Deloughrey v. Hinds

58 P. 709, 23 Mont. 260, 1899 Mont. LEXIS 99

• Court: Montana Supreme Court
• Decided: October 23, 1899
• Docket: No. 1,449
• Status: Published

Opinion

PER CURIAM.

— This is an action by the plaintiff, Patrick Deloughrey, for an injunction to restrain the defendant, Thomas R. Hinds, as treasurer of Silver Bow county, and his successors, from selling certain property situated in the city of Butte, in said county, for city and county taxes assessed and levied for the year 1890. After alleging the official character of the defendant, the plaintiff avers substantially that he is the owner of lot No. 7 of block No. 18 of the original townsite .of Butte, as it appears on the official plat of the city on file with the recorder of Silver Bow county; that in the year 1890 the duly elected, qualified, and acting assessor of the county of Silver Bow made an assessment upon the property above described, together with the south half of lots 6, 7, and 8 of block No. 8 of the original townsite of Butte, including all as one parcel, and putting a gross valuation upon the whole of $3,550; that the total county tax charged against all of said lots under said assessment was the sum of $19.70; that the city tax for that year levied and assessed upon the said lots, in the same manner, was the sum of $180.18; that the said assessment was and is fraudulent, illegal, and void, for the reason that the said property of this plaintiff above described then consisted of a town or city lot which did not and does not adjoin the other lots above described, but was and is separate, distinct, and apart from the other said lots; that for this reason it was impossible for the plaintiff, who is now the owner of the said lot No. 7 aforesaid, to “remove the said taxes from being a cloud to his said property by payment of the said taxes thereon”; that, pursuant to such illegal, fraudulent, and wrongful assessment, the sum of $229.88, alleged taxes, is illegally, fraudulently, and wrongfully charged against this plaintiff and his ‘ ‘said premises’ ’ for the said year 1890; that this plaintiff has no adequate remedy at law ‘ ‘for the purpose of removing the cloud upon the title to his said premises”; that the alleged taxes now appear spread upon the tax roll of the county of Silver Bow for the year 1890, an'd are apparently legal and valid, and are upon the face thereof a lien upon the said property of this plaintiff and a cloud upon his title thereto; and that the said Thomas 17. Hinds, as treasurer aforesaid, threatening to take proceedings to enforce the collection of said taxes so illegally, fraudulently, and wrongfully assessed and levied, has advertised the same for sale, and intends to expose said property of the plaintiff for sale, at public tax sale, and to sell the same, for the purpose of collecting the whole sum of said taxes, thereby casting a further cloud upon the plaintiff’s title to his said property, to his (the plaintiff’s) great and irreparable injury and damage. From a plat attached to the complaint, it appears that lot 7 is about one block distant from the other lots mentioned.

To this complaint the defendants interposed a general demurrer. After a hearing upon the demurrer, the district court overruled it, and, counsel for defendants electing to stand on the demurrer, the court ordered judgment in favor of the plaintiff that a perpetual injunction issue restraining defendant Hinds and his successors from proceeding with the sale. From this judgment defendants have appealed.

The defendants insist that the complaint is not sufficient to sustain the judgment of the distinct court, because its allegations are defective in two particulars, to wit:

1. That it fails to allege a tender of any part of the taxes due for the year 1890; and,

2. That no relief was seasonably sought from the board of county commissioners of Silver Bow county, sitting as a board of equalization, for the purpose of correcting the assessment.

The assessment was made under the provisions of the Laws of the 15th Extra Session of 1887 (page 82), as amended by the Laws of 1889, 16th Session (page 219). Under amended section 11 of this act (section 1, Act of 1889), it was the duty of the taxpayer, upon demand by the assessor, to make out a statement under oath containing a list of all his property, for the purpose of taxation. Under amended section 15 (section 5, Act of 1889), it was the duty of the assessor thereupon to determine and fix the true value of all items of property in-eluded in such statement, and to enter the same opposite each item, so that, when completed, such statement should truly and distinctly show ‘ ‘the number of town or city lots, giving the description and the value thereof.5 ’ Section 22 provided that upon the completion of the roll by the assessor, and on the third Monday of September, and from day to day thereafter, the board of commissioners of the county should sit as a board of equalization, ‘ ‘and any person feeling aggrieved by any valuation or amount of property listed, or by any other fact, appearing on such assessment, may apply to such board for the correction thereof.5 ’ The board was authorized thereupon to make such correction.

Questions arising out of assessments made under the provisions of this statute have been before this court in several cases, and we are of the opinion that the precise one involved in this case has been settled adversely to the plaintiff. In Northern Pac. Railroad Co. v. Patterson, 10 Mont. 93, 24 Pac. 704, an injunction was sought to restrain a sale of lands for taxes delinquent for the year of 1889. A part of the lands was alleged to be exempt from taxation under the laws of the territory of Montana, and as to the ocher lands — -which were town lots — the allegation was that the assessment was void, because the valuation made thereon was in gross, and not in conformity with the provisions of the statute. This court held, after an examination of the adjudicated cases, that the complaint was bad, in that it failed to allege a tender of the taxes delinquent upon that part of the lands not exempt, this amount being apparent from the assessment, and also in that it failed to show that the plaintiff had applied to the board of equalization to correct the errors complained of. The question arose in that case on demurrer. The same question was again presented, with others, in Ward et al. v. Board of Commissioners of Gallatin County, 12 Mont. 23, 29 Pac. 658. The treasurer o.f Gallatin county had sold the lands of the plaintiff for taxes delinquent for the year 1889. These lands, owned in separate parcels, not adjoining, had been assessed and valued in a lump sum, together with certain personal property. The whole amount of the lands had been sold for the taxes due upon them, and also upon the personal property. The time for redemption having expired, the treasurer was about to issue his deed to the purchaser. Suit was brought to set aside the sale and to enjoin the issuance of the deed. The complaint was by the lower court held bad on demurrer, and upon appeal to this court the judgment was affirmed. Chief Justice Blake, approving Northern Pac. Railroad Co. v. Patterson, supra, uses the following language: “The principles which were laid down in Northern Pac. Railroad Co. v. Patterson 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.And again, in another part of the opinion: “We cite again the case of Ralroad 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. ” We agree with the conclusion reached that a court of equity will not grant relief to a taxpayer when the only ground alleged to invoke its aid is an irregularity in the assessment. In Casey v. Wright, 14 Mont. 315, 36 Pac. 191, the plaintiff sought to, set aside a tax deed issued to the defendant by the treasurer of Custer County to lots 1, 2 and 3, block 81, of Miles City, and to have it removed as a cloud from his title. The ground of complaint was that these lots had been assessed in gross, and that in making the sale the treasurer had sold them in gross with other lots. This assessment had been made for the year 1888 under the act of 1887, supra, the provisions of which were substantially the same as those of the amended act. The district court sustained a general demurrer to the complaint, and this court affirmed the judgment, citing, with approval, Railroad Co. v. Patterson and Ward v. Commissioners, supra, upon the ground that the plaintiff could not be heard to complain of an irregularity in the assessment so long as no tender of the taxes j ustly due had been made, and no showing was made of injustice or injury to the plaintiff resulting from the assessment. In the subsequent case of First National Bank v. Bailey, 15 Mont. 301, 39 Pac. 83, the case of Railroad Co. v Patterson, supra, was again cited with approval upon the point that, where the plaintiff had failed to apply seasonably to the board of county Commissioners for the correction of an irregularity in the assessment, he was not entitled to any relief from a court of equity. This case arose upon an assessment made under the provisions of section 6 of the act of 1891, substantially' the same as the provisions of the act of 1887, cited supra. In the case under consideration the plaintiff does not avoid the consequences of the rule laid down in the cases cited. He fails to show that he attempted to have the irregularity complained of corrected by application to the tribunal provided by law for that purpose; nor does he allege any excuse for not doing so. This failure on his part is, in itself, sufficient ground for denying him the relief sought herein.

We think the complaint bad, also, on the ground that the plaintiff does not offer to pay taxes admittedly just and due to the county and state. He is adroit in attempting to evade the rule of the cases just cited by claiming that he has no way of determining the amount due upon lot 7 of block 18, because he cannot fix from the gross valuation of the lots the amount due thereon. It will be noted, however, that he alleges that he is the owner of this lot. He does not say whether he was also the owner at the time the assessment was made. Again, in another part of the complaint, he alleges ‘ ‘that it is impossible for this plaintiff, who is now the owner of said lot, * * * to remove said taxes, ’ ’ etc. From this condition of the pleading we are left to make the inference (and we think it a fair one) either that he was the owner of all the lots assessed in gross in 1890, or that he has purchased the one in controversy since that time. Inasmuch as no complaint is made of the assessment other than that the valuation was made in gross, we presume that the return was properly made to the assessor by the owner under the provisions of section 14, supra, and that it was the assessor’s fault that the valuation was made as it was. If the plaintiff was the owner of all the lots, and still is, he can easily know what it is incumbent upon him to pay, no matter what the irregularity of the assessment was. As no complaint is made that the tax imposed is unlawful or unjust, except upon the ground that the assessment is irregular, it is clear that he should pay the whole amount of taxes assessed. If he purchased from the owner after the assessment was made, and the burden was then upon the property, he cannot complain to this court that he has been wronged in any respect, — his remedy is against his grantor. To hold otherwise would be to say that the owner of the property could be excused from the performance of his duty by selling out his property to different purchasers, thus escaping liability himself, and clothing the purchasers with such equities that they can escape also. Again, if we are to infer that the plaintiff owned the lots at the time of the levy, but has since sold all but the one in controversy, he is still at fault, because he should pay the full amount of taxes due upon all. In any event, he is not in position to claim, as he does, that he should be excused from tendering the amount of taxes due.

It is further urged by the defendants that the demurrer should have been sustained under the provisions of sections 4023-4026 of the Political Code, prohibiting the issuance of an injunction to restrain the collection of taxes except in unusual cases, and providing a remedy'for cases where the tax is deemed to be unlawful. As we have already concluded upon other grounds that the judgment cannot be sustained, we do not deem it necessary to enter into a discussion of these provisions.

Plaintiff insists that the conclusion reached by this ccxrt in the cases cited, that an assessment in gross is a mere irregularity, is not supported by the weight of authority. We do not feel inclined to examine the authorities to determine the correctness of this claim. These cases were decided after such examination, and the rule laid down by them has become so well established in this jurisdiction that we do not feel disposed to disturb it, it being apparent that no substantial injury or injustice will result from observing the rule of stare decisis.

The judgment is reversed, and the cause is remanded to the district court, with directions to sustain the demurrer.

Peversed and remanded.