The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-11-17
ASSESSING FLOATING LOGS.
troublesome Question to BE Argued
In Supreme Court.

1
Today in the supreme court will be
argued the suit OF Nehemiah p. Clarke.
the 81. Cloud lumberman, against the
BOARD Of county commissioners of
olearns county. The suit involves the
always troublesome problem of how
| loSs Hoatlng IN the streams of the state
shdll De assessed. Mr. Clarke insists
| that while he had but q, 0O0, 900 feet Of
| logs returnable for taxation in 1893
ne ne was was compelled to pay taxes on a.
0oo,oOo, part of the taxes being paid in
| minneapolis and part in ST. Cloud.
rms was the result Of the fact that in
the winter Of 1867 he had cut q. 600 600
Ieet Tor manufacture in the mills of
minneapolis, except that he planned to
nave perhaps 100000 cut at his place
or residence, st. Cloud. The division Of
the figures would depend upon the be-
! ginning OF the drives and the length of
! the saving season. The St Cloud as
SCISSOR assessed him for 4,0G0 900, and the
Minneapolis assessor for 14,00O 900, so
that Mr.. Clarke was 2,0O0 900 feet ahead
/ OF the game for a. moment. When the
| st Cloud board of equalization got at
his case, however, they insisted that as
st. Cloud was his residence, they were
! entitled to tax the whole 20, O0O, 600 and
tax it they did. The Minneapolis au-
thorities did not recognize the ST. Cloud
| idea and insisted on their claim, the re-
a.,
| 0O0,0oO feet of logs, two-fifths of which
were not apparent. The problem was
| referred to the state auditor, who de-
| cided that Minneapolis was entitled to
| the taxes on the logs cut there How
| ever, before this time the Stearns
county tax had already been collected,
| and an abatement was refused There
| upon an action was brought to recover
the amount of taxes upon the 1900 900
| feet enormously assessed at ST. Cloud
! This action was tried and judgment
rendered for the plaintiff; whereupon
| the defendant appealed to the supreme
| court and the decision of the lower
| court was reversed, the holding being
that on the facts as found the plaintiff
| could not recover. That action was
| then dismissed and all the facts here
| inbefore related and other pertinent
| facts were put in the form of q new
] complaint against the defendant. To
this complaint demurrer was inter
! posed which was OVerruled, the de-
PENDANT answered, the case was tried,
! judgment given for the plaintiff a sec
| ond time, and the case is now in the
supreme court upon an appeal from the
order Of the district court denying new
| trial.
| In his brief, G. W. Stewart, counsel
| for Clarke, argues:
ct is one of the elementary principles that
the delay OF a judicial tribunal shall not
impair any mans rights, and this principle
ought to be as applicable to the state auditor
where he has judicial functions to perform
as in any other case.
The Assignments of error not broad
enough to cover the main question in this
case; but | consider it prudent to discuss it
nevertheless. Assuming the decision in
Clarke VS.. County Commissioners A Mimi.
552 to be good law, can we recover under the
facts established and found by the court in
this case? What was determined in that case
was that action could not be maintained
to recover taxes where the assessing author
tiles had Jurisdiction to make an assessment
at all, but that person aggreVed should
pursue the statutory remedy. The case now
presented shows that this statutory remedy
power CT the plaintiff. He applied to the
state auditor direct. and to him through the
county commission rs The state auditor de-
termined the matter in appellants favor sub
stantiaiy but not until after the taxes had
been collected. | submit that we ought not
to be prejudiced by the failure OF the state
auditor to determine the in time. We
presented the matter to him more than fifty
days before the sheriff was compelled to re-
turn the warrant. He held the papers during
all of the time. By reason of the delay of
the auditor were compelled at the ex-
piration of that period to pay the warrant
under protest. 1t was not until some five
weeks after that that the Stkse auditor rem
dered his decision The coufg in the former
case said that we should have pursued our
statutory remedy. I submit, that we did it,
but it proved unavailing through no fault of
ours. The county got our money through the
delay Of the state auditor. 1t had no right
to it as this court has recently held in the
case of State VS.. Clarke to which l have
alluded, and as the state auditor then held
it received money which in equity and good
conscience it ought not to be permitted to
retaiQ''