189 P. 59 | Mont. | 1920
delivered the opinion of the court.
On the twenty-fifth day of November, 1919, relator, with 584 other persons, filed with the respondent board two petitions, one from Cascade county and one from Fergus county, for the creation of a new county to be known as Judith Basin county/ These petitions contained a statement of all facts required by law and necessary to confer jurisdiction upon the board to act; thereupon a day was fixed for the hearing of the petitions, and notice given and proof made of the publication as required by
On the day of the hearing, protestants against the creation of the proposed county challenged the sufficiency of the verification of the Cascade county petition, on the ground that one of the. signers, H. S. Thurston, was not a taxpayer. This matter was argued, testimony taken thereon, and taken under advisement by the board. The board heard the evidence as to the sufficiency of the petition from Fergus county and of the exclusion petitions Nos. 1 and 3, and thereafter determined that H. S. Thurston was not a taxpayer, and therefore the petition from. Cascade county was insufficient, and rejected the same. The board then found that the territory described in exclusion petitions Nos. 1 and 3 Was each in one block, and contiguous to Fergus county, that the petitions were sufficient, and excluded the territory so described, and found that inclusion petition No. 1 was insufficient, and that inclusion petition No. 2 was filed on the day of the hearing, and therefore came too late, and rejected both of said petitions for the inclusion of territory. Thereupon the board found that, with the exclusion of the territory described in exclusion petitions Nos. 1 and 3, the remainder of the proposed county would not be reasonably compact, and the petition for the creation of the county was therefore denied.
The board further found that all petitions filed constitute one attempt to create a county, and that, upon the failure of one of the. petitions to comply with the law — that is, the Cascade county petition — the board was without authority to proceed, and also that, the Cascade county petition having failed, the remaining territory in the petition for the creation of the new county contained less than ten hundred square miles, excluding the territory withdrawn by reason of exclusion petitions Nos. 1 and 3.
Relator thereupon filed his petition for a writ of mandate to compel the respondent board to reconvene and annul their order
1. In support of the last-named motion, it is urged that the
2. The Act providing for the creation of new counties requires
The petition from Cascade county was rejected by the board of county commissioners of Fergus county, on the ground that one H. S. Thurston was not a taxpayer. The evidence discloses that Thurston did not appear on the tax-rolls of Cascade county for the year 1919. It does appear, however, that Thurston listed with the assessor, watches, jewelry, etc., of the value of $100, household goods and furniture of the value of $500, and manufacturing and mining machinery of the value of $1,800,
It will be noted that the section of the Act above referred to does not require that the affiant shall be a taxpayer “whose name appears on the last assessment-roll of the county, ” as is the case in many such statutory provisions, but merely that he is a “taxpayer.” “ ‘A taxpayer’ is one who owns property within the. municipality, and who pays a tax, or is subject to and liable for a tax.” (City of Pocatello v. Murray, 23 Idaho, 447, Ann. Cas. 1914C, 1050, 130 Pac. 383; Lasityr v. City of Olympia, 61 Wash. 651, 112 Pac. 752; State ex rel. Sutton v. Fasse (Mo. App.), 71 S. W. 745.) In the Pocatello Case the court said that, as the statute did not require the name of the taxpayer to appear on the assessment-roll, the ownership of the property and the payment of taxes thereon were sufficient to qualify such owners of property as taxpayers. We think this is the correct rule, and that it is abundantly supported by the authorities. Thus in State v. Lowe, 56 Kan. 594, 44 Pac. 20, it was held that “The-failure of an assessor to enter the name of a taxpayer on the-rolls, when it was his duty to have done so, does not disqualify him as a juror.”
“The fact that the property is assessed in the name of another by mistake does not disqualify a person as a juror if he-is the owner of the property and pays taxes thereon.” (United States v. Hackett (C. C.), 29 Fed. 848.)
And in the case of Mayer v. Sweeney, 22 Mont. 103, 55 Pac. 913, it was held that “Under Political Code, section 4749, which
It is clear that Thurston was a qualified elector and taxpayer, and that the petition from Cascade county was therefore sufficient in this respect. It is not necessary to pass upon the question as to whether the petition could be amended by a further verification before final hearing.
3. The next error assigned is that the board of county commissioners found that the petition for Judith Basin county was not sufficient, for the reason that, after certain withdrawals, it contained less than twelve hundred square miles. The board was evidently laboring under a misapprehension of the provisions of the Act. Section 1 provides that the creation of a new county must not reduce the original county to less than twelve hundred square miles in area, but the new county need not contain more than ten hundred square miles. This error was, at some time before the heai’ing, corrected in the original findings by striking out the word “twelve” and substituting the word “ten.”
4. With reference to exclusion petitions, the Act (section 2),
In exclusion petition No. 1, the description of the lands to be excluded covers ten and one-half pages of typewritten matter, single spaced, comprising an area of 143 1/32 square miles, distributed over fourteen townships and with an exterior boundary line of 305 miles. In length it is thirty-one miles and is twenty-one miles wide. The exterior boundary line runs back and forth, north, east, south, west, alternately, including and ex-, eluding small tracts of land. In places the excluded land is, for a mile or more, not to exceed a quarter of a mile in width. A conception of the condition existing can only be acquired by
This remarkable collection of tracts of land, threaded together to preserve its continuity, was declared by the respondent board to be “in one block.” The word “block” is defined to be: “A section or division; the objects collectively contained in a section ; a mass or row, as a block of land; the land and buildings contained in a single square; a government division of land.” (Standard Dictionary.) “A lump or mass; any solid mass or matter * * * a connected mass of buildings.” (Century Dictionary.) “A solid mass of wood or stone, usually with one or more plain surfaces; a square; a portion of a city inclosed by streets.” (Webster’s Dictionary.) Throughout all
Prior to the passage of the present law, there was no requirement that excluded territory should be “in one block,” and it is quite evident that the legislature, by inserting the clause in the present law, intended to place an additional restriction upon those desiring to exclude territory from a proposed county, by providing that those desiring to withdraw shall carve from the proposed new county not less than thirty-six square miles in some regular and compact form and contiguous to the remaining portion of the original county, and then ascertain whether a majority of those residing in such “bloek” of land were favorable to the exclusion, to the end that, after the exclusion, county lines could be run between the original and the new counties in a practicable and workable manner. It is, of course, conceivable that such “bloek” of territory might be so extensive as to entirely divide, or at least emasculate, the proposed county; and the legislature, therefore, further provided that the board shall determine whether the area left in the proposed county will be reasonably compact.
But it was clearly not intended that, with regard only to continuity, running the lines so as to include those against the creation of the county and carefully excluding all in its favor,
5. The respondents have set up in their answer, and urge as
While the requirement that the one county shall be charged with the entire expense of the hearing on the petition may be an injustice to that county and the other counties from which territory is carved should pay their proportionate shares of such expense, as a matter of justice between the counties, such provision does not come within the prohibition of the article referred to. ‘Article XII of the Constitution has to do only with the levying and collection of taxes to maintain the state and county governments, and has no relation to the expenditure of the moneys so raised. The funds from which these expenses shall
As to defraying the expense of the election, excepted to by respondents, the Act provides for an apportionment between the old counties; here the use of the funds is for a public purpose, and the property in the new county, if created, has stood its proportionate share of the taxes from which the fund is derived, and will be charged with its proportionate share of the debt of each of the counties from which it is carved.
6. Respondents contend that the Act under consideration is
In the case of State ex rel. Bray v. Long, 21 Mont. 26, 52 Pac. 645, it was contended that a certain bill was not passed by the legislative assembly in the manner prescribed by the Constitution; the journal omitted to show that the bill in question was signed by the presiding officer of each house, pursuant to the provisions of section 27, Article Y, of the Constitution. The court, in refusing to go behind the enrolled bill, said: “The presumption is that the legislature and the officers thereof did their duty, and that the enrolled bill was regularly passed. This presumption is strong, and is indulged in by the judicial branch of the government as necessary to the ‘ peace and good order of the state.’ * * * ”
Quoting from Railroad Co. v. Governor, 23 Mo. 353, 66 Am. Dec. 673, the court continues: “If the legislature exceeds its power in the enactment of a law, the courts being sworn to support the Constitution, must judge that law by the standard of the Constitution, and declare its validity. But the question whether a law on its face violates the Constitution is very different from that growing out of the noncompliance with the forms required to be observed in its enactment. In the one case a power is exercised not delegated, or which is prohibited. * * * In the other, the law is not in its terms contrary to the Constitution; on its face it is regular, but resort is had to something behind the law itself in order to ascertain whether the General Assembly, in making the law, was governed by the rules prescribed for its action by the Constitution. This would seem like an inquisition into the conduct of the members of the General Assembly, and it must be seen at once that it is a very delicate power, the frequent exercise of which must lead to endless confusion in the administration of the law.”
The next case to consider this question is that of Palatine Ins. Co. v. Northern Pacific Ry. Co., 34 Mont. 268, 9 Ann. Cas. 579, 85 Pac. 1032, and the latest case that of State ex rel. Gregg
“There are but two instances mentioned in our Constitution wherein the legislature is required to make any particular entries in the journals. The first is found in section 24 above, and the other in section 27 of the same Article, where the fact of the signing of a bill by the presiding officer is required to be entered upon the journal. But for the failure of this second entry to be made, there is not any declaration that any conse
It is therefore apparent that, when the constitutionality of an Act is questioned on the ground of irregularity of legislative action, the only purpose for which the courts may examine the journals of that body is to determine whether the ayes and noes vote was entered.
The writ should issue to the members of the respondent board of county commissioners of Fergus county, directing them to reconvene within fifteen days after service of the writ and annul their order made on the fourteenth day of January, 1920, denying the petition herein; declaring affiant Thurston not a taxpayer, and that the Cascade county petition is insufficient, and annul their finding and order that exclusion petitions Nos. 1 and 3 are sufficient and excluding the territory therein described, and to thereupon, by proper order, reject said exclusion petitions Nos. 1 and 3 as insufficient in law, and find that the said Cascade petition was properly verified, as a matter of law, and that they do proceed to hear and determine, and make such further findings and pass such resolutions and make such orders as are required of them by law; and it is so ordered.
Writ forthwith.