State Ex Rel. Goza v. District Court of Eleventh Judicial Dist. , 125 Mont. 296 ( 1951 )

MR. JUSTICE FREEBOURN:

Original proceeding for a writ of prohibition.

The Alex Shulman Company, a Washington corporation dissatisfied with the assessed value of its real and personal property at Somers, Montana, made by the Flathead county assessor for 1950 tax purposes, applied to the Flathead county board of equalization for a reduction in such assessment. When such was denied, it appealed to the state board of equalization which, after hearing had and personal examination of the assessed property by the individual board members, reduced such assessed value by $56,000.

From the record it appears the Shulman Company paid the 1950 taxes levied on such property under protest and then brought an action in the Flathead county district court to recover so much of such tax as it claimed was excessive, which action is now pending.

On December 6, 1950, the Shulman Company brought an action for a writ of mandate in the Flathead county district court to compel the state board of equalization to further reduce the assessed value of such property. An amended alternative writ of mandate issued directing the state board to reduce such assessed valuation or show cause why it should not do so.

After answer made, following a denial of its motion to quash and vacate such writ, the state board brought this action to prohibit the Flathead county district court and the Hon. Dean King, judge thereof, from proceeding further with such mandamus action, except to quash such writ and dismiss the action.

A writ of mandate is available here only if the Shulman Company is entitled to have the state board of equalization perform a clear, legal duty and then only when and if there is no speedy or adequate remedy in the ordinary course of law. State ex rel. Kennedy v. District Court, 121 Mont. 320, 194 Pac. (2d) 256, 2 A. L. R. (2d) 1050; Raleigh v. First Judicial District Court, 24 Mont. 306, 61 Pac. 991, 81 Am. St. Rep. 431; State ex rel. Peel v. District Court, 59 Mont. 505, 197 Pac. 741; State ex rel. Stephens v. Zuck, 67 Mont. 324, 215 Pae. 806; State ex rel. Duggan v. District Court, 65 Mont. 197, 210 Pac. 1062; State ex rel. Grantier v. Woods, 67 Mont. 337, 215 Pac. 671; and Wilson v. Harris, 21 Mont. 374, 54 Pac. 46.

The state board of equalization in a hearing on appeal from the county board acts in a quasi-judicial capacity, and the presumption obtains that its findings were justified by the evidence taken at the hearing. State ex rel. Schoonover v. Stewart, 89 Mont. 257, 297 Pac. 476; and International Business Machine Corp. v. Lewis and Clark County, 111 Mont. 384, 112 Pac. (2d) 477.

In such a proceeding a court will not substitute its judgment for that of the taxing officials and an over-valuation, honestly made, will not be disturbed. International Business Machine Corp. v. Lewis and Clark County, supra; Johnson v. Johnson, 92 Mont. 512, 15 Pac. (2d) 842. And this is true whether the action be one of straight law or for a writ. Otherwise the court would be converted into an assessing board and would be usurping powers lodged in the executive branch of the state government .by the legislative department. State v. State Board of Equalization, 56 Mont. 413, 185 Pac. 708, 186 Pac. 697; International Business Machine Corp. v. Lewis and Clark County, supra; Langen v. Badlands Coop. State Grazing District, 125 Mont. 302, 234 Pac. (2d) 467.

It is only when the action of the board is arbitrary, fraudulent, or that a wrong method of assessment was employed, or that an over-valuation placed upon the property was so gross in error as to be inconsistent with any exercise of honest judgment, that the courts will interfere. Johnson v. Johnson, supra; International Business Machine Corp. v. Lewis and Clark County, supra; Langen v. Badlands, etc., Dist., supra.

If the Shulman Company can show an unlawful assessment, it has a cause of action under R. C. M. 1947, sec. 84-4502, which in part provides that an action may be brought “In all eases of levy of taxes * * which are deemed unlawful by the party whose property is thus taxed * * See Investors Security Co. v. Moore, 113 Mont. 400, 127 Pac. (2d) 225.

An action brought under R. C. M. 1947, sec. 84-4502, was intended to permit recovery of any tax or part thereof which could not be lawfully exacted, and, in effect, is a proceeding to review the decisions of the county and state boards of equalization. Johnson v. Johnson, supra. The legal remedy provided for by R. C. M. 1947, sec. 84-4502, and sec. 84-4505, relating to injunction, is exclusive in respect to an unlawful, or a void, levy of taxes. First Nat. Bank v. Sanders County, 85 Mont. 450, 279 Pac. 247; First Nat. Bank v. Beaverhead County, 88 Mont. 577, 294 Pac. 956; Williams v. Harvey, 91 Mont. 168, 6 Pac. (2d) 418.

Since there is a speedy and adequate remedy in the ordinary course of the law under R. C. M. 1947, sec. 84-4502, available to the Shulman Company, the amended alternative writ of mandate should not have issued and the board’s motion to quash should have been granted.

Under the authorities above cited the case of Corcoran v. State Board of Equalization, 116 Mont. 499, 154 Pac. (2d) 795, a mandamus action, is overruled.

For the reasons stated a writ will issue forthwith prohibiting the district court from proceeding further in the mandamus action. It is so ordered.

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