Show County Attorney Renders Opinion On i Bonneville Taxes r August August S 1929 Honorable Board of Count County Commissioners Davis County Utah Sirs In rn compliance with th your request t for m my opinion on 1111 the question as to whether the Board B 3rd has power to abate or refund certain taxes levied for the year eal 1928 for the Bonneville Irrigation District District I herewith submit sub- sub submit mit m my opinion on such question I Iam ant making a statement of the facts involved from which the question to be tobe decided can C'an be determined TE ST STATEMENT OF O- FACTS PACTS The Bone Boneville Irrigation Irrig district is isan isan isan an existing municipal corporation in Davis County Utah Included within it and subject to tax are a certain number o of acres of land All this land has been taxed each year up to the year ear 1928 during which year ear ap- ap ap proximately approximately landowners in the district obtained an injunction in the Second Judicial District Court re- re restraining re restraining straining the levy l vy and or collection of any d district t taxes t upon their lands The budget et of the district for each ea h year ear provides a fixed amount of money loney ii t obe raised L joi purposes The Board of County Commissioners of Davis Coun Countr County ty tr Courty whose dut duty it is under the law la lato to fix the rate of le lenece levy nece ary ry to raise such amount of money i b t fi fi- fi fir ing ing the rate o of levy for the the year ear H 1928 3 excluded the lands of the I landowners n owners above mentioned This the rate of lev levy by approximately approximately matel fifty tift per cent and conse- conse conse conse- consequently consequently n increased d the tax by an equal amount upon the rest of the landown landown- landowners landowners landowners ers within the district A landown n landowner er r upon whose lands this increased tax was levied now contends that in- in in inasmuch as the injunction above aboe re- re referred re referred to has been dissolved the in- in inI increase in increase I crease cre-ase in taxation for the year 1928 should be refunded or abated ted in a a case the tax has not been paid y The above statement of facts acts rais rais- raises rais- rais raises raises es two questions First should this tax be abated refunded to the or extent ex extent ex- ex tent of the increase caused by theo the o obtaining of the injunction and sec sec- second sec second ond has the Board o of Count County Commissioners Com Com- Commissioners Corn missioners mis the power to abate or 01 re- re reo refund re refund o fund sa such h tax so levied The precise question presented here has not I believe been decided d b by the courts o of this and state state and so far as I am able ahle to determine neither has hJ'S it been decided b by the courts of last resort of am any other state How How- how how- however However ever cyer it is m my opinion that it can can be determined b by the statute law and the decisions of our Supreme Court and the decisions of the United States District Court for the Dis- Dis District District Dis District of Utah It ma may be taken ken to be true that if the t tx tax x was legally le levied leed ed than y the questions presented must be de- de decided de decided decided in the negative but on the theother theother theother other hand if it the tax was illegally ally levied Je then the questions should be answered in the affirmative If the tax was illegally levied and if it lies within the power of the Board of County Commissioners to refund or abate it then the Board should doso do doso so and thus make it unnecessary for forthe the taxpayer to go o to the trouble and expense of bringing suit in the courts Before it can be decided whether r the tax was illegally levied the na- na nature nature na nature ture of the tax must be determined i i e whether it is a general tax o oG oa or oia r G a sp special Cia I tax In the case of Lund berg Lund Lund- Lundberg berg vs Irrigation Irrig District 40 Utah 83 Pacific 1039 the Supreme Court of this state this thi s question as to the nature of the tax Said paid The fhe assessment objected to in this is case case is what is usually denominated a special assessment t hazed based upon benefits accruing to the th theland e land which is assessed The same court reiterated this doctrine in the th case of Nelson vs 5 Board of Commis Commis- Commissioners Commissioners Commissioners of Davis Count County Pac In that case the court says It will be controlling of this cas easto case caseto casto e to determine mine whether the bonded indebtedness in- in in of an irrigation district t partakes of the nature of a general genera 1 municipal indebtedness or is seever seever- able and partakes of the nature oan o f an indebtedness for local improve improve- improvements merits ments The court then points out ou t that the indebtedness is a special specia 1 tax b based sed upon benefits received and points out that the whole act ac t 1 Laws of Utah 1919 Chapter Chapter- 68 68 negatives the claim that it was in- in intended in intended intended tended by b the legislature that thi th the e 2 1 indebtedness in should be an obligation n 1 charge chargeable against all of the proper proper- property property property ty in the district as a general muni muni- municipal municipal municipal cipal liability The court says page 2 The legal question presented is i s clearly stated in the brief of amicus a s curiae ae as follows The question at issue in this Po pro seeding is whether or not under the th e Irrigation District Act of the thc State Stat StatI e of Utah Chapter GS 68 Laws of Utah Uta I 1919 as amended b by Chapter 7 Laws Lawa I of Utah 1921 a budget en enbe can cabe n be certified b by the dil directors tol'S of an ii h rig district anda and a tax levied le b by bya ba a board of county commissioners in ione one year ear to include the delinquencies or of a previous pre year In other words 5 whether a cumulative levy l vy can be c made so tha that t the property of one landowner can C'an be made liable for fOI it its proportion of delinquencies arising from refusal of others to pay par assessments assess assess- assessments assessments ments me on their lands The question que on thus presented was o decided d in the negative e by the court t without dissent The Nelson case was ca-was was recognized a as controlling author author- authority authority ity on this question by Judge Tillman Till Till- Tillman Tilman man D Johnson of the United St States les District Court in the case of Con Con- Cone Coni e i Securities Corporation VS 1 Board of County Commis Commissioners joners of Davis county et ct al aI decided this year r In which case the present Board was w defendant defendant- Such was the holding of the highest court of the State of Colorado similar in a statute sim sim- sim- sim ilar to ours The tax then being being an individual tax based upon benefits re received and it being illegal to tax the lands of one landt landowner for the delinquencies voluntarily landowner incurred of another land land- owner does the fact that one or more andO ma may have secured tem tarn temporarily an injunction restraining the lev levy andor and or collection of the tax against their lands make the lands of the remaining landowners liable to tobe be assessed for fOl the delinquencies cJ thus created It would seem that such is i not the case cast nor nor- was it the intent i increase or of the thc law There has lias been no ir- ir in ln crease in the benefits received by bv the ha c retraining lands the have remained as originally assessed upon Therefore the formation of ot the district There There- fore era no matter how hon many ny ers 15 default default whether without excuse or whether under color of ri right ht the bud budget budet et of the district cannot be met by b addin adding he tax to the lands of the lands of the landowners who ho have 1 Raid id their full share If this were the case then the total taxes levied over oYer a period of years would exceed the amount necessary to payoff pay off the indebtedness which would necessitate te tean an adjustment years after the tax wa was paid or levied At the time of the formation of the district and the thc of the bonds the benefits received were determined and can cannot can can- cannot cannot not be altered in any way without the consent o of the taxed An ent apparent exception to this is is in the case of lands which were in the district but which be because b be- be because cause of being incapable of in ing receiving benefits have since been de cd ar- ar ared ed cd not to have been so S1 included and hence not liable for their rata pro share pro of th the indebtedness Such lands however arc me small in area and the burden cast upon the re- re remaining re remaining raining lands because of their ex- ex exclusion ex exclusion elusion is negligible It should be b e noted that the apparent exception re- re re referred to here may prove rove to be no exception on that nl nr am ant not no t rendering my opinion That the m members of the Eighteen Eighteen- t th Eighteenth h Legislature o of the State of Utah h concluded c that irrigation district t taxes are arc an individual n and not cumulative or a bl blanket tax it demonstrated by the fact that tha t this le legislature amended the Session n Laws L aws of Utah 1919 under which th the e Bonneville Irrigation District was vas or organized or- or organized or g and in such amendment provided as follows any any land land- landI landowner landowner I owner may tender and the county comity Y treasurer t shall r receive eive money or o r bonds andlor coupons of the district t equaling such landowners landowner's proportion n of o f the total issue of bonds of the dis- dis district dis cis district wi with h interest to maturity bas bas- based based based ed on the proportion of the landown landown- landowner's landowner's ers er's e rs r's water allotment to the total fin final fin fin- final alwater a al l water allotment of the district and taxes for the payment of the th e bonds or interest on the bonds o of the th e district shall not thereafter be levie levied d against such landowner This means mean s tha any landowner ma may pay his hi s share of oC the entire obligation at an any time anytime an relieve him himself elf of fur fur- further further furher ther t her taxation for the tha l se of pay pa m ing paying g olF the mends rondi 11 1 of the district Such b being ing the case how C can it tt be legs legal for the taxing Xing authorities to levy a tax on such landowners landowner's property to t o corer er the delinquencies of othe r landowners l Such action would be in indirect it indirect s direct of the act above e e referred r to and quoted from The only conclusion to be deduced deduce d fro above is 3 that the tax re- re referred re referred f erret t was 13 illegally levied lev ed and should b refunded funded or abated This conclusion bril us to the fur fur- further furher further t ther her qu question tion ae a to tv whether the e Board B oard of County Commissioners of o f Davis county has power to refund 01 o t abate the illegal portion of the tax Under Section Compiled Compile d Laws L aws of Utah Urals 1917 1911 dealing with wit h taxation the Board would have pow pow- power power e er r to t the illegality or error erro r before b the tax is paid The section n reads as follows j provided that the board of county commission commission- commissioners e ers rs upon sufficient evidence being heir g produced that property has been er- er erroneously erroneously er erroneously or 01 illegally assessed as ma a y y order the county treasurer to allow alloy v t the he taxes on that part fo to property y en or 01 illegally assessed to tobe t tobe be before e payment of sai said d Y But as I 1 understand tha th e facts in this matter most of th the e taxes so illegally ally a assessed se sed have not no of t been paid and th lands have bee n sold to the county for delinquent di dis- dis district district s- s taxes As the county now hold hol holds 3 title to these lands by reason of suc such h sales and as the board has power t to correct before payment of the tax x and upon redemption front from tax sale sal salto e to accept a lesser amount than the th e tax Section Compiled Laws Lawsl of ol Utah 1917 it would se seem seam m that the th l e board would would would have power to act in inthis i ir n this case especially as justice would be done thereby It is my opinion th therefore that thai this tax is illegal and that the Board Boan of County Commissioners of Davis Davi county has power to refund an any tax ta paid under such circumstances and andor andor or to correct the assessment where the tax has not been paid and 1 i land has been sold to the county for non of delinquent district taxes Ver Very truly trul yours ours PI ST N THATCHER Count County Attorney |