2 S.D. 153 | S.D. | 1891
This was an action to restrain the defendant, as collector of taxes of Cnster county, from collecting certain personal taxes levied on the property of plaintiffs for the year 1887. A temporary injunction was issued. The allegations of the complaint are in substance as follows: That on the 1st day of April, 1887, the plaintiffs were the owners of 237 head of cattle of taxable age, and were owners of said cattle on the 17th day of May of that year; that the county assessor applied to the plaintiffs to have them list all their property subject to taxation, which they did, and its value was $2,350, but by mistake of the assessor the number of cattle was written down as 120 instead of 237; that afterwards the assessor returned his assessment roll as made for that year, but faded and neglected to make and subscribe to the oath certified by the officer administering it, as provided by law, and failed and neglected to take and subscribe to any oath as the law directs and requires to be attached to the assessment roll, but it was returned without any oath being attached to it; that on the 6th day of July, 1887, the board of commissioners of said county, while sitting as a board of equalization for said county, proceeding upon said assessment roll, did, against the protest of the plaintiffs, increase and raise the valuation of- plaintiffs’ cattle, listed at $2,350, to the sum of $6,440, and increased the number of cattle from 237 to 400 head, making the number 163 more than the plaintiffs owned on the first day of April, 1887; that by the said unverified assessment roll, and the increase of valuation, and without their knowledge and approval, did increase their taxation in the aggregate sum of $250; that the plaintiffs, as evidence of their good faith, are willing and do tender the full amount of their taxes to be levied on the valuation of $2,350, which is the full value of all their personal property subject to taxation, but ask that the balance be declared invalid, and the collector be restrained from collecting the same. The answer of the defendant admits the listing of 237 head of cattle, but denies that the plaintiffs fairly and fully listed all their cattle, and that their value was only $2,350; admits that the assessor did fail and neglect to make and subscribe the oath, but denies
The appellants, upon the record and assignment of errors, insist upon the consideration of the following questions, as involved in the case: (1) If an assessment roll is not verified, as provided by statute, when it is returned, is it valid or is it void? (2) If void, has the board of county commissioners any jurisdiction to levy a tax on the property enumerated in it? (3) What are the duties and powers of aboard of equalization? (4) Is legislation empowering a board of equalization to increase the amount and value of property listed, by a tax-payer without notice, constitutional? In the case at bar the undisputed evidence shows that the assessment roll was actually verified and'signed by the assessor, but the evidence does not disclose the exact day upon which the roll was returned to the office of the county clerk. The testimony of Joseph Pilcher shows that he was the register of deeds and ex officio county clerk of Custer county for the years 1887 and 1888; that the assessor signed his name to th.e affidavit on the 5th day of July, 1887; and that the oath was administered to the assessor by the said Joseph Pilcher on*that day, but that he failed to subscribe his name on that day, but afterwards, in’July, 1888, he did attach to the affidavit the words: “Subscribed and sworn to be
First. In the case of Fifield v. Marrinette Co., 62 Wis 537,
Second. In a still later case, (Railroad Co. v. Lincoln Co., 67 Wis. 478, 30 N. W. Rep. 619,) the validity of the assessment of 1876 — its existence even — is denied for the reason that the document in the clerk’s office of the town, in which the lands were situated, purporting to be the assessment roll of such town for 1876, bears no signature of or verification by the assessor; neither does it appear to have been made by him. The court says: “Do the irregularities and defects in the assessment and levying of the taxes of 1876, or either of them, render the tax proceeding so utterly null and void that it can correctly be said that no taxes were assessed against plaintiff’s land for that year? * * * We conceive that the judgment of this court in Fifield v. Marinette Co., 62 Wis. 532, 22 N. W.
As to the duty of the board of- equalization in regard to changing the assessment without giving formal notice to the tax payer. The statute, (Sections 1584,1585, Comp. Laws) creates a board of equalization for each county, and requires it to meet on the first Monday in July of each year for the purpose of equalizing and correcting the assessment roll as filed by the assessors; and in order to equalize and correct such assessment roll, it may change the valuation and assessment of any
affirmed.