Aggers v. People ex rel. Montclair
20 Colo. 348
Colo.
1894
Check Treatment
Mr. Justice Goddard

delivered the opinion of the court.

Thе foregoing brief summary sufficiently presents the question involved in this case, namely: Does the fact that the taxes only, and nоt the land, were omitted from the tax list and assessment roll, entitle relator to the relief sought under the following provisions оf our statute relative to the assessment of back taxes ?

“ All taxes shall be levied for the fiscal year ending Novembеr thirtieth (30) in each year, and shall be a perpetual lien upon all real estate subject to taxation, until such tаxes and any penalty, charges and interest which have accrued thereon, shall be paid; and any propеrty, real or personal, which has by mistake or oversight been omitted from the tax list for any year or years, shall be subject to assessment for all back taxes properly chargeable thereon.” Mills’ An. Stats., sec. 3770; Gen. Stats.,.sec. 2818.
“ If by any means any property, real or personal, shall be omitted in the assessment of any year or series of years, and not put upon the assessor’s book, the same when discovered shall be assessed by the assessor for the time being, and рlaced upon his book before the same is returned to the county clerk, ‍‌‌‌‌‌‌​​​‌​‌‌‌‌​‌‌‌‌‌‌‌​​‌‌‌‌‌​‌​‌‌‌​​​‌‌​​‌​‌​‌‍with all the arrearages of taxes which should have been assessed and paid in former years, charged thereon, or in case of the failure or neglеct of the assessor, the same shall be assessed by the treasurer, as provided for ‘additional assessments.’ ” Mills’ An. Stats., seс. 3820; Gen. Stats., sec. 2857.

• It is urged in argument of counsel for plaintiff in error that since the language of the statute is that property omitted from thе tax list or omitted from the assessment book shall be subject to assessment for back taxes, and it appearing from thе facts in this case that the property was not omitted from *351either, hut only the town tax, that the case is not one ‍‌‌‌‌‌‌​​​‌​‌‌‌‌​‌‌‌‌‌‌‌​​‌‌‌‌‌​‌​‌‌‌​​​‌‌​​‌​‌​‌‍that comes within the letter or purview of the statute.

' We can see no merit in this claim. The purpose of the statute evidеntly is to prevent property from escaping taxation through oversight, omission or mistake, and to enable the taxing оfficers to impose upon all property its just and equal proportion of the public burden. The strict constructiоn contended for by counsel for respondent would prevent the accomplishment of this object and purpоse. We think rather that the rule of construction that should be adopted is as stated in Cornwall v. Todd, 38 Conn. 443, quoted with approval by Coolеy in the second edition of his work on Taxation, p. 274: “In construing statutes relating to taxes, therefore, we ought, where the lаnguage will permit, so to construe them as to give effect to the obvious intention and meaning of the legislature, rathеr than to defeat that intention by a too strict adherence to the letter.”

No reason can be perceived why the omission to extend or enter the taxes upon property listed and valued would justify the exemption of such property from ‍‌‌‌‌‌‌​​​‌​‌‌‌‌​‌‌‌‌‌‌‌​​‌‌‌‌‌​‌​‌‌‌​​​‌‌​​‌​‌​‌‍taxation, when the omission of the property itself from the tax list would not do so. If support for this view is neеded it may be found in the case of City of Wheeling v. Hawley, 18 West Va. 472. The court in that case had under consideration a statute the exact cоnverse of ours, and which provided: “ If the assessor discover that any taxes on personal property were оmitted in any former year * * * he shall enter the same with interest thereon in his personal property book.”

And it was contеnded that the statute did not authorize the assessor to list omitted property, but only to extend omitted taxes. The court sаy: “ Doubtless the purpose of the statute was not to let any man escape from his share of the burdens of taxation, because by accident or design in any year he was not charged with the amount of taxation to which he was liablе on the property owned by him. * * * To give the construction to the statute contended for by the counsel of the plaintiff in error ‍‌‌‌‌‌‌​​​‌​‌‌‌‌​‌‌‌‌‌‌‌​​‌‌‌‌‌​‌​‌‌‌​​​‌‌​​‌​‌​‌‍would be not only to violate, in my opinion, the plain letter of the statute, but certainly *352its spirit and purpose, аnd would have the effect to offer a premium to the taxpayer to evade a proper return of his prоperty for taxation. * * * I can see nothing in the language and spirit of the statute which would justify the con-, struction contendеd for.”

In Overing v. Foote, 43 N. Y. 290, in construing a statute similar to ours, in a case wherein the property'- was in fact assessed in a prior year, but to a person not the owner, the court say: “ Here the tax is for certain specific property-, taxed as personal property; and the fact that it was assessed to a stranger, and not to the owner, the previous year, brings it within the plain purpose and spirit of the law authorizing this assessment. Within the law, that was an ‘ omission in the assessment roll ’ of 1864.”

We аre of the opinion that while the case before us does not come within the strict letter of the statute, that it doеs come clearly within its spirit, and the court below properly so held. The further objection that by extending these taxes in addition to the ten mills levied for ‍‌‌‌‌‌‌​​​‌​‌‌‌‌​‌‌‌‌‌‌‌​​‌‌‌‌‌​‌​‌‌‌​​​‌‌​​‌​‌​‌‍1893, thereby charging against the land an aggregate of forty-three mills, is in violation-of section 8, article 11, of the constitution, is also untenable. The limitation therein provided is as to the amount of indebtedness a tоwn may contract, and not upon its power of taxation.

In answer to the claim that by failing to appear before the board of equalization “ the town is estopped from assailing the assessment,” suffice it to say the town is not assаiling the assessment, but concedes its correctness and regularity. That the relator is the proper party to institute this action, see The People ex rel. The County of Contra Costa v. The Board of Supervisors of the County of Alameda, 26 Cal. 642; The Fla. C. & P. R. Co. v. State ex rel. The Mayor, etc., 31 Fla. 482; The People ex rel. Case v. Collins et al., 19 Wend. 56.

The cоrrectness of the judgment of the court below seems to us too clear to admit of serious controversy. The judgment is therefore affirmed.

Affirmed.