Moody County v. Cable , 82 S.D. 537 ( 1967 )

ROBERTS, Judge

(dissenting).

The defendant moved cattle from Buffalo County to Moody County for the purpose of fattening them for market. The present action was brought in the Circuit Court of Moody County for the recovery of taxes assessed upon the cattle. The trial court found that such property was assessable in Buffalo County and that plaintiff was not entitled to judgment.

The methods prescribed for the recovery of delinquent taxes are wholly statutory. SDC 1960 Supp. 57.1026 provides that it shall be sufficient for the county treasurer authorized to enforce collection of personal property taxes by civil action to allege that "the taxes stand charged against the defendant, that the same are delinquent and unpaid, stating the year or years and the amount for each year, and such treasurer shall not be required to set forth in his complaint or by a bill of particulars any other or further matter relating thereto and the duplicate tax list or lists shall be prima facie evidence of the amount and validity of such taxes appearing due and unpaid thereon, * * Where there is allegation and proof in compliance with these statutory provisions, the burden is upon the defendant taxpayer to prove facts set up by way of defense showing that the taxes are invalid. The statute provides that the county treasurer may commence such action in his name as treasurer. The county unquestionably has a remedial interest in a cause of action to enforce the collection of personal property taxes and no question is raised as to whether the county is a proper party plaintiff.

There is no dispute as to the material facts. It appears from the pleadings, stipulation of the parties and the findings of the trial court that the defendant resides in Buffalo County where he operates a ranch. In the years 1960 and 1961, defendant brought cattle into Moody County and delivered them into the possession and control of owners of feed lots for the purpose of feeding them for the market under arrangements with defendant owner. The cattle so brought into Moody County and there on the first day of May in each of these years were assessed to defendant owner.

SDC 57.0323 states the general rule that personal property except as is otherwise provided shall be assessed where the owner resides.

SDC 57.0324 provides: "Where the owner of livestock or other personal property connected with a farm does not reside thereon, the same shall be assessed in the township or district where the farm is situated" (Emphasis added). This section makes a specific exception to the general rule.

SDC 57.0325 and Chapter 432, Laws 1959, fix the place of taxation of cattle and other domestic animals temporarily ranging or grazing on extensive tracts subject to the limitations contained therein. While these provisions do not apply to the facts in the present action, yet they show an intention on the part of the legislature to give the residents of a taxing district into which cattle are brought for the profit of a nonresident owner the right to assess and collect taxes thereon and thus to impose a share of the cost of protection upon such property.

SDC 1960 Supp. 57.0328 seeks to state a rule to prevent the taxation of personal property at two different places where such property has been removed from one taxing district to another. It provides that "where a person whose duty it is to list personal property for assessment can show by duly authenticated certificate of assessment that the property or any part thereof has been lawfully listed and assessed in any other taxing district of this state * * * for the current year, so that he is held for taxation of such property or any part thereof, in such other taxing district * * * then the property that is assessed for tax in such other district * * * shall not be further assessed * * * SDC 57.0329 provides that where the proper place to assess personal property as between counties is questioned, the place for assessing shall be determined by the Commissioner of Revenue.

The trial court concluded that the cattle brought by defendant into Moody County were "not connected with a farm, but rather were temporarly contained in feed lots which lots were not owned or leased by defendant". The court seemingly construed the words "connected with a farm" in Section 57.0324, quoted above, to refer to a "farm" under the control or supervision of a nonresident taxpayer. This construction does not necessarily follow from the words of the statute and is in my opinion contrary to the intention of the legislature when such language is construed in connection and in harmony with other related statutes.

Defendant did not pay the taxes under protest and there are no findings that he sought an administrative determination of the proper place of assessment or that he was assessed in Buffalo County for all the property which is involved in the present action.

In Morse v. Stanley County, 26 S.D. 313, 128 N.W. 153, an action to restrain defendant county from enforcing the collection of taxes which were assessed and levied upon livestock ranging in that county, plaintiff, a resident and owner of a ranch in Pennington County, contended that horses, ranging in Stanley County were assessable in the county where he resided and maintained his headquarters ranch. This court construing Section 2059, 1903 Political Code, which included the present pro•visions of Section 57.0323, supra, said: "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 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 such 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."

The court in Delatour v. Smith, 116 Neb. 695, 218 N.W. 731, considered the question of the tax situs of cattle moved during the month of December from the owner's headquarters ranch into an adjoining county and were there assessed on April 1 following. The owner contended that the cattle were connected with the farm in the county of his residence. The governing statute provided that the livestock in charge of a caretaker and "not connected with a farm" on the assessment date were assessable where kept. In denying injunctive relief the court said: " 'Where the owner of cattle resides in one county and his cattle are kept on a farm in another county, which farm is entirely disconnected from the home of the owner, such cattle are properly taxed in the county where kept.' * * * The trend of authorities in cattle feeding states indicates that bands of sheep or herds of cattle being prepared for market are a distinct entity from operations on the home ranch and may be taxed for the benefit of the county they are being fed in on the taxing date. * * * 'In fact, an inspection of the whole law shows the clear intention on the part of the Legislature to give the people of the taxing subdivision in which personal property is situated and used for the profit of the owner the right and privilege of collecting taxes upon it, so that it may bear its proper share of the expenses of government at that place.'"

The personal property here involved was permanently removed from Buffalo County and was not thereafter connected with a farm or ranch in that county. The feeding of cattle preparatory to marketing on each of the farms in Moody County was separate and distinct from the operations on defendant's ranch. The cattle in each instance were connected with a farm in Moody County and were in my opinion assessable the same as similar property owned by residents. This construction is in harmony with the legislative policy of giving to residents in taxing districts into which livestock is brought for the benefit of the owner the right to collect taxes thereon. The stipulation of the parties and the findings of fact of the trial court do not in my opinion sustain the conclusions of law and judgment. I would reverse.