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except Colorado, where a certificate of assessment will be furnished upon request by the owner of the county official.
On the question of tax rate there is some degree of uniformity, i. e. the last rate, or the rate effective during the last preceding tax year prevails. This rate, in most of the public land states, is the rate of the home county. However, in Utah, Nevada, Wyoming and Colorado the rate of the county in which first assessed, applies.
COLLECTION AND PENALTY
On the question of collections, penalties and forfeiture there are almost as many different conditions as there are public land states. In Utah, for instance, failure to list with county official or refusal to pay taxes or give bond, subjects the owner of live stock to a fine of from $10 to $300, and if the owner attempts to move live stock from the county, before the settlement of civil action to collect taxes (if civil action has become necessary), subjects him to fine or imprisonment or both. Nevada, Oregon and Washington have no penalty prescribed. In Wyoming failure of county officer to perform dates is a misdemeanor and subjects him to a fine of from $50 to $500, and failure of owner to make listing subjects him to fine or imprisonment or both. Montana subjects the owner to a fine of $100, for not listing live stock with county officials; Colorado provides for both fine and imprisonment for the county official issuing a fraudulent certificate. Idaho makes the owner or agent guilty of a misdemeanor who refuses to make the statement required under its laws, or makes a false statement, or who removes live stock on which tax has not been paid, and upon conviction. subjects him to imprisonment for from thirty days to six months. In Arizona, failure to file statement of listing is a misdemeanor, and in New Mexico a penalty of twenty-five per cent additional assessment is made for failure of the owner to list his transient live stock with the proper officials.
TAXES UPON INTERSTATE MOVEMENT OF LIVE STOCK
In Utah credit is allowed, which is proportionate to the time that the live stock are outside the state, provided, however, that no credit in excess of fifty per cent of the total Utah taxes is allowed. Nevada, on the other hand, makes no reductions for taxes paid in another state, while Wyoming taxes foreign live stock for the full year, unless such foreign state assesses Wyoming live stock on a proportional basis, in which case Wyoming reciprocates. Montana, Idaho and Arizona make no reference to the subject. Colorado subjects the owner to tax for the entire year, if live stock is assessed prior to September first, after which date it exempts from
tax for the calendar year. Oregon and Washington subject foreign live stock to a tax for the entire year, while New Mexico taxes only for that proportion of the year actually spent within the state. The California statutes are apparently silent on the subject of assessment of migratory live stock.
From the following legal decisions that have been handed down in some of the Western states it is evident that even the courts are at variance in their opinions on the principles of taxation of migratory live stock.
The Wyoming court has ruled that in order to render live stock taxable, under an act providing for taxing live stock brought into the state for the purpose of being grazed, an intent that such stock is to remain in the state permanently is unnecessary. Kelley vs. Rhoads, 51 Pac. 593.
Also, that when sheep were driven into the state, and in eight weeks' time traveled a distance of 500 miles to a railroad station, and as they traveled, they grazed over an area of a quarter of a mile wide and were taken through inclosed pastures and on the public domain, without following any public highway, and that nearer stations on the same railroad could have been reached without coming into the state, the claim that the plaintiff brought the sheep into the state for the purpose of grazing was supported by the evidence. And it was held in the same case that they were liable to taxation in Wyoming, although the owner testified that he was transporting them to another state, since they acquired a situs in the state for the purpose of taxation. Kelley vs. Rhoads, 63 Pac. 935; 188 U. S. 1.
This court also held that where sheep had been bought for feeding purposes in adjoining states, for the purpose of transporting them to Nebraska feed yards, and had been driven into Wyoming on August first, and it took three months to drive across the state. a distance of 500 miles, this was a similar method of transporting sheep to that practiced by residents of the state, in driving sheep eastward for shipment, and the evidence was sufficient to show that the sheep were brought into the state for grazing, and that when these sheep were shipped by rail, from a point a few miles after they crossed the line, into Nebraska, they did not become subjects of interstate commerce until their shipment in Nebraska, and therefore were subject to taxation in Wyoming. Carton vs. Board of County Commissioners, 69 Pac. 1013.
A very important distinction arises as to the question of when the transportation of live stock is interstate commerce. Several of the courts have passed on specific instances, as follows:
In Wyoming, an act providing that all live stock brought into the state for the purpose of being grazed should be taxed for the fiscal year during which they were brought into the state, and
which vested the county assessors with power to collect the same. as soon as the property was brought into their counties, was held not to be in conflict with the Constitution of the United States, article 1, section 8, paragraph 3, which provides that Congress shall have power to regulate commerce among the several states; also, that the act was not in conflict with article 4, section 2, which provides that the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states, nor does it conflict with Amendment XIV, section 1, which provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Kelley vs. Rhoads, 51 Pac. 593.
In Montana the court held that property being transported in interstate commerce, while actually in transit through the state. was not taxable. Hayes vs. Smith, 192 Pac. 615.
Another angle of the definition and classification of live stock has been brought out in cases involving the feature of equality and uniformity of taxation, as follows:
In Colorado the court held that as the constitution of the state impliedly required equality in the burden of taxation, taxes could not be assessed against sheep driven into the state in July for a few months' grazing. Carbon County Sheep & Cattle Co. vs. Board of Commissioners, 152 Pac. 903.
In Montana the courts have held that the state is authorized to make a proper classification of property for the purpose of taxation, but a proper classification implies that there exist real differences, as between the subjects constituting the different classes, and excludes the idea of arbitrary selection; also, that the state may designate one day, as to which the assessment of property belonging to one class shall relate and a different date as to which the assessment of property belonging to a different class shall relate. but it may not discriminate against particular property belonging to any class; and the same court held that an act providing for the taxation of live stock brought into the state for grazing after March first, without providing for taxation of live stock brought into the state after such date, for purposes other than grazing, showed such lack of uniformity as to property in the same class as to be unconstitutional. Hayes vs. Smith, supra.
While in Washington it was held that an act providing that live stock driven into the state for the purpose of grazing after the first Monday in April in any year should be assessed for taxes as if it had been in the county at the time of the annual assessment, was not unconstitutional, as discriminating between live stock and other property. Wright vs. Stinson, 47 Pac. 761.
And in Wyoming it was held that a similar statute did not violate any principle of uniformity and equality in assessment, under the
constitutional provision that all taxation should be equal and uniform, nor was it in violation of the constitutional provision that "all property except as in the constitution otherwise provided shall be uniformly assessed for taxation, and the legislature shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal." Kelley vs. Rhoads, 51 Pac. 593. On the question of collection and penalty, the courts have not made many decisions, but they have held in Colorado that one who appeals from an assessment of taxes to the board of county commissioners, on the ground that the taxes are illegal, is not thereby precluded from resorting to the courts to test the validity of such taxes. Board of County Commissioners vs. Wilson, 24 Pac. 563.
And the Washington court held that the power conferred upon the sheriff to collect the taxes levied on stock driven into the state for grazing purposes, without special authority from the assessor. was not a violation of the constitutional rights of the owner. Wright vs. Stinson, supra.
In Wyoming it was held that the authority of the county assessor to collect the tax as soon as live stock was brought into his county, was not in conflict with the United States Constitution, article 1, section 8, paragraph 3, which provides that Congress shall have power to regulate commerce among the several states, and in the same case it was held that when the county assessor, in company with a deputy sheriff, demanded payment of the tax, and when payment was refused, threatened to seize and sell enough of the sheep to pay the taxes and costs, and the agent thereupon paid the tax, such payment was involuntary, and could be recovered, if the tax was illegal. Kelley vs. Rhoads, 51 Pac. 593.
In Kansas the court held that an injunction could not be maintained to prevent the collection of a tax which the plaintiff justly ought to pay, for mere irregularities in the proceedings of the assessor or other taxing officer. Hudson vs. Miller, 63 Pac. 21.
The question of liability for taxation in the various states for portions of the tax year seems to be an important feature of the different decisions; in fact it is the most important question affecting transient live stock, for on that point rests the question of whether this class of property shall be fairly taxed or be overtaxed.
The Colorado court holds that cattle and horses purchased outside the state by residents, and driven into the state for purposes of pasturage, in October of a certain year, are not liable for the taxes of such year, notwithstanding a statute that provides that when any stock is driven into a county, for the purpose of grazing therein, at any time previous to the last day of December of any year, it shall be liable for all taxes leviable in that county for that year, the same as if it had been in the county at the time of the annual assessment. Board of Commissioners vs. Wilson, supra.
In Wyoming the court held that when property was otherwise legally taxable, under the revenue laws of the state, it would not be exempt from such taxation, in the absence of a statute, because it had been returned for assessment and taxation for the same year in another state. Kelley vs. Rhoads, 51 Pac. 593.
And the Kansas court held the same in a similar case, and in the same case held that a non-resident's cattle, kept in that state from February tenth until the latter part of July, were taxable in the county where kept. Hudson vs. Miller, supra.
The other side of the case is presented in the following decisions: Colorado held that as the constitution impliedly required equality in the burden of taxation, a statute applying to certain classes of animals was invalid, and taxes could not be assessed under it against sheep driven into the state in July for a few months' grazing. Carbon County Sheep & Cattle Co. vs. Board of Commissioners, supra.
In Montana the court decided as follows: The taxing powers of the state do not extend beyond the territorial limits of the state, nor to all subjects actually within the confines of the state, and on which the state has the physical power to impose a tax, but are limited to subjects which have acquired a situs within the state for the purpose of taxation. And the same court held that the legislature was authorized to fix a definite date as of which the situs of personal property for taxation was to be determined. Hayes vs. Smith, supra.
In a case before the Utah court, an associate justice, in a concurring opinion, says: "If the assessors will follow the law (and if they do not they can be compelled to do so), no one will be taxed for any property unless he is the owner thereof at noon on the first day of January. That is the precise point of time when ownership must exist, in order to tax property to a particular owner. This is true of all property except such as is obtained upon consignment or such as has escaped taxation, which must be assessed as provided by the statute."
Upon the other hand, if any person acquires property of any value after the first day of January he cannot be legally taxed on that property for the current year." Stillman vs. Lynch, 192 Pac. 272, 281.
The foregoing discussion of statutory provisions and court decisions, concerning the various methods of taxing migratory live stock, will show a lack of uniformity in tax procedure which must of necessity bring injustice to the taxpayer and in many cases cause him unnecessary difficulty and delay in adjusting his tax problems in the various counties or states through which his live stock may have been driven. Any plan which is proposed to remedy this situation should take into consideration not only the