State ex rel. Niewoehner v. Lutey , 126 Mont. 152 ( 1952 )

MR. JUSTICE METCALF:

The relatrix alleges that she filed with the county assessor of Lewis and Clark county a statement under oath setting forth a description and valuation of her property in Lewis and Clark county. The county assessor refused to enter the valuation submitted. The county assessor never summoned the relatrix to appear and testify as to the value of the property as provided by section 84-412, R. C. M. 1947. The relatrix tendered the county treasurer the amount of taxes she believed to be owing computed by applying the current levies to the value given in the property statement. The relatrix by this action seeks a peremptory writ of mandate ordering the county assessor to enter the valuation of the property as submitted by relatrix in the official assessment books and to require that the county treasurer accept the amount tendered in full payment of taxes due for the year 1949.

A motion to quash the alternative writ was interposed and granted and judgment entered. This appeal is from the judgment.

The relatrix’ petition does not allege that the county assessor of his own volition increased the valuation of the petitioner’s property. However, information elicited from counsel in oral argument indicates that is what happened.

Section 84-4503, R. C. M. 1947, affords the taxpayer the remedy when the assessor makes an arbitrary and unfair increase in valuation.

“Whenever any person has delivered to the assessor a sworn statement of his property subject to taxation as now provided by law, and giving the estimated value of such property, and the assessor shall increase such estimated value, or add other property to such assessment list, he shall, at least ten days prior to the meeting of the county board of equalization, give to such person written notice of such change * * *. Such person may then appear before the county board of equalization and contest the same; and if the assessment of any such person has been added to or changed, either by the assessor or by the county board of equalization, and such person has not been notified thereof and given an opportunity to contest the same before the county board of equalization, the tax on such increased value or added property shall, upon such facts being established, be adjudged by the court to be void, and such facts and all questions relating thereto, when said tax has been paid under protest, may be heard and determined in the action provided for in section 84-4502.”

The statute spells out the form of action to determine whether the tax is void and gives the remedy for recovery of taxes illegally assessed. The statutory remedy is exclusive in the absence of a showing that the remedy provided is inadequate. R. C. M. 1947, sec. 84-4504; State ex rel. Goza v. District Court, 125 Mont. 296, 234 Pac. (2d) 463. No such showing has been made by relatrix’ pleadings. Therefore the extraordinary remedy of mandamus is not available here where the statute explicitly sets forth a plain, speedy and adequate remedy in the ordinary course of the law. State ex rel. Goza v. District Court, supra.

The judgment is affirmed.

MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES BOTTOMLY and FREEBOURN, concur.