Swan v. Dickinson

Corn, Chiee Justice. Plaintiffs in error brought this suit to enjoin the collector of Fremont County from collecting certain taxes for the years 1888 and 1889. They were the owners of a large number of range cattle. Their principal, or home, ranch was in Uinta County, about nine miles west of the Fremont County line, where E. D. Swan, the senior member of the firm, resided. In 1888 they returned for taxation in Uinta County eighteen hundred head of cattle and in 1889 twenty-two hundred head. They returned none in either year in Fremont, but they were assessed in that county upon two thousand one hundred and twenty-eight head in 1888 and two thousand and sixty head in 1889, two thousand of those, in each year, beingf strictly range cattle, the remainder being higher class stock, which were not upon the range except during parts of the year, and which are not involved in the consideration of the case. They allege that their home range was entirely in Uinta, and no part of it in Fremont; that they paid taxes in Uinta upon all their cattle, and that they were not taxable upon any in Fremont. The question involved is very largely one of fact. Section 1801, Revised Statutes, provides that all live stock upon the open range shall, for the purpose of taxation, have their situs and be taxed in the county wherein is located the home range of such live stock. And Section 1802 provides that whenever the home range shall be located in two or more counties the number to be assessed in each county shall be determined according to the general disposition made of such live stock when upon their home range. Under these provisions, if plaintiffs’ home range was entirely in Uinta, they were not taxable upon any range cattle in Fremont. But the District Court found that the home range was in both Uinta and Fremont, that plaintiffs’ cattle ranged in both counties, and that they owned, in 1888, not less than 3,800 head and, in 1889, not 'less than 4,200 head. There was quite a mass of testimony taken in the case, and [197] while there is some apparent conflict as to the location of the home range, we think such conflict is, for the most part,, more apparent than real. There can be no doubt, from the-evidence, that the home ranch and range headquarters, for the entire herd, were in Uinta County. But it also clearly appears, from the evidence, that a large number of the cattle-ranged in Fremont. And we think the evidence tends to-show that such as ranged in Fremont had not simply drifted over off their home range in Uinta, but that they ranged there habitually and during the greater part of the year. It appears that the summer range for the entire herd, or at least the major portion of it, was toward the mountains, which, were in Uinta, and at the spring round-ups they were-turned in that direction. But they came down, or were driven down, in the fall and were distributed, or distributed themselves, on both sides of the county line. The plaintiffs-had corrals and branded in both counties. It is not easy to determine what effort, if any, was made to drive the-cattle, found in Fremont; into Uinta, as the evidence upon-the subject is very conflicting. But as a large number of the cattle unquestionably ranged in Fremont and the operations of the company were carried on in both counties, it is-questionable if,' upon the evidence upon this subject alone,, the court would have been justified in finding that the home-range was entirely in Uinta and the cattle ranging in Fremont not taxable in the latter county. But there was also evidence tending to show that the plaintiffs actually owned from thirty-five hundred to four-thousand head in the two counties, and E. D. Swan, the-manager and senior member of the firm, conceded upon the witness stand that they owned some three thousand head in-each of the years in question. They returned for taxation in 1888 only eighteen hundred head and, in 1889, only twenty-two hundred head, all in Uinta County, leaving unaccounted for twelve hundred, head, in 1888, and eight hundred head in 1889, according to their own estimate. It is,, therefore, we think, a legitimate conclusion and one which [198] the plaintiffs are not in position to question that these were cattle ranging- in Fremont and which, in the judgment of the plaintiffs, were not taxable in Uinta. This is not a proceeding to correct an over assessment, or to equalize the assessment between the two counties. But it is an appeal to the equitable jurisdiction of the court to enjoin the officers of Fremont County from collecting an illegal tax upon property which the plaintiffs allege and undertake to prove has its legal situs for taxation in another county and has- actually been taxed in .such other county'. We think plaintiffs’ own evidence fails to show this, but ujpon the contrary, strongly tends to show that they regarded it as taxable, not in Uinta, but in Fremont, or else that they conceived that that part of their property should escape taxation altogether. In either case, we are at a loss to see how the plaintiffs could have any standing in court in this action. It is quite true that Fremont County could gain no rights with reference to the taxation of the property by the mere fact that Uinta had failed to assess this or any other property of plaintiffs subject to taxation in the latter county. But this is not such a case. A large portion of plaintiffs’ cattle were actually roaming in Fremont. They were subject to taxation there unless they had merely, drifted off their home range in the other county. If they were on their home range in Fremont, as we think the evidence tends to show, they were taxable there under the statute and not in Uinta. It was the right of the plaintiffs to be protected from any over assessment either in Uinta or Fremont, and the statute provides the method of obtaining relief. But this is not the plaintiffs’ claim or the case presented by the allegations of their petition. They have elected to proceed under the statute providing for an injunction in cases where live stock is assessed for taxation in a county other than that whére its home range is situated, and claiming, not an over assessment, but that the entire assessment is in violation of the statute. This claim is not supported by the evidence. It [199] was the duty of plaintiffs to list all their property for taxation, and if a controversy arose .as to its situs the statute pointed out a method of adjustment. It is not important, in this case, whose duty it was to- institute the proceedings and put the machinery of the statute in motion, for no controversy between the two counties arose, but each seems to have assessed the cattle which it deemed subject to taxation under its authority. And there was evidence tending to prove and the court found that the entire assessment of the two counties did not exceed the number owned by plaintiffs, and that there was, therefore, no double assess-, ment; and, by the plaintiffs’ own evidence, there were twelve hundred head in one year and eight hundred in the other as to which there was no double' assessment and which would have entirely escaped taxation but for the assessment of Fremont County. Leaving out of view, therefore, the question whether there was any over assessment in either county — a matter which was not put in issue by the pleadings and to which the evidence was not directed- — we are of the'opinion that the.injunction was properly dissolved. In Sandard Cattle Co. v. Baird, 8 Wyo., 144, we found that it was admitted that the home range was in the other county and the decision in that case has, for that reason, only a very limited application to the facts of the case under consideration. Judgment affirmed. Knight, J., concurs. Potter, J., having been of counsel .in the case, did not sit.