24 Mont. 154 | Mont. | 1900
Lead Opinion
— This is an original proceeding in mandamos by the state board of equalization as relator. The affidavit upon which the alternative writ was issued discloses these facts: The relator, at its annual meeting in July and August, 1899, inspected the duplicate statements of the assessments of the several counties of Montana transmitted by the county clerks in accordance with the provisions of Section 3842 of the Political Code; and, after an examination had been made by the members of the board for the purpose of ascertaining the true value of certain classes of personal property, increased the assessed valuation of such property by $745,629. The increased valuation of beef cattle was $36,191, of stock cattle $196,833, and of stock sheep $467,087. The values fixed by the relator were $40 for beef cattle, $22.50 for stock cattle, and $2.75 for stock sheep per head. In Cascade county beef cattle had been assessed at $30, stock cattle at $20, and stock sheep at $2.50 per head. The increase in this county made by the relator was $25,290 for beef cattle, $69,992.50 for stock cattle, and $41,871 for stock sheep. The increase was made without notice to the county clerk or any taxpayer. The county clerk of Cascade county refused to enter in the assessment book of that county the changes made by the relator, and the object of this proceeding is to compel him to do so. The defendant tests by demurrer the sufficiency of the facts stated.
The Colorado decision was made in 1877, and Montana became a state in 1889; Section 15 of Article XII of our Constitution was adopted from the Colorado constitution after an interpretation thereof by the court of last resort in the parent state. That interpretation is not clearly erroneous. The presumption is, therefore, that the convention which framed the Montana Constitution was ‘ ‘conversant with and designed to adopt also’ ’ the interpretation previously given to the section in Colorado. (Am. & Eng. Ency. Law (2d Ed.), 935; Stadler v. First National Bank, 22 Mont. 203, 56 Pac. 111.) Nor has the supreme court of that state, in Ames v. People (Colo. Sup.), 56 Pac. 656, modified or recededfrom Peoples. Lothrop, and as late as January 17th of the present year the last-named case is reaffirmed in People v. Ames (Colo. Sup.), 60 Pac. 346.
The learned attorney general cites Sections 3690, 3800— 3802 of the Political Code as conferring upon the state board of equalization authority to do that which it attempted to accomplish; but statutes cannot clothe the state board with power denied to it by the fundamental law.
After a careful examination and consideration of the reasons
In the Wallace Case the court was inclined (as we are) to think that by the weight of authority the state board of equalization is without power to change the valuation of any class of property, its authority being limited to raising or lowering the entire assessment of a county. In the proceeding at bar it appears that the state board increased the valuation of three classes of personal property. Determination of the questions thus suggested, and of the further question whether the state board can raise or lower assessments without first giving notice of its contemplated action, is unnecessary to a decision, and an opinion thereon is reserved.
The demurrer is sustained, and a judgment will be entered dismissing the proceeding.
Dismissed.
Concurrence Opinion
I concur in the foregoing opinion solely on the ground of stare decisis. If the question involved were a new one in this state, I should be in favor of disregarding the construction given to the section of the constitution by the Supreme Court of Colorado in People v. Lothrop, 3 Colo. 428, and followed by this Court in State ex rel. Wallace v. State Board of Equalization, 18 Mont. 473, 46 Pac. 266, as demonstrably wrong.