The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-03-01
AN INJUNCTION REFUSED.
The District Court Will Not Grant
the Writ to MIR.
Jockey.
Treasurer Walkers Position In
the Tax Case Sustained by
Judge Buck.

Judge Buck.
Mr. Jockey VIII Appeal the Case to the
Supreme Court-Other Pro-
ceedIngs.
In thu suit Of Richard Lockey agsingt
City Treasurer Walker. Judge Buck, in de-
partment No. two of the district court,
rendered the following decision: In this
action the defendant. who is treasurer and
ex-officio collector and assessor OF the
city OF Helena, is required to show
cause why an order should not
issue restraining him from selling
certain real estate belonging to the plain
till, upon which it is claimed the city taxes
for 1891 are delinquent. From the COM
plant Of plaintiff and an affidavit OF de-
fendant on file, the court makes the
following statement Of the case: The plain
tiff is the owner Of the property sought to
BE- sold. Said property is within the city
of Helena. Plaintiff has paid no taxes upon
it for the year 1891. On the day upon which
the defendant was to sell the property this
SQUIRT. upon application of plaintiff, res
trained the sale. Defendant did not COM
plete the assessment Of city property until
Sept %, 1891. Tn revenue ordinance of the
city directs the assessor "to maks an
assessment Of all property within the city
limits, so far as possible, before the first
day Of August in each year" The reason
for his delay was that the state and county
boards Of equalization were engaged
in making changes in the assessed
valuations Of property in Lewis and
Clarke county until Aug. 10, 1891,
and he could not obtain access to
the corrected list Of these equalized
valuations until September, 1891. by reason
Of the fact that they were in the hands Of
the county clerk, who was engaged in max
ing copies Of them. Section s, Art. IL, of
Of the state constitution, prohibits city
property being assessed ut a higher rate
than the valuation placed upon it for state
and county taxes. Under the general reve-
nue. act of the state also defendant could
not have assessed certain classes of Prop
crty in tho city until after an equalization
of values by the state and county. De-
fendant adopted the county assessment of
property within the limits of Helena as the
basis of valuation for his assessment. Sec
ton 49, page 80, acts of the second session
of the legislature. provides "the assessment
made by the county assessor. 4 y u y y
may also be taken an such basis in moor
porated cities and towns when the proper
authorities may so elect" On account of
the delay in the completion Of the city
assessment. and contrary to the language
of the ordinance requiring the city council
e., Inu~y kh4 n ~ rSN~ An-N ~ 4 E..L ---J-
meeting in Septsmbe", no levy was made
until Sept. q. 1891.
The council did, however, sit AZ a board
of equalization at it's first regular meeting
in September, as required BY ordinance,
End held several adjourned meetings there
these meetings the plaintiff appeared be-
fore the board, and making no objection to
the valuation placed upon the property de-
scribed in his complaint. asked and OBJ
tanned a reduction in the assessment of q
number of city lots of which he was tho
owner. He has paid the city taxes for 1891
upon other pieces of real estate held by
him. In his complaint hs fails to auffi-
ciently allege that the taxes claimed to bs
delinquent arc excessive. and he makes no
offer to pay taxes for 1891 on the property
herein involved.
Counsel for plaintiff contend that the
constitution of the state c~ontemplates the
levy and collection of taxes in cities pursu-
ant to one general revenue law. and that,
therefore,, in the absence of such q law it ia
questionable whether the city of Helena.
incorporated as it is by a special charter,
has authority to levy and collect any taxes.
They concede, however, that the proper au-
thorities Of the city might have elected to
adopt the county assessment us q basis for
the city assessment. but deny that defend
ant could have 80 elected. They contend,
also, that the provisions of the revenue or
dlnance OF the CITY requiring the ASSESS
ment, equalization and levy Of taxes to be
made at or within certain dates, are man
datory, and, therefore, inasmuch as the de-
PENDANT and CITY council fail to observe
such dates their acts, in connection with
this assessment and levy of taxes, are void.
They further maintain that, under its char
ter, the city of Helena has no power, ex-
press or implied, to sell real estate to en-
force payment of delinquent taxes thereon.
The law reports are full of cases similar in
character to the ono here presented. aud it
is interesting to observe tho manifest re-
luctance evinced by the courts, particu-
larly in the decisions Of the later years, to
grant delinquent taxpayers relief by
injunction. A ready explanation of
this reluctance presents itself. As a
rule poor men and men of moderate means
paw their taxes without protest, and frankly
disclose to the assessor all the property
they own subject to taxation. Perhaps
their discharge of this duty of oitizensnip
il due rather to helrlessness han molina
ton, and they may merit no praise. But
on the other hand the wealthy and power
full %elasses, the very men who should real
lze. from q selfish standpoint at least, more
fully that the preservation of their pos.
sessions ID dependent pom IN orderly dis
charge of the functions of government,
which, in turn. is dependents upon the
public revenues derived from taxation,
generally seek to conceal their property in
every possible way, and to evade payment
or taxes on such portions of it as may be
discovered, by every technically that may
bs conceived in the minds of the skilled
lawyers whom their wealth enahles them to
employ. Hence the courts have found 1t
in this class Of cases to grant re-
lief by injunction to delinquent taxpayers
only when the facts presented, and sur
conditions, clearly and unequiv-.
ooally entitle those claiming it to this
exceptional remedy. An Injunction re-
the acts of public officers in con-
with the collection of public rev
enues should never be granted without q
most careful and searching scrutiny of the
facts upon which tho claim thereto is based.
Even II the taxes levied on plaintiffs
land are illegal, has he the right to stand
by for months without protest or resort to
tho courts and then at the last moment on
the very day his land ia to he sold invoke
the swift, sudden exceptional remedy of
He claims u cloud will be oast
his title if this land ia sold; that such
n sale will give rise to 4 multiplicity of
suits. and yet by simply paying these taxes
under protest and suing the city for their