The Kalispell bee. [volume] (Kalispell, Mont.) 1900-192?, 1902-07-22

while making the assessment,
Several weeks ago the court heard
the arguments in the case. which
were upon the demurrer of the asses
sor to the complaint OF the company
Toole & Bach appearing for the com.
pany and the attorney general for the
assessor.
Judge Smith overruled the demur
rer The assessor can answer and
further fight the proceedings, other
wise the injunction viii become per-
manent.
In any event the case will be ap-
pealed, as the result of the litigation
is of interest to every county in the
state. In his decision, Judge Smith
says
The assessor bases his right to
collect taxes on personal property on
Chapter 8, part Ill, title X, of the
political code, which provides that
the assessor must collect the taxes
on all personal property when in his
opinion, said taxes are not a lien
upon real property sufficient to Sc
may collect said taxes by seizure and
sale of any personal property owned
by the person against whom the eax
is assessed. The plaintiff claims
that this provision of the political
code is unconstitutional, as being in
conflict with article XVI, section ",
of the state constitution, which pro
vides that there shall be elected in
each county one treas
urer, who shall be collector of taxes.
"The defendant has filed a gen
eral demurrer to the complaint which
confesses as true all the allegations
of the the complaint that are
well pleaded, and no point. is raised
as to the sufficiency of the complaint
in form.
THE first question to be determ-
ined is whether injunction is the
proper remedy. | am of opinion that
it is. The cases and code provisions
cited by the learned attorney general
to the effect that the court will not
restrain the collection of any tax ex-
cept where the tax, or the part there
of sought to be enjoined, is illegal, or
is not authorized by law, or where
the property is exempt from taxa
tion do not~ apply here, because the
contention is that the assessor is not
authorized to collect at all If this
action were directed against the
county treasurer, the point would be
well taken. 1t is no answer to
plaintiffs contention to say that it
may pay to the treasurer under pro
test and then sue to recover the
money. So far as the assessor is
concerned, he either has a right to
collect these taxes (no other point
being before this court at this time)
or he has no right to collect any
taxes and if he has no right under
any such circumstances, he may be.
| enjoined.
Coming now to the constitutional
ity of the law under which the as
| SCISSOR is acting, | am of opinion the
provisions thereof are clearly in con
fiict with the constitution. Indeed,
the attorney general in his able
brief, almost confesses this, but
seeks to have the law upheld because
of the eXpediency of allowing the as
SCISSOR to collect taxes on personal
property owned by persons having no
| real estate. 1t may be and doubtless
| is true that the assessor is, under
the present law, in a better position
to secure these taxes to the county
than the treasurer, but I see no rea-
son why the the law cannot be so
amended as to place the treasurer
and his deputies in position to render
just as efficient service in this regard
as the assessor is now furnishing.
'The case of the City of Placerville
VS.. Wilcox, 35 Cal, 81, is in point
In that case the city charter pro-
vided that the marshal should be col
lector of taxes and an ordinance di-
recting the city attorney to collect
them was held void.
But, aside from this California
case, l believe that on principle the
plaintiff is correct in it's contentious
The provisions of the constitution be-
ing mandatory and prohibitory' I'M
less declared to be otherwise, and
section 5, article XVI, providing that
the treasurer shall be the collector
of taxes / am of the opinion that
chapter 9 of the political code is un-
constitutional.
"The demurrer is therefore over
ruled and the defendant has five days
to answer the complaint herein, if
he so desires; otherwise the restrain
ing order heretofore issued herein
will be made permanent"