Lockey v. Walker

31 P. 639, 12 Mont. 577, 1892 Mont. LEXIS 82

• Court: Montana Supreme Court
• Decided: November 28, 1892
• Status: Published

Opinion

Harwood, J.

This action involves questions relating to the iievy and collection of taxes by the municipal government of the •city of Helena. The action was instituted to restrain the treasurer of said city, by injunction, from proceeding to sell certain •real estate owned by appellant to enforce collection of taxes '.levied thereon in the year 1891 by said city. The complaint ¡alleges the municipal corporate character of said city; the official capacity of defendant as treasurer thereof; plaintiff’s ownership of the real estate in question, and description thereof; that defendant,'acting in his official character as such treasurer, had advertised for sale, and was about to sell said property, at a time stated, for alleged delinquent taxes assumed to have been levied thereon by said city in the year 1891, and then proceeds to allege specifically the failure on the part of the city officers and agents to perform each and every act and proceeding required by the ordinance of said city, as to the listing of said property for assessment, by separate parcels, under the fSame of the owner, giving the value of the grouud and improvements separately, or to require from the owner any such assessment list, or to give notice of tbe meeting of the city council as a board of equalization ; that said council failed to convene as such board, or to perform any of the duties thereof, as required by the ordinance of said city; that no list of said delinquent taxes was made out or delivered to the city attorney, as required by the ordinance of said city; and that no suit has been commenced to recover said alleged taxes. On the commencement of the action, appellant moved the court for the issuance of an injunction restraining the sale of said real estate, as contemplated and threatened by respondent, pending the determination of the action. But the court ordered respondent to show cause, if any existed, why such temporary injunction should not issue, and upon the showing made pursuant to that order, by affidavits accompanied by duly authenticated copies of the public records, as to the proceedings whereby said taxes were levied, the court refused to grant the order of injunction prayed for; and from that order, refusing to grant such injunction, this appeal is prosecuted.

Three propositions of law are maintained by appellant’s counsel, which will be considered in the order treated on the argument of this appeal. The first is “ whether, after the adoption of the Constitution and the admission of the State into the Union, the city of Helena retained the right to exercise the taxing powers conferred by the Constitution, aside and distinct from the general revenue law of the State.” After reviewing the provisions of the city charter adopted prior to, and existing when the organic change from territorial to State form of government took place, and the various provisions of the Constitution, and the statutes passed by the State legislature, relating to levy and collection of taxes for State, county, and municipal purposes, appellant’s counsel affirms “that the assessment and levy of taxes under the old ordinance of the city of Helena were void, for the reason that the ordinances were repealed by the adoption of the Constitution and the subsequent passage of the Revenue Law of 1891.” The tax in question was levied as tbe result of proceedings in part under the general revenue law of the State, and in part pursuant to the charter and ordinances of said city; that is, the assessment lists and valuation of property for taxation made by the State and county authorities under the provisions of the general revenue law for the year 1891 were adopted by the city authorities as the basis for taxation of all taxable property lying within the corporate limits of the city of Helena, for municipal purposes, for the year 1891; and upon that assessment the municipal taxes for that year were levied by the city pursuant to the provisions of its charter and ordinances. And the sale sought to be restrained is about to be made, as provided by ordinance, to enforce collection of the tax so levied on appellant’s real estate. It is that part of said proceedings assumed to be carried out under the authority of the city charter and ordinance which is challenged by appellant as unlawful and void, because, according to the contention of his counsel, all proceedings for the assessment, levy, and collection of municipal taxes, since the adoption of the Constitution, must be proceeded with under the general revenue law of the State, and not under the ordinances of said city.

The provisions of the Constitution bearing immediately upon the subject are as follows: “The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town, or municipal purposes; but it may by law vest in the corporate authorities thereof powers to assess and collect taxes for such purposes.” (§ 4, art. xii.) “Taxes for city, town, and school purposes may be levied on all subjects and objects of taxation; but the assessed valuation of any property shall not exceed the valuation of the same property for State and county purposes.” (§ 5, art. xii.) “Taxes shall be levied and collected by general laws, and for public purposes, only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” (§ 11, art. xii.) The 49th section ®f an act passed by the second session of the legislative assembly of this State, entitled “An act concerning revenue,” provides as follows: “The assessment made by the county assessor, and that of the State board of equalization, as apportioned by the board of county commissioners to each city, town, school, road, or other district, in their respective counties, is the only basis for taxation for the county, or any subdivision thereof, except in incorporated cities and towns, and may also be taken as such basis in incorporated cities and towns, when the proper authorities may so elect.”

The provisions of the section of the statute just quoted appear to be in harmony with the Constitution; and in our opinion the .action of the proper municipal authorities of the city of Helena, in electing to take the assessment made by the county and State assessing authorities, under the provisions of the statute above quoted, as the assessment for the levy of municipal taxes on property within said city, constituted a legal assessment; and that the levy of lawful taxes thereon by the city for municipal purposes, according to provisions of the charter and ordinances ■of said city, was a legal levy. We find no provisions of the Constitution or statute which, either expressly or by implication, take away the power of incorporated cities to levy and collect lawful taxes, in conformity with the provisions of the charter and lawful ordinances passed thereunder.

The State revenue law has not provided for the levy and •collecting of municipal taxes for the purposes of incorporated cities, together with State and county taxes. It might be wise if such a system were adopted, so as to consolidate the tax-gathering into one system of proceedings, as to assessment^ levy, and collection thereof, and thereby save the citizens the inconvenience of dealing with two or more distinct tax-gathering authorities, pursuing separate lines of action, and also save the public and private expense attending the same, and bring together, under one system of proceedings and records, the liens upon property which accrue by reason of the levy and ■enforcement of taxes. But that is a subject for legislative consideration. The statute adopted since the Constitution provides that one assessment made by the State and county authorities might suffice as the basis upon which to levy all State, county, and municipal taxes authorized by law; and this was some advancement towards a desirable simplification of the subject. But the measure has not been carried beyond that provision. As the law stands, it leaves with municipal authorities of incorporated cities the power to levy and collect the taxes authorized by law for municipal purposes. The provisions of section 4 •of article xii. of the Constitution contemplate that such authority may be vested in the city government.

The second proposition contended for by appellant is that the city has no authority to enforce collection of said tax by direct sale of the land on which the same was levied, after advertisement thereof, in the manner provided by ordinance. The city charter provides: “ The city council shall have power and authority to levy aud collect ad valorem taxes, for city purposes, upon all taxable property, real, personal, and mixed, except as herein excepted, within the city limits, not exceeding three mills per annum upon the assessed value thereof for general purposes, and not exceeding three mills per annum upon the assessed value thereof for fire department purposes, in addition to the tax authorized to be levied for street purposes, under the provisions of the act of the legislative assembly of Montana entitled ‘An act to provide for the levy of street taxes in incorporated towns and cities/ approved March 7, 1883, and may enforce the payment of such taxes in any manner that may be prescribed by ordinance, not repugnant to the Constitution of the United States or the Organic Act of this Territory.” (§ 1, City Charter, Sess. Laws, 1885.) The power granted by this section of the charter is not only “to levy and collect” ad valorem taxes for city purposes, but the power is also granted to “ enforce the payment of such taxes in any manner that may be prescribed by ordinance, not repugnant to the Constitution of the United States or the Organic Act of this Territory.” The Organic Act has been superseded by our State Constitution, and these statutes have been continued in force, as modified by any provisions of the State Constitution, which provides otherwise. It is not contended, however, in respect to the point now under consideration, that there is any repugnancy between this statute and the provisions of the State Constitution.

The point made by appellant on this branch of the case is that the authority granted by the charter does not confer power on the city to enforce collection of the general taxes authorized to be levied by direct sale of the real estate on which the same was levied, after due notice as provided by ordinance. It is apparent from the provisions of the charter just quoted that the legislature took into consideration the matter of the enforcement of the general tax authorized to be levied; and we cannot doubt, from the terms inserted in the charter, that the legisIature contemplated the enforcement of the tax by those ordinary methods generally employed in such cases. When the legislature made this provision, it understood that the usual maimer of enforcing general taxes on real estate, for municipal as well as State and county purposes, was by applying the same as a lien thereon, and, if not paid within the time prescribed, to cause such real estate to be sold, after giving proper public notice as required by law. In delivering the opinion of thr> court in the case of Kelly v. Pittsburgh, 104 U. S. 80, Mr. Justice Miller observed that “taxes have not, as a general rule, in this country since its independence, nor in England before that time, been collected by regular judicial proceedings. The necessities of government, the nature of the duty to be performed, and the customary usages of the people, have established a different procedure, which, in regard to that matter, is, and always has been, due process of law.”

The conclusion we arrive at, after consideration of the question raised and the authorities on this subject, is that the terms of the charter are sufficient to authorize the city to pursue the usual method as to the enforcement of the general taxes authorized to be levied, provided the proceedings prescribed by ordinance in that regard are not repugnant to the provisions of the Constitution and general statutes of the State. Our reason for so holding is that to conclude otherwise would seem to deny any meaning or force to the provision of the charter that the city “ may enforce payment of such tax in any manner that may be prescribed by ordinance, not repugnant” to the general fundamental law of the jurisdiction.

The other provision of the charter, empowering the city “ to levy and collect ” ad valorem taxes, would be sufficient to enable it to enforce collection by ordinary judicial proceedings, without the clause expressly providing for the enforcement thereof. (2 Dillon on Municipal Corporations, § 818, and cases cited.) Therefore, unless the latter clause is held to grant to the city power to provide for the enforcement of said taxes by some usual method not contrary to the Constitution and general laws of tlfe State, other than by ordinary judicial proceeding, the clause under consideration would seem to stand as nugatory j for without it the city had power to sue by ordinary action to enforce collection of taxes lawfully levied. We have been unable to find authority or reason for denying to those terms of the charter any force. The cases cited by appellant as supporting his position relate to the enforcement of special or extraordinary taxes, or levies imposed on abutting property for certain local improvements, such as paving streets and walks and the like, instead of the general tax for general municipal purposes authorized by the charter, as in the case at bar. There can be no doubt that a distinction exists between the two classes of levy. Such distinction is recognized throughout the authorities upon the subject.

The third proposition treated by counsel relates to the remedy sought to be invoked in this action. But this question becomes immaterial, in view of the conclusion which we have reached upon the main propositions involved in the case.

The order of the court below, appealed from, is affirmed.

Affirmed.

Blake, C. J., and De Witt, J., concur.