Albright v. Van Nort

121 Pa. 118 | Pa. | 1888

Opinion,

Mr. Justice Sterrett :

The complainant, Joseph J. Albright having refused to make the return required by the supplement of 1885, it thereupon became the duty of the assessor to make a return for him, “ estimating the amount from the best information at his command.” As contemplated by the act, the assessor had been furnished with a certified list of mortgages, etc., in favor of complainant, remaining open and unsatisfied on the records of Lackawanna and Luzerne counties. Aided by that evidence the assessor, doubtless according to the best of his judgment, made the return, including therein, among other things, two mortgages in favor of Mr. Albright, trustee, aggregating over $600,000. To that estimated return the county commissioners, as required by the act, added fifty per centum, in the nature of a penalty. Notice of the assessment thus made and day fixed for appeal was duly served on complainant, but he paid no attention to the matter until payment of the tax was demanded by the collector in whose hands it had been placed for collection. He then appealed to the commissioners for relief, alleging that he was misled by the notice served on him by the assessor, in that “the figures thereon were so pointed off as to indicate an assessment of $642.08 instead of $642,088 and for that reason he permitted the day of appeal to pass.” These facts are substantially admitted by the bill and injunction affidavits.

Assuming that complainant was misled by the notice, as to the aggregate amount of the assessment, it was of course a good reason for according or offering to accord to him a hearing as though he had appeared and demanded it on the day fixed for appeal, but it was no reason for relieving him from the duty of making a corrected return, such as is authorized by the proviso to the 9th section of the act, and which the commissioners might and doubtless would have substituted for the return made by the assessor. The assessment was not rendered void by the alleged mistake of the assessor in erroneously pointing off the figures showing the aggregate amount, or in not returning the mortgages as trust instead of individual securities. At most, these were mere irregularities or errors that could be corrected whenever discovered, subject to complainant’s right to be heard, as on appeal, after the correction was made. That right the commissioners were willing to recognize, and accordingly proposed that if complainant would then make the return contemplated by the proviso above referred to, they would substitute the same for the return made by the assessor. One of the commissioners in his affidavit says, complainant called at their office several times and attempted or endeavored to have some portion of the assessment stricken off; that he was requested by the commissioners to make the return provided by law, but he refused to do so.

It is averred in the bill that the two mortgages had been given to complainant as trustee many years ago to secure certain bonds in which he had no personal interest, and that they had, in fact, been paid long before, and “ have been satisfied of record; ” but, it is not alleged or even pretended that they were satisfied of record at the time they were included in the assessor’s return. If they were unsatisfied on the record at that time, the assessor had no right to treat them otherwise than as outstanding securities taxable in the hands of complainant as trustee, and hence it was his duty to include them in his return.

Without intending to question complainant’s motives in anything that he did, or omitted to do in the premises, it may be confidently asserted that in every community there are, and probably always will be, those who are anxious to shirk their share of the public burdens, and thereby cast the same upon others. It was to remedy that great and growing evil, and secure, as far as possible, just and fair returns and assessments of personal property taxable for the support of government, that the act under consideration was passed. As was said in Fox’s Appeal, 112 Pa. 337, “ It was intended to compel each tax payer to disclose to the assessor the full extent of his personal estate, and to avoid the unequal burdens which had been laid upon the shoulders of some persons by the neglect of others to return the full amount of their property. No legal objection can be made to this. If the state has a right to tax moneys at interest in the hands of her citizens, and this cannot be denied, she has the right to know to what extent each citizen holds such property. In the exercise of this right she has the power, and it is part of the taxing power, to require each tax payer to make known to the assessor the extent of his or her property of this description. She has the further right to punish the failure to make such return, by the imposition of a penalty or otherwise, as may best secure the object to be attained.”

The provisions of the 9th section apply only to tax payers who neglect or refuse to make the prescribed return. By their own act they are in default, and are prima facie attempting to avoid their share of the public burdens. The assessor is required to make a return for such delinquents, estimating the amount from the best information at his command, to which amount fifty per centum, in the nature of a penalty, must be added; but, in accordance with the fundamental principle that no man shall be condemned in person or property without a hearing, an appeal to the commissioners is provided, for the benefit of those who may consider themselves aggrieved by the assessor’s return. That is an ample, remedy, and on general principles it may well be regarded as exclusive, .except, perhaps, in extraordinary cases. When the tax payer refuses to make his own return, and by his silence acquiesces in that of the assessor, it may be ’ safely assumed the amount returned, plus the added penalty, does not exceed the sum on which tax is justly payable; and in the absence of more reliable data, that sum may well be taken by the assessor as a safe guide in making the subsequent return in case the tax payer does not make it himself.

There is nothing in the facts of this case to take it out of the general principle recognized in Hughes v. Kline, 30 Pa. 227; Clinton School D.’s Appeal, 56 Pa. 315, and other cases. In Clinton School District’s Appeal, supra, it is said: “All the cases assert the doctrine that when the general power to assess exists, the proper remedy for illegal taxation is by appeal to those to whom the appeal is required to be taken ,* and, if none be given, neither the Common Pleas nor this court can revise the judgment of the tax officers. Indeed, it would be a most ruinous consequence, if, just when the collector comes around with his warrant to demand taxes assessed in due form of law by those having the general power to tax, a court of equity could interfere by injunction.....It will not do to permit the collection of taxes to be interfered with by such persons, unless in the clearest cases of want of jurisdiction in the assessing and collecting officers.”

" The power to make the return and assess undoubtedly existed in this case. At most there may have been an error in returning securities that are alleged to have been previously paid, and therefore not subject to assessment. That error, if it be one, would not have occurred.if complainant had made his own return. Then again, after the error was discovered, the proper correction would doubtless have been made by the commissioners, if complainant had not refused to comply with one of the essential conditions on which they were authorized to act. If he had then made a proper return it should and doubtless would have been substituted for that made by the assessor. That such return was not made and presented was complainant’s own fault. There appears to be no equity ill his case, and the injunction was erroneously granted.

Decree reversed and injunction dissolved, and it is further ordered that the costs of this appeal be paid by appellee.