Kelley v. Rhoads

Mr. Josiah A. Van Orsdel for plaintiff in error.

Messrs. Willis Van Devanter and W. R. Stoll for defendant in error.

Statement by Mr. Justice Brown:

This was a petition originally filed in the district court of Laramie county, Wyoming, by Kelley against Rhoads, county assessor of the county of Laramie, to recover back certain taxes to the amount of $250 upon a flock of sheep owned by the plaintiff and in charge of a shepherd who was driving them through the state of Wyoming, from the then territory of Utah to the state of Nebraska.

The case was finally presented to the district court upon the following agreed statement of facts, upon which the court entered judgment in favor of the defendant, which was affirmed by the supreme court of the state (9 Wyo. 352, 63 Pac. 935):

Agreed Statement of Facts.

1. John Kelley is now, and was at all times mentioned in the petition filed herein, a citizen and resident of the state of Kansas.

2. Oliver F. Rhoads was the duly elected, qualified, and acting county assessor of the county of Laramie, state of Wyoming, from the 7th day of January, A. D. 1895, until the 4th day of January, A. D. 1897.

3. Plaintiff at all times mentioned in the petition herein was the owner of the sheep mentioned in said petition, and that said sheep on or about the 29th day of October, A. D. 1895, were in the county of Laramie, in charge of James M. Yeates, the agent of the plaintiff, who was driving and transporting said sheep through the state of Wyoming, from the then territory of Utah to the state of Nebraska.

4. In driving said sheep in such manner it was the practice of the person in charge to permit them to spread out at times in the neighborhood of a quarter of a mile, and while so being driven the sheep were permitted to graze over land of that width. They were driven in some instances through large pastures, in other instances through the public domain, and in other instances through pastures inclosed by fences. While being driven from the western boundary of the state to Pine Bluffs station, they were maintained by grazing along the route of travel.

5. Said sheep were duly returned by plaintiff for taxation and assessed by the assessor and collector of taxes for the year 1895 in the county of Juab, territory of Utah.

6. On the 29th day of October, A. D. 1895, while the said herd of sheep were in charge of the agent of the plaintiff in the county of Laramie, state of Wyoming, the defendant, in company with S. J. Robb, deputy sheriff, of Laramie county, Wyoming, collected from said plaintiff's agent the sum of two hundred and fifty dollars ($250), alleged to be taxes due for the current year 1895, and that before the collection of said tax, upon demand for the payment of the same by the said defendant, the plaintiff's agent refused to pay the same, whereupon the said defendant said to the agent of plaintiff that the said defendant could or would take enough sheep and sell them, and from the proceeds retain the said amount of two hundred and fifty dollars ($250) with costs; whereupon the plaintiff's agent to prevent the seizure and sale of plaintiff's property and the damage that would thereby accrue to plaintiff, paid the said defendant the sum of two hundred and fifty dollars ($250).

7. It was a fact, and defendant had knowledge of the fact and was notified by plaintiff's agent, that said herd of sheep was being driven across the state of Wyoming to Pine Bluffs station for the purpose of shipment, and that the same were not brought into the state for the purpose of being maintained permanently therein.

8. At the time of the regular assessment of property for the purpose of taxation in the county of Laramie, in the year 1895, plaintiff had no property of any kind whatever in the county of Laramie, or in the state of Wyoming.

9. At the time the assessment of property in the county of Laramie for the year 1895 was equalized by the board of equalization of the county of Laramie, plaintiff had no notice of the time or place of meeting of said board of equalization, or that any assessment had been made against him for any purpose whatever within the state of Wyoming or the county of Laramie.

10. At the time the taxes for the current year 1895 were regularly and legally levied in the said county of Laramie, plaintiff had no property whatever in the county of Laramie or state of Wyoming.

11. Plaintiff has demanded of defendant a return to him of the amount of tax so collected from plaintiff's agent, but defendant refused and still refuses to return to plaintiff the amount so collected.

12. The time consumed in driving said sheep from the western boundary of the state of Wyoming to Pine Bluffs station, in Laramie county, was from six to eight weeks, and by the route followed the distance traveled was about 500 miles.

13. The said taxes were assessed, levied, and collected by the defendant without the action, authority, or assistance of the board of county commissioners, or of any other officer or officers of Laramie county.

14. The said property so owned by the plaintiff had not been regularly assessed in any other county of the state for that year, and no taxes had been paid thereon in any other county in the state.

15. That for the purpose of shipping said sheep it was not necessary that they should be driven into the state of Wyoming, and that the railroad over which they were shipped could be reached from the point where the sheep were first driven by traveling a less distance than was necessary to travel from the place where they were first driven to any point in the state of Wyoming.

16. That at the time the $250 was paid to the defendant, it was paid without any protest other than appears in the other paragraphs of this agreed statement of facts.

Mr. Justice Brown delivered the opinion of the court: