Opinion
No. 6,680.
Submitted November 13, 1930.
Decided December 30, 1930. Rehearing denied January 20, 1931.
Taxation — Recovery of Taxes Illegally Collected — Payment Under Protest Condition Precedent to Right of Recovery — Statutes. 1. Under the authority of First National Bank of Plains v. Sanders County, 85 Mont. 450, held, that where one seeks to recover taxes on the ground that they were illegally collected, he must proceed under section 2269, Revised Codes 1921, rquiring payment under protest as a condition precedent to right of recovery, the remedy therein provided being exclusive, section 2222, providing for refunding of such taxes, in so far as in conflict with section 2269, being deemed repealed.
Appeal from District Court, Beaverhead County; Henry G. Rodgers, Judge.
Mr. Frank Woody and Mr. C.A. Spaulding, for Appellant, submitted a brief; Mr. Woody argued the cause orally.
Mr. L.A. Foot, Attorney General, and Mr. L.V. Ketter, Assistant Attorney General, for Respondent, submitted a brief; Mr. Ketter argued the cause orally.
Three states, California, Utah and South Dakota, not only have statutes similar to our section 2222, Revised Codes 1921, providing for the refunding of taxes illegally or erroneously collected, but also have statutes providing for payment of taxes under protest, similar to our section 2269, and in the order of enactment of these statutes in each of these states, as with us, the statute for refunding taxes illegally or erroneously collected was first enacted and then followed by the enactment of the statute providing for payment of taxes under protest, so that the order of enactment in all four states is identical, and if there is a conflict between the provisions of our two sections so that the last enacted, by implication repealed all or part of the first enacted, then likewise in each of these other states there must have been a like conflict and the last enacted, by implication, must have repealed the first, yet the courts in those states have held otherwise. (See Stewart Law C. Agency v. Alameda County, 142 Cal. 660, 76 P. 481; Neilson v. San Pete County, 40 Utah, 560, 123 P. 334; Casey v. Butte County, 52 S.D. 334, 217 N.W. 508.
The above sections provide separate and distinct remedies. (See Neilson and Stewart Cases, supra; Brenner v. City of Los Angeles, 160 Cal. 72, 116 P. 397; Casey v. Butte County, supra; Birch v. Orange County, 186 Cal. 736, 200 P. 647.)
Without protest, plaintiff paid the taxes assessed and levied against its bank shares for the years 1925, 1926 and 1927. Thereafter like taxes were declared to have been illegally levied and collected ( Montana Nat. Bank v. Yellowstone County, 276 U.S. 499, 72 L.Ed. 873, 48 Sup. Ct. Rep. 331; Commercial Nat. Bank v. Custer County, 275 U.S. 502, 72 L.Ed. 395, 48 Sup. Ct. Rep. 155; s.c., 81 Mont. 505, 264 P. 121), whereupon plaintiff demanded of the defendant county refund under the provisions of section 2222, Revised Codes 1921, and, on denial thereof, filed complaint herein seeking recovery of the amounts so paid. The court sustained a demurrer to the complaint, and, on plaintiff's refusal to further plead, judgment was duly entered in favor of defendant. Plaintiff has appealed from the judgment.
On a similar record this court held section 2222 above, [1] inapplicable, as the legal remedy provided in section 2269, Revised Codes 1921, with the equitable one recognized in section 2268, Id., are exclusive, while section 2222, in so far as in conflict with section 2269, must be considered repealed. ( First Nat. Bank of Plains v. Sanders County, 85 Mont. 450, 279 P. 247.)
Conceding that this decision forecloses recovery, counsel for the plaintiff contends that it should be overruled on the authority of decisions from sister states. We have given careful consideration to the cited cases and reconsideration to the questions presented in the Sanders County Case, and, in view of the history of our enactments as reviewed in that decision, and the evils sought to be corrected by the enactment of section 2269 and kindred sections, we are satisfied that the Sanders County opinion correctly states the law of this state on the subject.
We cannot concede that our legislature, while providing a new method of procedure requiring definite and speedy action by one feeling himself aggrieved, intended to leave the law in such a state that such a one could defeat the very purpose of the Act by merely failing to comply with its provisions.
On the authority of First Nat. Bank v. Sanders County, above, the judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and ANGSTMAN concur.