State v. Owsley , 17 Mont. 94 ( 1895 )

Hunt, J.

The state has brought this action under section 171 of the revenue act of the second session, 1891 (Laws Mont. 1891, page 123), which provides concerning poll taxes that: The assessor may require the person or his agent or any other officer, agent or manager of any association or corporation to make a verified statement showing the number and giving the names of the employes of such person, association or corporation, and if such |tatement is not furnished the assessor, the assessor must make an estimate of the persons so employed and assess them, and such assessment is as valid as if made on a verified statement. The person, association or corporation refusing to make such verified statement forfeits the sum of five hundred dollars, which may be recovered in an action brought in the name of the state. ’ ’

The appellants argue that no cause of action is stated, because the assessor should have presented himself to the defendants, and then and there offered to swear one of them to such facts as he wished to elicit. ’ ’

The statute is a plain answer to this contention. By it the assessor’s duty in the premises towards the defendants was performed when he gave the notice and made the demand, and upon the receipt thereof the defendants’ duty was to furnish the verified statement. The demand was a plain and unambiguous compliance with the statute. It was signed by the assessor in his official capacity. It pertained to public taxes, and expressly notified defendants that the list was for the use of the assessor in assessing and collecting poll taxes from the persons under defendants’ employ. It was formal, and sufficient to secure at least the respectful consideration of being read — and not ignored — by the person upon whom it was served. A prudent attention to papers signed by revenue officials clothed with the power of listing persons and property subject to taxation often saves vexatious litigation and heavy costs.

But, if the notice is held good, it is still urged that, this being an action to recover a statutory penalty, the complaint is fatally defective, because it nowhere refers to the statute violated by title, page, or section, nor does it conclude,‘‘against the form of the statute, ’ ’ nor does it allege that defendants have violated any statute.

Under old systems of pleading, and authorities which are principally to be found in states or courts where reformed code pleading does not prevail, or did not when the decisions were made, an action to recover a penalty or forfeiture should conclude, ‘ contra formam sfaiutif ’ and should, perhaps, specify the statute affording the right and the remedy. (Reed v. Northfield, 23 Am. Dec. 662.) But “these technical and nice distinctions are, however, now rapidly ceasing to be of interest except as matter of legal history. The great changes recently effected in this country and in England have laid the ax to the root of the old fabric of the common law, as far as its procedure is concerned; and wherever the modern and simple mode of pleading has been adopted, actions on statutes are to be brought, no doubt, as in other instances, by a concise statement of the facts on which the alleged claim is sought to be maintained.” (Sedgwick on St. & Const. Law, p. 90.)

In this state there is but one form of civil action, and the Code simply declares that the complaint shall contain, among other things, ‘‘a statement of the facts constituting the cause of action, in ordinary and concise language.” The complaint in this action does set forth (1) the facts which enter into the first branch of the cause of the action, and are the occasion of the primary right and duty relied upon, and (2) the facts which constitute the defendants’ omission. It therefore is not necessary, in addition to such facts, to plead a statement of the legal rule to which the facts apply. (Pomeroy on Rem. § 524; Baylies, Code Pl. § 6.) The statute under which this action is brought being a public one, the court will take judicial notice of it. (Comp. Laws 1887, div. 1, § 643.) Therefore, under the universal rule, matters of which judicial notice is taken, need not be stated. (Bliss, Code Pl. § 181; Baylies, Code Pl. § 10.) .

Under the Code there is no more necessity for referring to a public statute in suits to recover penalties than in other actions. “All mere forms are abolished, and this was but a form.” (Bliss, Code Pl. § 181; Brown v. Harmon, 21 Barb. 508; Hewitt v. Harvey, 46 Mo. 368.)

In the case of People v. McCann, 67 N. Y. 506, an action was brought in the name of the people by the district attorney of the county, to recover penalties claimed to have been incurred by the defendant in acting as the agent of a foreign insurance company in the issuing and delivery of insurance policies, in violation of the insurance acts and statutes of this state.” No statute in particular was referred to. Objection was made at the trial on the ground that the act violated was not pleaded, but the court held that the case of Nellis v Railroad, Co., 30 N. Y. 505, “fully answered that objection.” Reference to this last citation shows tha,t it was an action by an individual against a railroad company for asking and receiving a greater rate of fare than that allowed by law. The statute provided that in such a case the company shall forfeit $50, which sum could be recovered by the party paying the same, etc. Considering the point raised by the appellant herein, the court said : “The defendants counsel insists that the complaint should have set out the various enactments consolidating the several companies which make up the New York Central, so as to show that defendant is restricted to two cents per mile for carrying passengers over its road. I can perceive no more reason for setting out these statutes than there is for setting out the proceedings by which the several companies consolidated into the Central were incorporated and organized. It is enough to allege that the defendant has been duly organized, and that it is entitled to demand and receive of passengers traveling over its road a certain rate of fare,- and that it has demanded and received a higher rate. The acts of the legislature, and the proceedings of the separate companies, and of the defendant after consolidation, would be evidence to establish the facts upon which the limitation of the fare which the defendant may charge depends. The court, by taking judicial notice of these acts and proceedings, coul d not relieve the defendant from the effect of its admission, deliberately made, that the fare was but two cents per mile, though by the act it might be six cents.”

The New York court of appeals, by these decisions, recognize no distinction between the form of actions brought by the state and those by an individual to enforce statutes of penalties or forfeitures; and, on principle, we can see none.

The following authorities sustain the form of plaintiff’s complaint : Boone on Code Pl., § 181; McHarg v. Eastman, 35 How. Prac. 205; Morehouse v. Crilley, 8 How. Prac. 431; Abbott v. Railroad Co., 12 Abb. Prac. (N. S.) 465; Sedgwick on St. & Const. Law, p. 90; Voorhees’ Ann. Code N. Y. 1870, p. 192, subd. d.

The sequel of our views is that it was unnecessary to recite or specifically refer to the public statute under which this action was brought, or to formally conclude the complaint with the words, “against the form of the statute” in such case made and provided.

The district court allowed interest on the amount of the penalty from the date of filing the complaint. There was no special averment of any vexatious or unreasonable delay on defendants’ part, and, being satisfied that the defense was interposed in good faith, we think that the judgment should be modified by remitting all interest except upon the sum of $500, from the date of the rendition of the judgment, to wit, November 21, 1893. As so modified, it will be affirmed.

Modified and affirmed.

Pemberton, C. J., and De Witt, J., concur.