Ward v. Board of Commissioners

29 P. 658, 12 Mont. 23, 1892 Mont. LEXIS 34

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

Opinions

Blake, C. J.

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 upon the said personal property listed as aforesaid; nor did he sell or attempt to sell any of said personal property for any tax due or claimed to be due thereon, or on any of said property, for the year 1889.....That thereafter, upon the seventeenth day of February, A. D. 1890, and for twenty days thereafter, Sundays and legal holidays excepted, the said James L. Patterson, as treasurer of said county of Gallatin, without any right or authority, and without having given the notice prescribed by law, offered the said lands, and all thereof, for sale, to pay the taxes, interest, costs of publication, and penalties, which he claimed to be due and owing from the plaintiffs as for taxes upon said property, and delinquent for the year 1889..... No notice of such offering for sale of said lands, and no list of the land and lots subject to sale for taxes, was ever given or published by the said treasurer, stating the amount of tax due on each parcel of land, or any thereof, after adding the lawful penalty and costs of advertising or otherwise, or stating any sum or amount whatever as being due thereon for taxes or otherwise, and no other notice or list was given or published than that contained in ” a certain paper hereinafter set forth. That said treasurer, “under and by virtue and authority alone of the proceedings, offer, and notice aforesaid, sold and bid,” March 13, 1890, “ the whole of said real estate off to and in the name of the said county of Gallatin for the sum of $220.72 • and thereafter, on the date last aforesaid, the said treasurer issued to the county of Gallatin a certificate of purchase for the whole of said pieces and parcels of land, .... which certificate is now held by said county, and is on file in the office of the clerk and recorder thereof; and that in making said sale and so bidding off said lands the said treasurer did not offer nor sell the same in separate parcels, but altogether, as if the same were only one parcel of land.”

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 and parcels of land were not offered for sale or sold by said treasurer for the taxes unpaid or claimed to be unpaid thereon, or for the taxes unpaid or claimed to be unpaid on each of said parcels of land, but for the whole amount of the taxes claimed from these plaintiffs upon all of their property aforesaid, real and personal, for the year 1889; and the sum so demanded by said treasurer for taxes paid upon said lands was greatly in excess of the amount of taxes claimed to be unpaid thereon as aforesaid, including costs and charges aforesaid.”

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 v. Halsey, 82 Cal. 209.) This cause of the demurrer should have been overruled, and we presume that this was the ruling of the court thereon.

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 seems proper to direct our attention to what is not set forth in the complaint. There is no averment of a tender by the appellants of any sum in payment of any portion of the taxes which was due from them for the year 1889, and it is not claimed that their property was exempt from taxation by virtue of any provision of the Constitution or a statute. Nor is it alleged that the appellants ever sought redress by any appeal to the board of equalization of Gallatin County.

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. Freeman, 1 Wall. 398, in which it was held, where there was no mark, word, or character on the record of the judgment to indicate the amount of the taxes for which it was rendered against the land, the judgment was void. The facts of that case are very similar to the case under consideration.”

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 objected to their introduction on the ground 'that there are no dollar marks placed to the figures and numbers purporting to indicate the amount of the tax due or assessed, or to any figures or numbers therein, and that it has no other marks indicating what is meant by those figures or numbers.’ The evidence was received and an exception taken.” (See, also, Bird v. Perkins, 33 Mich. 28.)

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. This rule is founded, as we have already observed, on the necessity that a judgment should be for a definite sum, so expressed as not to be left to conjecture. But when it is sought to invalidate the payment of taxes on analogous grounds, other principles are to be considered.” We are of the opinion that the most reasonable conclusion upon these facts and the weight of authority are opposed to the contention of the appellants, and that the omission of the dollar mark, when the position of the figures, the value of the property, or some other fact indicates the meaning of the numerals in said exhibit, is an informality which does not vitiate the assessment. (Stats. 15th Extra Sess. p. 92, § 24.) Notwithstanding this holding, we desire to add that we do not sanction this careless method of transacting business of such public importance. Our statutes do not contemplate the entering of a judgment or similar proceedings which have been prescribed in Illinois or other States, and the conditions of this case are analogous to them. The word “dollar” is used in the certificate of sale, which appears as an exhibit of the complaint.

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 contrary is alleged, that the description in the assessment was identical with that contained in the statement.” It can be presumed under the authorities that the assessor of Gallatin County adopted the description of the land which had been prepared by the appellants. (Albany Brewing Co. v. Meriden, 48 Conn. 243.)

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 per cent of such taxes shall be added thereto, and collected as a portion of said taxes, and it shall be the duty of the tax collector, immediately after the first day of January, to seize any personal property belonging to, or which may have been assessed to, any tax-payer who shall then be delinquent, and sell the same as provided by law.” (Stats. 16th Sess. p. 225, § 9.) “In cases where sufficient personal property liable to seizure cannot be found to pay the tax assessed against any person .... the treasurer may sue for and collect such tax by attachment, garnishment, or otherwise.” (Stats. 15th Extra Sess. p. 93, § 28.) The last section confides in the officer the power of commencing and maintaining a civil action, but its exercise has been made a subject of discretion. Could the tax collector of Gallatin County proceed rightfully against the real estate of the appellants after his failure to seize and sell their personal property? The authorities in the negative are controlled by statutes which are unlike the provisions before us. The legislatures in some States have declared in express terms that the land of the delinquent tax-payer shall not be sold until his personal property has been seized and disposed of, or there has been a return by some officer that the party had no goods which could be found. No requirements of this nature are embodied in our laws, and no consequences affecting the owners of property attach to the omission of the tax collector to discharge his duty in this regard. Mr. Cooley, in his work on Taxation, says s “ Under some tax laws the same officer who collects the taxes is empowered to make sale of the lauds of delinquents. In such cases no return is required, though the filing of some official document showing the delinquency is sometimes provided for. Such a document takes the place of a collector’s return, and will be governed by the rules above laid down. If none is required by law, the collector is allowed to proceed and sell lands on his own knowledge of the delinquency.” (p. 309.) Under the statute in effect in the year 1889 the county treasurer was the collector of taxes in Gallatin County, and “every tax” which was due from the appellants was a lien upon their real property. The legislature has prescribed a co-ordinate or cumulative remedy by clothing the officer with the power to seize and sell the personal property of delinquent tax-payers, but we do not think it was the intention that the land which had been assessed should not be sold until this authority had been exercised. (State v. Newark, 42 N. J. L. 38; Thompson v. Roe, 22 How. 422; Smith v. Jones, 40 Ga. 39; Plant v. Eichberg, 65 Ga. 64.)

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 would fix this amount, and the form of the certificate would not be an obstacle. The complaint does not present any issue respecting the regularity of the certificate, or its legal effect, but alleges that the treasurer had no right to make any instrument of this character.

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.