12 Mont. 23 | Mont. | 1892
Lead Opinion
The complaint alleges “that in the year 1889, at the proper time, and as required by law, the plaintiffs . made out and delivered to the assessor ” of the county of Gallatin, “ upon his requisition, a list and statement of all the real and personal property in their possession or under their control in said county, which by law they were required to list for taxation,” to wit: The E. of the N. W. J and the E. \ of the S. W. and the S. E. of section 3, township 2 S., of range 5 Eq and also the S. W. ¿ of section 22 in said township; and also fifteen horses, sixteen cattle, and one wagon.
It is further alleged that “the said real estate in said section 3 constituted one distinct parcel of land, and the said real estate in said section 22 constituted another and separate and distinct parcel of land; . . . . that notwithstanding the facts aforesaid, the said assessor did not determine nor fix the true value of either of said parcels of land separately, or of said personal property, or the value of said property in any manner or at all; ... . that the said assessor, before the first Monday of September of said year of 1889, did make out and deliver to the county clerk of said county a so-called assessment list and roll, but the same did not contain the value of any or either of the several parcels of land or species of property contained in said statement and list or roll.....The said assessor did not separately assess the value of the several tracts and parcels of land above described.....There was no assessed valuation of any of the foregoing described real estate, or any of said personal property, during said year A. D. 1889 ; and there was no levy of any tax against said property of the plaintiffs, or any thereof, made during the said year of 1889; and no tax became due or payable from the plaintiffs, or either of them, upon any of said property during said year of 1889.”
It is further alleged “ that said county treasurer did not, during said year of 1889, or at any time, or at all, commence any proceedings to collect the tax claimed to be due from plaintiffs
It is further alleged “ that said lands were not so sold nor bid off for the amount of taxes due or claimed to be due thereon, or due or claimed to be due upon either of said parcels, or for the interest, penalties, and costs thereon, but for a sum equal to the whole amount of taxes claimed” to be due “upon said real estate, and for taxes claimed to be due also upon said personal property for said year 1889, together with the costs and charges and penalties upon the whole amount of said taxes. Said pieces
It is further alleged that “ at the date of said sale of the said real estate to the said Gallatin County, the same was not subject to sale for any taxes whatever; . . . . that said certificate of sale .... was wrongfully and unlawfully issued by said treasurer to said ” county; “ that the said sale and certificate of sale cast a cloud upon the title of the plain tiffs to the said real estate; . . . . and that, if said cloud is allowed to continue upon the title of said real estate, its value will be greatly depreciated, and the plaintiffs greatly discommoded and damnified thereby, the said real estate being of great value, to wit, of the value of $5,000.”
The prayer is that the sale be adjudged void, that the certificate be canceled, and that the treasurer be enjoined from executing any deed to said lands under the sale and certificate of purchase.
The demurrer stated the following grounds: “That said complaint is ambiguous and uncertain in that it cannot be ascertained therefrom what part of said sum of $220.72, taxes, penalty, and costs, is claimed to be excessive as against said lands; .... that said complaint does not state facts sufficient to constitute a cause of action.” The demurrer was sustained, and the plaintiffs having elected to stand upon their complaint, judgment was entered in favor of the county of Gallatin.
It appears from the complaint that the appellants allege clearly that the portion of the said sum of $220.72 which was claimed to be excessive was the amount which had been included therein by reason of the taxes, penalty, and costs that have been levied upon their personal property. The precise amount thereof is not directly mentioned, but can be ascertained by computation. The entire pleading is “easy of comprehension, and free from reasonable doubt, which is all that is necessary.” (Salmon v. Wilson, 41 Cal. 602; Applegarth v. Dean, 68 Cal. 491; Kraner
The real controversy before us relates to the proposition that the complaint does not state facts sufficient to constitute a cause of action. It is alleged that Exhibit A “is a true and correct copy of so much of said assessment roll and list as contains the entry of the said real estate and personal property, as made on said assessment roll and list by said assessor.” The part which is relevant to this investigation appears in the following form:—
It is maintained that the assessor did not comply with the requirements of this statute. “It shall be the duty of the assessor to determine and fix the true value of all items of property included in such statement, and enter or cause to be entered the same opposite such items, respectively, so that, when completed, such statement shall truly and distinctly set forth .... the number of acres of land, giving full description, location, and the value thereof.” (Stats. 16th Sess. p. 223, § 5.) The appellants insist that the figures in the foregoing columns of value do not designate dollars or cents, and that the assessment is void.
The first case which we have examined with reference to this question is that of Lawrence v. Fast, 20 Ill. 339; 71 Am. Dec. 274. A judgment had been entered against delinquent lands for the taxes, and the court said that in no part thereof “ does the word ‘dollar/ ‘cent/ or ‘mill’ occur, nor any abbreviation, character, or sign representing either of these words, or any other denomination of money.” It was held that the use of numerals was insufficient, and that the judgment was fatally defective. Mr. Justice Breese, in a dissenting opinion, said: “It is certain to every ordinary intent that the figures in the proper columns indicated cents or dollars and cents. The most common man would so understand them, and could not be misled by them.” The doctrine of the court was followed in Lane v. Bommelmann, 21 Ill. 147; Gibson v. City of Chicago, 22 Ill. 567; and Eppinger v. Kirby, 23 Ill. 523; 76 Am. Dec. 709. The case of Lawrence v. Fast, supra, was approved in Randolph v. Metcalf, 6 Cold. 400, in which a judgment of condemnation of land was rendered for the non-payment of taxes. In the opinion Mr. Justice Shackelford said: “This question came before the Supreme Court of the United States, reported in Woods v.
We do not so understand the decision in Woods v. Freeman, supra. Mr. Justice Davis in the opinion said: “In the construction of local statutes affecting the titles to real estate this court recognizes the binding force of the interpretation given by the highest judicial tribunal of a State. This question has been expressly decided by the Supreme Court of Illinois.” The court then cited Lawrence v. Fast, supra, and Lane v. Bommelmann, supra, and held accordingly. The opinion proceeds no further.
The Supreme Court of California, in Hurlbutt v. Butenop, 27 Cal. 50, held that figures in an assessment roll, without any statement whether they stand for cents, dollars, or eagles, do not fix any valuation to property therein described. Similar views have been repeatedly announced by that tribunal. (Braly v. Seaman, 30 Cal. 610; People v. San Francisco Savings Union, 31 Cal. 132; People v. Hastings, 34 Cal. 571; Garwood v. Hastings, 38 Cal. 216. See, also, In re Rector etc. of Church of the Holy Sepulchre, 61 How. Pr. 315.) The Supreme Court of Minnesota, in Tidd v. Rines, 26 Minn. 201, in which the validity of a tax judgment was involved, cited with approval these decisions of the courts of Illinois and California.
There is eminent authority upon the other side of the contention. In Cahoon v. Coe, 52 N. H. 518, the court expressed its concurrence in the dissenting opinion of Mr. Justice Breese, supra, and said: “We are satisfied that the figures, taken in the connection in which they stand, must be understood to mean dollars or cents, or dollars and cents, the ordinary denominations of our money.” In State v. Eureka Con. Min. Co. 8 Nev. 15, the court said: “Upon principle we think the opinion of Judge Breese presents the more reasonable and common sense view of the question, especially as applied to the facts of this case.” It is stated in the opinion by Mr. Justice Garber that “the plaintiff offered as evidence portions of the original and delinquent quarterly assessment rolls. The defendant
The Supreme Court in Illinois in the later cases of Chickering v. Faile, 38 Ill. 342, and Elston v. Kennicott, 46 Ill. 187, has explained fully its position, and pointed out distinctly the grounds on which Lawrence v. Fast, supra, is based. Chief Justice Breese in the opinion in Elston v. Kennicott, supra, said: “The plea for his failure to pay the taxes for that year is that the taxes were not legally assessed, the assessment roll not containing the dollar mark.....This very question came before this court in the case of Chickering v. Faile [swpra], wherein it was held that the want of the dollar mark in the assessment roll, to designate the amount of the valuation or the taxes, would not render the assessment or the collector’s warrant invalid and illegal. It was further said, we would not apply the want of a word or character to the numerals to indicate the sum of taxes due as a defect to anything prior to the application of the collector for a judgment against delinquent lands, and would not even apply it to the judgment were it not that the judgment must find the sum for which it is rendered, and that this rule is inflexible. To all of the proceedings prior to the judgment for taxes all persons know what the numerals represent,-and act upon them accordingly.....This want of the dollar mark is no defect to any matter or thing prior to the application of the collector for a judgment against the delinquent lands..... Who is to say, at this stage of the proceeding, that the assessment is illegal for the want of this mark? He who shall take the risk, takes it at his peril. It is sufficient for the tax-payer to know his property is assessed for taxation in a mode he well understands. His property is charged with a tax which he must discharge.....On this point we still hold, as this court has constantly held, that a judgment for taxes, in which the amount of the taxes does not appear either by the use of apt words or the recognized dollar mark, cannot be sustained.
It is claimed that the said parcels of land were not valued separately, but in a lump, and that, therefore, the assessment is a nullity. If this objection were tenable, the appellants have not alleged the facts which are essential to enable them to take advantage thereof.
In Cadwalder v. Nash, 73 Cal. 43, it is adjudged that “where the owner himself returns the property as a whole he cannot-be heard to complain that it has been improperly listed in that manner.” While the complaint alleges that the real estate consisted of two distinct parcels, there is no averment that the appellants so returned the same in their “list and statement” to the assessor.
In the recent case of Dear v. Varnum, 80 Cal. 86, it is said: “The complaint does not .... disclose the contents of the written statement furnished by plaintiff to the assessor, nor allege that the assessment did not conform, in its description of property, to the description contained in the statement furnished by plaintiff, nor show wherein it differed therefrom. Assuming the statement furnished to have been such as the law required, it must be presumed, in support of the assessment, unless the
The principles which were laid down in Northern Pac. R. R. Co. v. Patterson, 10 Mont. 90, are applicable, and the appellants could have obtained an adequate remedy on account of these irregularities by appearing before the board for the correction of the assessment roll. The following section of the statutes should be considered upon this branch of the appeal: “An entry is required to be made upon the tax list showing what it is, and for what county and the year it is; and the county clerk shall attach to the list his warrant, under his hand and official seal, in general terms, requiring the treasurer to collect the tax therein levied according to law; and no informality in the above requirements shall render any proceedings for the collection of taxes illegal, and such list shall be full and sufficient authority for the treasurer to collect all taxes contained therein.” (Stats. 15th Extra Sess. § 24.) We hold there was a valid assessment of the property of the appellants, and that the same was subject to taxation by virtue of the laws in force during the year 1889.
It is further declared that “every tax levied under the provisions of this act is hereby made a lien against any and all the property assessed, and such liens shall attach at the time of such assessment, and shall not be satisfied or removed until such taxes are paid.” (Stats. 15th Extra Sess. p. 83, § 2.) The complaint alleges that no tax was levied against the property of the appellants during the year 1889, and the brief asserts that there was no jurisdiction in the board of county commissioners to act in this matter in the absence of a proper valuation and assessment. This allegation of the appellants depends upon propositions which we have determined to be unsound.
The next inquiry relates to the authority of the county treasurer of Gallatin County to sell the real estate without a resort to other remedies. The statute provides that, “if any such taxpayer shall fail or refuse to pay the taxes against him on or before the last day of December following the levy thereof) ten
The form of the notice of the sale of the real estate by the treasurer is in accordance with the statute. (Stats. 15th Extra Sess. p. 94, § 30.) “The county treasurer shall, on or before the fifteenth day of January in each year, make out and publish a list of all lands .... subject to sale, describing such lands .... as the same are described on the tax roll.....” The appellants contend that each parcel of land is liable solely for the tax which had been assessed against it, and that this amount shall be stated in the notice. In the case at bar, however, under conditions for which the appellants are responsible, the lands comprise one tract for the purposes of taxation. When the provisions of the law relating to the revenue are construed together, it is clear to me that all the taxes which have been assessed against the personal property of the appellants can be collected by the sale of their real estate, but a majority of the court is of a contrary opinion. It is difficult to reconcile the provisions of this statute with the section supra, declaring the extent and duration of a lien for taxes against “any and all the property described.” The taxes have not been paid, and the lien against the property of the appellants has not been extinguished. The language of the statute concerning the mode of collecting delinquent taxes by the sale of real property should be interpreted to enforce, if possible, the entire obligation of the citizen to the State. The objection that there is no denomination of dollars or cents, ¿ccording to the notice, must be overruled for the foregoing reasons.
The treasurer bid off the lands for the county of Gallatin, and issued a certificate of purchase, and apparently followed the statute. (Stats. 15th Extra Sess. p. 96, § 36.) The appellants, in their brief, attack the form of this document, but this subject cannot be inquired into upon this appeal. If one of the appellants offered to redeem any part of the property therein described, and tendered a sufficient sum of money, the court would give an ample rémedy. An examination of the whole record
We cite again the case of Railroad Co. v. Patterson, supra, and hold that the appellants cannot invoke the aid of an injunction, when they do not offer to do equity by tendering any part of the taxes which they owe to the county of Gallatin and the State. The complaint does not state facts sufficient to constitute a cause of action.
It is therefore ordered and adjudged that the judgment be affirmed.
Concurrence Opinion
(concurring). — One of the grounds upon which appellants insist that the assessment and levy of the tax on the lands in question, and the sale thereof to enforce payment of said tax, is void, is because two distinct and separate parcels of land were assessed and valued for taxation in one item and as one parcel; and that afterwards, in all the proceedings for enforcing said tax, the two parcels of land were treated as one.
It appears from the allegations of the complaint that plaintiffs made and delivered to the assessor a list of all their real and personal property, in which list they returned a description of said lands. It is not directly alleged in said complaint that plaintiffs described and stated the value of said real estate in one item as one parcel of land; but that, I think, is the fair inference to be gathered from paragraph 4 of the complaint. It is nowhere alleged that plaintiffs returned their real estate in separate parcels, or with separate valuations, which ought to have been distinctly alleged, if true, in order to form a basis for asserting the proposition they contend for, that said lands should have been assessed and the lien thereon for the tax levied enforced against the same by separate parcels; and, as before remarked, the inference we draw from the allegations of the complaint is that the land was returned by plaintiffs, and valued as a parcel of “478 acres of land.” This was asserted by respondent in his brief and argument as the allegation of the plaintiffs’ complaint, which proposition was not denied by
But, as a general proposition of law, I do not agree that, under the provisions of the statute regulating taxation at the time in question, every tax levied, whether on the specific parcel of real property or not, became a direct lien, generally or convertibly, to be applied on any or every parcel of real estate assessed to the same party. I think the provisions of the statute contemplated and provided for the assessment of each distinct parcel of real estate separately, and for a direct lien on each parcel for the tax levied thereon. Section 2 of said act (Extra Sess. Laws, 1887, p. 83) provides; “ Every tax levied under the provisions of this act is hereby made a lien against any and all the property assessed, and such lien shall attach at the time of such assessment, and shall not be satisfied or removed until such taxes are paid.” If this provision, considered alone, leaves any doubt as to the point in question, it is made clear by other provisions of the same act, when all are looked at and construed together. Section 13 provides that, as to real estate assessment, the county clerk shall set forth in a book to be u known as the ‘ Real Property Assessment Book/ lists of all lands in his county subject to taxation, showing the names of the owners, if known. If the names of the owners be unknown, it shall be so stated opposite the description of each tract or parcel of land by township, range, section, and subdivision thereof, or numbers.” By the provisions of section 16, the assessment list of each individual is required to contain “ his or her or their lands, to be designated by sub
I think these provisions of said act make plain the proposition that the legislature intended that each distinct parcel of land should be assessed separately, and separately charged with a direct lien for the taxes levied thereon, and may be redeemed from that lien by payment of the tax levied on such parcel according to the listing and assessment thereof. This is shown by the many provisions of the statute cited. It is a just provision, too, because others besides the legal owner may have interests in a parcel of land, which they wish to protect by payment of the tax before sale, or redemption of the parcel after sale; and, under the contrary view, such interests could not be protected without payment of all taxes assessed against all other property of the delinquent. It may be further observed that a delinquent, unable to pay the tax on all the lands assessed to him, could not save one parcel from sale, or redeem one parcel, without payment of the whole tax, unless the provisions of the statute which we have cited are substantially followed. But while it is the right of the owner to have his real estate assessed and taxed by separate parcels, these provisions of the statute and the rights which flow therefrom ought to be applied with reason in connection with the subject under regulation and the other provisions of the act. When the owner returns lists of his property under the provision requiring him to make and return the same, this action on his part in a manner makes him a party to the listing and assessment of such land. And, moreover, the law has provided a board of equalization clothed with power to correct such irregularities, to whom the owner may apply for such correction; and we think the holding that he cannot ignore these provisions which offer a remedy, to which he should resort before he can appeal to the court for relief, is the proper ruling.
In the case at bar it appears from the complaint that the land in question was sold for an item of tax levied on personal property returned and valued at $950. The land sold, I think, was
I therefore, with these modifications of the views expressed in the opinion of Chief Justice Blake, concur in the conclusion that the judgment of the trial court should be affirmed.