Town of White Sulphur Springs v. Pierce

| Mont. | May 16, 1898

Pemberton, C. J.

Counsel for appellant contends that the town taxes in question were levied under Ordinance No. 15 of the plaintiff town, and that the ordinance is void because it does not provide that the taxpayers of the town may work out their taxes if they so elect, and because it does not further provide for giving notice to the taxpayers of the time and place when and where such work may be done, as required by Sections 1852, 1853, 1851, Fifth Division, Compiled Statutes 1887, under which statutes counsel claims the ordinance was adopted.

We doubt very much whether the appellant has any such rights in this controversy as would enable him to set up the failure of the ordinance to include within its terms such provisions. Those provisions were prescribed for the benefit of the taxpayers. They might make this defense if the taxes were levied under an ordinance passed under the sections of the Compiled Statutes referred to. But the agreed statement of facts shows that the taxes, in controversy were for the year 1895, and levied by the resolution of the board of aldermen of the plaintiff town, set out in the statement. It appears, therefore, that the taxes were levied under the codes, which took effect July 1, 1895, and not under any provisions of the Compiled Statute, of 1887. Section 1860 of the Political Code authorizes towns to levy such taxes. Section 1872 same code empowers the town council or board of aldermen to make such levy by resolution. This resolution of the board of aldermen levying the taxes was certified by the county clerk, who, in accordance with the law, carried this tax levy into the proper tax book, which he delivered to the county treasurer to collect. The county treasurer collects the taxes in all towns and cities except cities of the first class, unless such towns or cities not of the first class otherwise provide by ordinance. (Section 1870 Political Code.) The plaintiff town had not otherwise provided' by ordinance for the collection of its taxes. The defendant, as county treasurer, collected the taxes levied as shown above. Having collected them, Section 1861 of the Political Code requires that he pay them over to the town or its treasurer. This he refused to do. We are shown no sufficient reason why he should refuse to comply with a plain requirement of the law. The taxes were levied by the town, and collected by the appellant as town taxes.

Counsel for appellant says the judgment should be reversed because the district court only rendered judgment in favor of plaintiff for 7 0 per cent, of the amount of taxes collected, whereas it should have recovered for the full amount, if for any. The plaintiff is-not complaining of this action of the court, and the appellant cannot complain if he got more by the judgment than he was entitled to. The appellant .is not injured by the judgment. We think the judgment should be affirmed.

Affirmed.

Hunt and Pigott, JJ., concur.