169 P. 941 | Utah | 1917
This is an original proceeding in mandamus instituted by-Joseph Ririe, as state auditor, against the defendants, as county assessor and county commissioners of Carbon County. The application for the writ was filed August 25, 1917, charging the defendants with making an erroneous assessment of the coal lands situated in Carbon County, and praying that a writ of mandate issued to said defendants commanding them to correct said erroneous assessment, or show cause at a time and place to be specified in the writ why they should not do so. An alternative writ was issued, and the defendants duly appeared and filed their return and answer thereto, and at the same time demurred to the writ on the grounds that the same did not state facts sufficient to entitle the plaintiff to the relief demanded.
Plaintiff’s grievance against the county assessor is that he erroneously assessed all the coal lands in said county, both those purchased from the United States and those purchased from the state, at a uniform rate of $50 per acre, notwithstanding the law required him to assess the coal lands purchased from the United States at the price paid the government therefor, and those purchased from the state at their actual cash value. The wrongs charged against the county commissioners are that they failed to equalize and correct said erroneous assessment, but, on the contrary, certified the same to the county treasurer for the collection of taxes thereon. It is further charged by the plaintiff that said coal lands were purchased from the United States at prices ranging from $10 to $350 per acre, and that the coal lands purchased from the state ranged in value from $50 to $10,000 per acre, and that because of said erroneous assessment the state of Utah would be deprived of revenue in the form of taxes to the extent of many thousands of dollars.
Defendants’ demurrer to the writ presents many questions for the consideration of the court, but, with the exception of
As to the authority of plaintiff, as state auditor, to institute a proceeding of this kind, we are of the opinion
"To direct and superintend the collection of all money due the state, and institute suits in its name for all official delin-quences in relation to the assessment, collection, and payment of the revenue,” etc.
We have no doubt that the state auditor is clothed with authority to prosecute an action of this kind for an official delinquency of the nature charged in the writ whenever such action is seasonably commenced and is not objectionable for other reasons. The demurrer charges that there is a defect of parties in the failure to join the members of the state board of equalization, the county auditor, and the county treasurer of Carbon County as defendants. Concerning this objection but little need be said. Whenever it is necessary to commence an action against a public officer or officers for malfeasance in office or neglect of some official duty, the good sense and judgment of the authority instituting the proceeding will readily suggest who are the proper parties defendant. In a case of this nature, if commenced in time, it may be that the assessor is the only party necessary, as a defendant, to the obtaining of adequate relief. It may appear that he alone is delinquent. In such case, if other parties are necessary at all, it may only be for the purpose of staying their official action under the law until the matter can be judicially determined. It will all depend upon'the stage of the proceeding at which the action is commenced. One principle, if borne in mind, will prove to be an infallible guide. The court cannot require the performance of that which is impossible. It is of no avail in an action of this kind to institute proceedings against a public
In stating that the functions of these officers had expired we are not unmindful of the provisions of Comp. Laws Utah 1907, section 2545, relating to property that has escaped taxa
Nothwithstanding, for the reasons above stated, the application for a peremptory writ must be denied, it must not be considered by the parties to this action that this court lends its approval to the delinquencies complained of in the application. We are disposing of this case on the demurrer
For the reasons above stated, the alternative writ heretofore issued is quashed, and a peremptory writ denied.