Juab County v. Bailey

140 P. 764, 44 Utah 377, 1914 Utah LEXIS 39

• Court: Utah Supreme Court
• Decided: April 25, 1914
• Docket: No. 2595
• Status: Published

Opinion

FBICK, J.

Tbe plaintiff, Juab County, filled an original application to tbis court for a writ of mandate directed to tbe defendants William Bailey, Harden Bennion, John Watson and Amos S. Gabbott, “as tbe State Board of Equalization of Utah,” to require said board to gire tbe plaintiff an opportunity to present evidence to it and to grant it a bearing with, respect to tbe apportionment of tbe net proceeds derived from what is known as tbe Iron Blossom mine, situate in both Juab and Utab Counties in tbis state, owned by tbe Iron Blossom Consolidated Mining Company. Tbe board interposed a general demurrer to tbe application. Tbe apportionment of tbe net proceeds derived from said mine was made by said board pursuant to tbe following provisions of our statutes: C.omp. Laws 1907, section 2566, as amended by Laws Utah 1909, p. 99, in substance provides that every person or corporation engaged in metal mining “must each year make out a statement of tbe gross yield of tbe above-named metals or minerals from each mine owned or worked by such person, corporation or association during tbe year next preceding tbe first Monday in January and tbe value thereof.” Tbe statement must be verified and must be filed with tbe Board of Equalization “on or before tbe second Monday in February in each year.” Any mining company or person w'ho fails to furnish tbe statement within tbe time and in tbe manner prescribed by tbe statute is subject to punishment. Section 2560, as amended as aforesaid, in part provides that tbe State Board of Equalization must meet on tbe first Monday in March and continue in open session until tbe first Monday in May “and later if tbe business of tbe board requires it.” At such meeting tbe board must “assess at their actual value at twelve o’clock m. on tbe first day of January of each year . . . tbe net actual proceeds of all mines or mining claims.” All property must.be assessed in tbe name of tbe owner and “as soon as such assessment is completed a copy of tbe same must be furnished to the owner. On tbe third Monday in May tbe board shall again reconvene in open session . . . and continue in session not later than the third Monday in June and at said session the owner of any property assessed by said Board of Equalization may apply to have the same corrected in any particular and the hoard may correct and increase or lower the assessment made-by it.” After all applications for corrections are disposed of, the board must apportion the assessment made by it to the several counties as directed. With regard to the apportionment of the net proceeds, the statute provides, “The net proceeds of all mines and mining claims shall be apportioned respectively to the counties in which the mines or mining! claims assessed for the same are situate.” Section 2561, as amended, provides, “The State Board of Equalization shall, before the fourth Monday in June, transmit by mail to the county auditor of each county to which such opportionment has been made a statement showing the property assessed and the assessed value of. the_ same as fixed and apportioned to the county.” Upon receipt of the statement the county auditor is required to enter the same in the “assessment book or roll as aforesaid which shows the total value of all property for taxation of the county.” The county commissioners, acting as a board of equalization for the county, after the receipt of the statement from the county auditor, must apportion the property assessed “to the several city, town, school, road, or other lesser taxing district in the county,” in accordance with the provisions of the statute. Section 2563 provides, “If the owner of any. property assessed by the State Board of Equalization is dissatisfied with the assessment made by such board such owner may, between the third Monday in May and the second Monday in June, apply to the board to have the same corrected in any particular and the board may correct and increase or lower the assessment made hy it so as to equalize the same with the amount of other property in the state.” Section 2584 prescribes specially the powers and duties conferred and imposed upon the State Board of Equalization. One of the duties imposed is that the board shall -transmit “on or before the fourth Monday in June to the county auditor of each county” the apportionment of the assessment made by the board.

We have thus stated the powers and duties of the State Board of Equalization with respect to the assessment and apportionment of property as well as may be in a general statement. The said board, after having -complied with the foregoing provisions, must, before the last Monday of July of each year, determine the rate of the state tax to be levied and collected. Immediately after such rate is determined, the board must transmit the rate agreed upon to the county auditor of each county and also to the State Auditor. The county commissioners of each county “must, between the first Monday in July and the second Monday of August of each year, fix the rate of county tax.” It will thus be seen that it is absolutely necessary that the assessment, equalization, and apportionment of all property be completed within a certain period of time which is prescribed by the statute for the reason that the rate of taxation can only be determined and the levies made for the purpose of raising the necessary revenues after the valuation and apportionments are finally determined and certified. The plaintiff in its application, however, alleges that in making its report to the State Board of Equalization the Iron Blossom Consolidated Mining Company did not truthfully state the facts with regard to the county from which the ores producing the net proceeds which were reported for assessment were taken. It is contended that the ores from which the net proceeds were derived were taken from mining claims situate in Juab County, but that notwithstanding that fact such mining company reported that the same were taken from Utah County, and that the said Board of Equalization adopted the report of said mining company and thus apportioned said net proceeds, or at least a very large portion thereof, to Utah County, when the same should have been apportioned to Juab County, the plaintiff herein. The plaintiff county is therefore, it is contended, deprived of a large amount of property for taxation. Plaintiff also alleges in its application for a writ that it was not aware of the fact that the mining company bad made the report as aforesaid until the 1st day of November, 1913, whereupon it, on the 14th day of that month, the day before the tax became delinquent, made an application to the State Board of Equalization to grant it a hearing and to allow it to produce evidence to prove that a specified amount of the net proceeds reported by said mining company should be apportioned to the plaintiff county and not to Utah County as was done by said board. The foregoing fact is alleged notwithstanding the fact that it is not denied that the apportionment as made by the State Board of Equalization was in fact transmitted to the proper officer of the plaintiff county in June as required-by the statute. The State Board of Equalization refused to grant plaintiff its request, and hence this application.

"We shall assume, without deciding and without expressing an opinion either way upon the question, that the State Board of Equalization has the authority to grant a hearing for the purposes stated in the application when such application is made to said board at any time before the apportionment on the net proceeds of mines is transmitted to the several counties as required by the statute. The question involved and to be decided now, however, is: Can this court by writ of mandate coerce said board to grant a hearing for the purposes aforesaid after the apportionments have been made, the rate of taxation fixed in accordance with such ap-portionments, and all levies have been made pursuant thereto ? Plaintiff alleges that it has a legal right to have apportioned to it all the net proceeds derived from all mines and mining claims which are situated in Juab County, and hence . it is the duty of the State Board of Equalization to make the apportionment to said county as the law requires and not in , accordance with the incorrect report made by the n-ifm'ng company. It is further alleged that the statute fixes no time within which a protest may be made or a hearing had, nor does it provide for any notice to be given to any county of the filing of a statement by the mining company. It is also urged that the plaintiff had no knowledge of the falsity of the statement filed by the mining company until November 1st, at wbicb time all the apportionments bad been made and tbe rate of taxation bad been determined. Of course, all tbe foregoing allegations, if material, are admitted by tbe general demurrer. But even tbougb tbey be admitted, does tbe conclusion tbat plaintiff is now entitled to a bearing upon tbe question necessarily follow? We think not. The-plaintiff county was charged with knowledge respecting tbe provisions of tbe statute the same as every one else is charged with knowledge thereof. It therefore knew tbat tbe mining' company must report tbe net proceeds of its mine to the State Board of Equalization within tbe time fixed by tbe statute and tbat tbe board would within a certain time also-fixed by tbe same statute have to apportion said net proceeds either to Utah County or to tbe plaintiff.

We are of tbe opinion therefore tbat, if plaintiff desired to assail tbe correctness of the report made by tbe mining company, it was required to do so at some time before tbe apportionment was finally transmitted. To require tbe State Board of Equalization to reopen tbe matter after it has made tbe apportionment and tbe rate of taxation has been determined must result in producing gross uncertainty with respect to tbe amount of revenue any particular county will receive for a particular year. Suppose it should ultimately be decided tbat Utah County should surrender $500,000 of net proceeds to Juab County after Utah County has determined tbe rate of taxation upon tbe whole amount of property within said county including said $500,000, will not tbe amount of revenue for Utah County be reduced very materially while tbe amount for Juab County will be correspondingly increased? Utah County may thus suffer a deficit in its revenues, while Juab County may have a surplus. Tbe purpose of tbe statute in requiring certain .things to be done within a certain time is to prevent such incongruous results. In view tbat under our Constitution no debt can be incurred or obligation assumed by any county in excess of tbe revenues derived from tbe assessment of property for tbe current year malees it unnecessary for us to further dwell upon tbe importance tbat time is of tbe essence with regard to certain acts that must be performed either by the taxpayer or by the authorities who have in charge the assessment, apportionment, and determination .of the tax rate. Nor does the allegation in the application that Utah County has been enjoined from disbursing the money derived from the net proceeds in question here help the matter. Indeed, it only emphasizes the fact that the amount of revenue a county may rely upon should not be kept in doubt and uncertainty. In the absence of an express provision of some statute to that effect, what power has the State Board ■of Equalization to grant a hearing the result of which might be the cause of frustrating the very purpose of the statute to which we have called attention ? If there is no law requiring the State Board of Equalization to act in that regard, this court can create none.

Nor do we see why Juab County should be placed in a better plight than an aggrieved property owner would be. Suppose a property owner were excessively assessed, but failed to receive the notice of his assessment for some reason, and therefore failed to appear at the proper time and place to make his protest to the board of equalization, could he, after the whole matter had been closed, coerce that board by a writ •of mandate to reopen his case and give him ai hearing upon the matter? We think no one would so contend. It is urged, however, that in the taxpayer’s case'there is a notice provided, and if such a notice is issued and mailed as provided by the statute it is his misfortune that he does not receive it in time to make his protest. As regards the plaintiff’s rights in the apportionment of net proceeds, it requires no notice, since it must know just when all persons engaged in mining within its- limits must make reports respecting net proceeds for taxation. It also knows just when the apportionment thereof must be made. The taxpayer, however, cannot know in advance at what value his property will be assessed and hence he is powerless to act before receiving notice. It certainly would be impractical to require each taxpayer to visit the Board of Equalization to find out concerning his assessment. Besides, the statute provides for notice in the case of a taxpayer, and the statute in these things must control. Assuming therefore that plaintiff may assail the correctness of the reports made by those engaged in mining, it has ample time and opportunity before the apportionment is transmitted to ask the State Board of Equalization for a, hearing upon that matter if a hearing is necessary. If plaintiff can prevail in the present application, why can it not open up the apportionment made for the year 1912 and for the preceding year?' Clearly the property owner who may have been excessively assessed would be denied such relief, and we cannot see how plaintiff can be given any greater rights. We are of the opinion that the authority of the State Board of Equalization to grant plaintiff’s application is, to say the least, a matter of serious doubt. • It is elementary that unless the right to have the act which is demanded from the officer, board, or tribunal is clear, and the duty to perform the same is equally clear, the writ will not issue.

Mechem on Public Officers, in sections 937 and 938, states the rule thus:

“Such being the nature and functions of the writ, it is well settled that it can be resorted to only for the purpose of enforcing the performance of a specific duty already existing and clearly imposed upon the officer either by express law or as one of the necessary functions or attributes of the office which he holds. It is but a restatement of the previous rule, and it is equally well settled, that the writ will not be issued to enforce a doubtful right, nor where the legal duty is not clear. And the party applying for the writ must show by his application that all the conditions exist which are necessary to create the duty. They must not be left to inference.”

Nor does the maxim that whenever there is a wrong there is a corresponding remedy apply to the assessment, apportionment, and levy of taxes. Many irregularities which arise in the imposition and enforcement of taxes must go unredressed, either because the victim of the wrong does not move in time, or because in the nature of things redress is impracticable or is not provided for by law. Judge Cooley, in the concluding paragraph of his excellent work on taxation, sums up in most forcible terms the utter inability of the law to afford redress for all wrongs and irregularities in that regard. He says:

“It will be apparent from what has appeared in this chapter that many serious errors may.be committed and many wrongs done in the exercise of the power to tax, which the parties wronged must submit to, because the law can afford them no redress whatever. All injuries which result from an exercise of political or legislative authority are to be included in this category; and these are often the most serious which, in matters of taxation, the people are visited with. In all such cases, the authority of the judiciary is confined to an inquiry into the jurisdictional question, and, if it appears that the political or legislative body has kept within the limits of its authority, the judiciary must pause there, and admit its incoippetency to inquire into wrongs which, within those limits, may have been committed. The wrongs which spring from errors on the part of assessors are, in a large proportion of all the cases, as little susceptible of correction, unless the legislature shall have provided a remedy by statute. Courts'of equity have but a limited jurisdiction, extending to few cases beside those in which the impelling motive on the part of the assessors has been to do injustice and inflict injury. The chief protection of the citizen must at last be sought in the intelligence and integrity of public officers, and where these fail, as too often they do, the injury must frequently prove irreparable.” (2 Cooley, Tax’n, p. 1523).

But the right of the plaintiff to invoke the action of the State Board of Equalization and the authority of that board to grant the relief prayed for at this time and under the circumstances disclosed in the application are too doubtful to authorize us to coerce that board to grant the hearing requested by the plaintiff.

The peremptory writ should therefore be, and it accordingly is, denied, at plaintiff’s costs.

McCAKTY, C. J., and STRAUB, J., concur.