Morse v. Stanley County

WHITING, P. J. This is an action brought to restrain the defendant county and its treasurer from enforcing the collection of certain taxes, which had been assessed and levied against the plaintiff for the year 1904 upon horses and cattle, claimed by the defendants to be taxable in said Stanley county; the plaintiff claiming, as to the cattle, that the same did not belong to him, and that, as to the horses, that they were properly taxable in Pennington county and not in Stanley county. The defendants, answering, pleaded that the ownership of this stock and possession were in the plaintiff, and 'that said stock were kept, fed, and ranged in Stanley county, where they had been assessed and taxes levied. Defehdants further alleged that, for years prior to 1904, the plaintiff had been the owner of many head of .horses and cattle properly taxable in Stanley county and which had 'not been assessed for taxes. Defendants,' in their answer, not only prayed that plaintiff’s complaint be dismissed, but that the true taxes for years prior to 1904 be ascertained and judgment rendered, therefor. Judgment entered in favor of defendants. A motion for new trial having been denied, plaintiff has appealed to this court from said judgment and order denying a new trial. The cause was tried to the court without a jury, and the court made and entered findings of fact and conclusions of law therein. The conclusions and judgment provided, among other things, that the proper taxing officers be required to place upon — 316 — the tax list of Stanley county for the-years 1898 to-1903, inclusive, horses and cattle to the. value of $20,000 as taxable property of plaintiff in said Stanley county, and to extend and collect a levy of taxes for each of said years against the plaintiff upon such valuation. The court’s findings of fact were, in brief, as follows: That the defendant Stanley county was at all times hereinafter mentioned an organized county of this state, and defendant Poste is and has been -since January, 1905, its treasurer. That plaintiff is and was a resident of Pennington county, and at all times hereinafter mentioned engaged in the business of raising, buying, and selling horses, cattle, and live stock. That in 1897 plaintiff purchased a large bunch of over 1,400 horses, which had been raised and were located in Stanley county, at or near what was known as the “15 ranch,” and said horse-s were then and theretofore branded and known as the “15” horses. That after the purchase plaintiff kept, pastured, and reared the said horses and their increase at or near said “15 ranch” in said Stanley county; plaintiff having purchased said ranch and its improvements. That such improvements consisted of a substantial house, bams, sheds, and a corral for accommodation of horses and cattle. That connected with such ranch buildings were pens used by the former owners for penning the horses, which pens were located 7 miles from said ranch buildings in Stanley county; all of such buildings and pens being some 15 miles from Pennington county line. That since the purchase of such ranch and buildings plaintiff has continued to keep the stock upon such ranch, has put up hay at said ranch, and has used the corrals and pens for branding and otherwise caring for such horses. That in looking after and caring for the horses plaintiff has, during each year, rounded them up and driven them to these “15 pens” for the purposes of branding and doing any other work in regard to such horses, even driving horses that might have strayed into Pennington county back into' the “15 pens” for the purpose of branding or otherwise caring for them. That these horses, while owned by the former owner, had been taxed in Stanley county, -and their situs has never since been — 317 — changed. That a foreman had been kept at said “15 ranch.” That said horses have always been rounded up at said - ranch when needed for any purpose. That during the year 1904 plaintiff was the owner of, and had at. or near said “15 ranch” in Stanley county, 300 head of “15” horses under three, years old and over six months, and 300 Ijead of “15” horses three years old, and that said horses were, not assessed in any other cqunty for said year 1904. That during 1904 the assessor of Stanley county, at the proper time, duly and legally assessed 500 head of these horses as the property of plaintiff, and duly returned such assessment and the various taxes were properly levied upon such assessment. That such assessor of Stanley county assessed, as the property of plaintiff for said year, a large number of cattle, but that plaintiff did not own and keep in Stanley county . during such year the cattle so assessed. And that tthe assessment of the plaintiff to the extent of the amount assessed on-these cattle was excessive. Then followed a 'finding in relation to the horses that should have been assessed against plaintiff in Stanley cp-unty for the }'-ears 1898 to 1903, inclusive, together ydth their assessed value. .Evidence ■ was offered and received showing that plaintiff had a large cattle and horse ranch, in Pennington .county; that he himself lived at Rapid City in said county; that he had a superintendent over his. stock business (including the stock in Stanley county) ; that this superintendent lived on the ranch in Pennington county; that both horses and cattle were assessed as his property., in Pennington . county, in year 1904. No findings were made covering above points. The evidence, showed clearly that any assessment made in 1904. in Pennington county did not cover the horses assessed in Stanley- county. In so far as the taxes for the years prior to 1904-were concerned, the defense could not convert this cause into- a.mandamus proceeding by setting forth -the fact that the -taxes, were due for such -previous 'years. It will be presumed that, upon their attention being called 'to the facts, the proper officers of Stanley county will- take such-steps as will.be proper to.'collect any- taxes that should be paid by-the-'plaintiff for-the years prior to 1-904.- I-f — 318 — such officers should refuse to do their duty therein, it will then be time for the matter to be brought to the attention of the courts. As regards the taxes for the year 1904, we are of the opinion that the judgment of the lower court should be affirmed for three separate and distinct reasons. The condition of the abstract herein is such as to warrant us in disregarding same. Over 200 pages of testimony are found in the abstract, nearly or quite one-half of which relate solely to the matter of cattle, all issues relating to which were eliminated from this case when respondent failed to appeal herein. With a few exceptions, the evidence is reproduced in such abstract in the form of question and answer without condensation in any manner. A large part Of the testimony, other than that relating to the cattle, could have been eliminated from the record; the same being clearly immaterial on this appeal. Such part of the testimony as really bears upon any matter material to this appeal could have been so condensed that a record properly prepared would not have covered, so far as the testimony was concerned, to exceed 30 or 40 pages. This court should not be required to wade through such records, and we believe it is our privilege, if not our bounden duty, when such a record is presented, to ignore the same and treat the appeal as though no abstract was on file. The evidence herein clearly sustains the material findings of fact and such findings of fact are ample to bring these horses, for assessment purposes, under the provisions of the second .paragraph of section 2059 of the Political Code, taxable in Stanley county. It appears clear to us that the “15 ranch” was a separate and distinct ranch from those in Pennington countjc If, under the facts as found here, these horses are not taxable in Stanley county, then if a person lives in one county, or his foreman or superintendent lives therein, and from such point manages and conducts ranches throughout the whole state — no matter if some of such ranches cover large parts of other counties — still all of his property, no matter how great its value, would be taxable only in the county where he or the foreman lives, while as a matter of fact such county would have no equitable right to any of such — 319 — tax whatsoever. We are of the opinion that each separate and distinct ranch where live stock are in the habit of congregating or of being cared for is a situs for taxation purposes, separate and distinct from all -others, though the control of su-ch ranch may be under a person resident elsewhere; the real intent of such part of section 2059, -supra, being that the live stock should be taxed at such place as might be held the home of such stock. Certainly there is not a syllable in this case that would place the home of the “15” horses elsewhere than at the “15 ranch” in Stanley county, it appearing clearly that this was their original home, that they had always been kept upon this ranch, that when they had wandered therefrom they had been returned to such ranch, and that the branding of the young had been done on this ranch. We think there is a third reason why this judgment should be affirmed. It appears uncontradicted that the proper -officers of Stanley -county listed and assessed for taxation purposes this lot of horses as -situated in Stanley county. The law presumes the acts of these -officers to be lawful. The plaintiff comes in and asks to enjoin -the collection -of taxes levied upon such assessment. It becomes incumbent upon him both to plead and prove facts showing this assessment of stock to be invalid. To- show such invalidity, it becomes necessary for him to allege and prove: That his property was not located in Stanley county; that the situs for its taxation was elsewhere; and further, even if it were conceded that the proper place of taxation was in Pennington county, such property being found in Stanley county, it was incumbent upon plaintiff to allege and prove that the property, attempted to- be assessed in Stanley county, had actually been assessed in Pennington county, where it was properly subject to- assessment. This latter is necessary for the reason that, under section 2066 of the Revised Political Code, no matter if these horses were properly taxable in Pennington county, yet if they had ■ not been so taxed in Pennington, and were found by the assessor of Stanley county in his count}'- after June 1, 1904, he had a perfect right and full authority to assess them. It was incumbent upon plaintiff to allege and prove facts that would take him from out of the provisions of said section 2066. — 320 — Let us look now at the facts of the case as they practically stand undisputed. Plaintiff offered in evidence the assessor’s returns in Pennington county. These were absolutely immaterial without proof that the property therein described included that attempted to be assessed in Stanley county. There is no presumption that an assessment statement in one county covers any property except property situated in that county. While .such statements might be received as evidence against the plaintiff, they were not evidence in his favor except as to the one fact that he had listed that amount of property. In so far as he swore, in his oath attached to such statement, that the statements covered all property taxable against him, such oath was not competent evidence upon the trial of this cause to prove that the property contained in such statement included property taxable elsewhere ; neither w/as it evidence, in favor of plaintiff, that such statement contained all the property taxable in Pennington, county, it not being receivable for that purpose, on behalf of plaintiff, for the obvious reason that it would be the receipt of a self.-serving declaration. There was therefore nothing in the record to show that plaintiff had been assessed in Pennington county for all the property upon which he was liable to be taxed in such county. A reading of the testimony cannot but convince one that plaintiff studiously avoided giving any testimony divulging the number of horses he possessed in either of these counties; but it does appear that he was engaged in the raising of both horses and cattle, that he had over 200 saddle horses, and employed a large number of men. It clearly appears that he had, running on the range, which Could not be included among the saddle horses, from 500 to 700 head of horses, which horses were accustomed to range in Stanley county. His assessment statement in Pennington -county apparently covered only the saddle horses and work horses shown by the testimony. There is absolutely no evidence that this 500 to 700 head,of horses,’running on the range, were ever taxed at all, except as they were being taxed by Stanley county. This appears to us as a case of attempted tax dodging, in which dodging the plaintiff has failed, and in which case the proof shows that— — 321 — whether we consider these horses as being located so that at all times they were properly taxable in Stanley county, or whether we treat them as stock found in Stanley county, which should have been, and yet were not, assessed in Pennington county — the assessment of same in Stanley county was perfectly legal and should stand. Appellant has assigned as error the failure of the court to make certain findings prayed for. The court found on all matters material to the issues raised. Appellant also has assigned numerous alleged errors in the rulings of the court upon the admission and rejection of evidence. No material evidence was rejected, and there was ample evidence properly' admitted to support the findings of the court. The judgment of the trial court should be modified, eliminating therefrom everything relating to taxes for years prior to 1904, and, as so modified, the judgment as well as order denying new trial should be affirmed, and it is so ordered. Neither party shall recover costs herein.