branch of the case, with reference to the real estate, plaintiff contends that because a part of the same was erroneously assessed in School District No. 10; because of the errors in description and because the real estate was assessed en masse, the entire levy on the real estate was erroneous, illegal and void, and that, having tendered all of the taxes assessed and levied against his real estate, the treasurer should be enjoined from selling the same. Plaintiff is not in a position to complain of these matters, for the reason that lie did not complain of them or make an)- effort to have them corrected bv the Board of Equalization, and, having neglected so to do, he is not entitled to relief in a court of equity. (Board of Commrs. v. Searight Cattle Co., supra; Kelley v. Barton, 174 Mass., 396; Salmond v. Inhabitants of Hanover, supra; Bates v. Inhabitants of Sharron, 175 Mass., 293; Bourne v. City of Boston, 2 Gray, 494; 2 Cooley on Taxation (3d Ed.), 1379, and note 1 ; 27 Enc. Raw, 718; 21 Enc. Pl. & Pr., 436.)

The valuation of the land is not shown to be excessive for the lands assessed and actually owned by plaintiff, omitting the tracts erroneously described.

By Section 1870, Revised Statutes of Wyoming, 1899, taxes upon real property are made a perpetual lien thereon, and taxes due from any person on personal property are made a lien on the real estate owned by such person. The taxes 011 plaintiff’s personal property became and were a lien upon any real estate owned by him, whether the same was assessed or not, and the real estate could be sold by the treasurer for such taxes notwithstanding the fact that the taxes assessed against the real estate had been tendered ; and the fact that the treasurer threatened to sell real estate which plaintiff did not own could do him no injury. The case of Lobban v. State ex rel. Carpenter, 9 Wyo., 377, has been cited by counsel, but in that case the court held that the personal property tax was not a lien on the real estate for which the receipt was asked, for the reason that the real estate had been sold on foreclosure of a mortgage which was a prior and superior lien to that of the personal property tax, while in this case there is no doubt about the personalty tax being, a lien on the real estate. For the foregoing reasons, we think the petition did not state a cause of action and that the demurrer thereto was properly sustained. The judgment of the District Court will be affirmed. Affirmed.

Potter, concurs.

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Rehearing

on petition eor rehearing.

Van Orsdel, Justice.

This cause was before decided by this court, the opinion appearing in 79 Pac., 1042. A petition for rehearing was filed by counsel for plaintiff in error, within the time prescribed by the rules of this court, and briefs were filed in support of the petition. We have reviewed the case and arrived at the same conclusion as announced in the former opinion. It is alleged in the petition of plaintiff in error, upon which he asks an injunction to restrain the collection of the taxes in question, that the Board of Equalization “unlawfully, illegally, erroneously, unjustly, arbitrarily and without sufficient evidence or cause added to the plaintiff’s assessment three hundred head of cattle and levied the taxes thereon.” It is urged by counsel for plaintiff in error that as these facts were admitted to be true by the general demurrer to the petition, the illegality of the tax is established. This claim is based upon the assumption that the mere statement in the petition that the property in question was illegally and arbitrarily added to the assessment roll and taxes levied thereon establishes these, under the demurrer, as admitted facts in the case. These statements are not allegations of fact, but legal conclusions, and conclusions that are not supported by the facts set forth in the petition. A demurrer does not admit statements of legal conclusions, not warranted by the facts on which they are predicated, nor inferences from facts which do not support them. (Finch v. Board of Education, 30 O. St., 41; Pittsburg, Cincinnati & St. Louis Railway Co. v. Moore, 33 O. St., 334.)

The petition states that the plaintiff-in error had real and personal property in Crook County subject to assessment for taxation in the year 1903. This being true, the action of the Board of Equalization, in adding the property in question to the assessment roll, was not void for lack of jurisdiction. If the plaintiff in error had had no property in Crook County subject to taxation, the assessment would have been void for lack of jurisdiction to tax. Had that been the case, there would be no doubt of the illegality of the tax. But, according to the allegations of the petition, the plaintiff had property in the county subject to taxation, and the adding of three hundred head of cattle to the assessment roll, if erroneously added, did not make the assessment illegal, but excessive. It is said by this court in Board of County Commissioners v. Searight Cattle Co., 3 Wyo., 777, that “our statutes relating to the recovery back of illegal taxes do not cover taxes based upon excessivassessments.” This also applies to actions by injunction to restrain the collection of illegal taxes. Revised Statutes, Section 1785, empowers the Board of Equalization to add to the assessment roll any taxable property in its county not included in the assessment as returned by the assessor, and it is made the duty of the Board of Equalization to assess the value thereof. Anything done b) the Board of Equalization within the purview of this statute is an exercise of judicial discretion, and so long as it does not exceed its jurisdiction, its actions cannot be said,to be illegal. The facts alleged in the petition, and admitted by the demurrer to be true, do not show that the board exceeded its jurisdiction, or sustain the conclusion that the tax in question is illegal. If the petition establishes anjdhing, it is a case of excessive assessment.

It is also contended that, since the petition alleges that the board “arbitrarily and without sufficient evidence” added the property in question to the assessment roll, injunction will lie to restrain the collection of the tax so levied and assessed. The statute, authorizing the Board of Equalization to add property to the assessment roll and assess the value thereof, does not require the board to hear any evidence as a condition precedent to correcting- the assessment roll. The information on which the board acts may exist within the personal knowledge of its members, or they may gain the information from any source at their command. In many of the states the statutes require that the journal of the Board of Equalization shall show that the board had evidence of some kind upon which to base its action, and a failure of the journal to show this fact is held to be jurisdictional. (The Gerke Brewing Co. v. John Haggerty, Auditor, et al., 1 N. P. (Ohio), 68.) Our statute imposes no such obligation upon the Board of Equalization, and the allegation in the petition in this case, that the property was added to the assessment roll without sufficient evidence, neither supports the allegation that the board acted arbitrarily, nor raises any jurisdictional issue upon which equity can be invoked.

The allegation that the board arbitrarily added the property to the assessment roll is also a legal conclusion, not supported by the facts set forth in the petition, and as such is not admitted to be true by the demurrer. If it is intended by this allegation to allege fraud as a foundation for a restraining order, there is no principle in the practice better established than that the facts constituting fraud must be alleged. There is nothing in this petition except the bare conclusion of the pleader that the Board of Equalization, in increasing the assessment, acted arbitrarily. Counsel, in their brief in support of their petition for a rehearing, make certain statements in regard to the action of the members of the Board of Equalization that would have tended to support the conclusion that the board was prompted by improper motives in adding the property in question to the assessment roll; but these facts.do not appear in the petition, and there is nothing in the language ■of the petition from which they can either be inferred or assumed. In fact, the language of the petition tends to show that fair treatment was accorded the plaintiff in error at every stage of the proceedings. He had notice of the action of the Board of Equalization, and he appeared before the board and submitted evidence in support of his claim for a reduction of his assessment, and after a full hearing the board found against him.

Counsel further complain that the refusal of the defendant in error to accept the tender of taxes on real estate, as assessed against the plaintiff in error, was highly prejudicial to his rights. In this state personal taxes are made a lien against the real property of the taxpayer. (R. S., Sec. 1870.) The defendant in error acted properly in refusing to accept the taxes assessed against the realty, so long as the taxes upon the personal property of the plaintiff in error remained unpaid. A tax receipt, which the treasurer as collector of taxes is required to give, under the provisions of our statute, is more than a mere acknowledgment of the payment of a specific sum of money. It is written evidence showing that all taxes against the realty have been paid. (Lobban v. State ex rel. Carpenter, 9 Wyo., 377.) So long as the taxes upon the personal property of the plaintiff in error remained unpaid, the defendant in error, as tax collector, was not obliged to receive the tax on the realty and receipt for the same. Especially was this true when the personal tax was the subject of pending litigation.

It was said by Conaway, J., in Board of County Commissioners v. Searight Cattle Co., supra: “Defendant in error had personal property subject to taxation in Johnson County. This being settled, the only remaining questions' are as to the alleged errors in the listing and valuation of such property for taxation. The rectification of such errors must be sought before the County Board of Equalization. The determination of this board is a judicial act. The taxpayer has notice of its sitting. If he fails to attend, he is in the situation of the party who- allows his case to go b) default in any court. Section 3821, Revised Statutes of Wyoming (Sec. 1863, R. S. 1899), does not authorize retrial of the existence of alleged errors when the question has been once judicially determined.” In this case, the question has been judicially determined by the Board of Equalization of Crook County. The plaintiff in error was present and given a hearing, and allowed to submit evidence in support of his contention. The board in reaching its conclusion acted judicially, and the existence of mere errors of discretion in the judicial determination of the case cannot be reviewed in a court of equity. A court of equity is not a court of errors to review the acts of public officers in the assessment and collection of taxes, and it will not revise their decisions upon matters within their discretion, if they have acted honestly. The petition in this case fails to allege a.ny facts upon which to base a conclusion that the Board of Equalization acted either arbitrarily or dishonestly, or in any manner abused the discretion which it is by law authorized to exercise.

Rehearing denied.

Potter, C. J., and Beard, J., concur.