195 Iowa 1103 | Iowa | 1923
The appellants in their brief specify several propositions relied upon for a reversal of the decree of the district court, as follows:
1. “That the court erred in holding the tax was legally assessed. ’ ’
This is the statement of a mere general conclusion, without, any specification of the grounds thereof, and presents nothing for us to review.
2. “That the court erred in holding that appellants are not entitled to any notice and hearing of the search warrant proceedings for the destruction of the cigarettes seized.”
If by this exception is meant that a search warrant can issue only upon notice to defendants, we think it clear that no original or preliminary notice is required, precedent to the issuing or service of the warrant. The statute does not provide for such notice, and in the nature 0f the ease such a restriction would defeat the very purpose the warrant is intended to effectuate. And if the objection made is that such notice is necessary to a valid order for the destruction of the cigarettes, we think it must be said that, even if the objection is well taken, it does not follow that an error in that respect renders the tax void. The order for the destruction of the cigarettes is a mere incident in the proceedings for the enforcement of the law, and not a condition precedent to the assessment or collection of the tax. We therefore regard it unnecessary, for the purposes of this action in equity, to inquire or determine whether the order to destroy was prematurely made, or whether the apparent discrepancy or confusion in'dates is merely a clerical blunder in making up the record. It does appear that a notice was, in fact, given, but there is no pretense that any appearance or response thereto was made or attempted to be made on either of the dates named, or that plaintiffs were in any manner deceived or misled.
The third objection is that “the court erred in holding that a strict compliance with the statute was not necessary,” and ‘ ‘ in holding that the search warrant was legally issued. ’ ’
Here again it must be said that the proposition • stated is
Counsel say that the statute, Sections 5007-a and 5007-b, Code Supplement, 1913, indicates the legislative intent to compel the bringing in of the keeper of the place, along with the cigarettes seized, in order that there may be no question but that he had opportunity to assert or prove his defense, if any he has. It is urged that this indicates that a warrant of arrest must be issued against the person charged with violation of the law, and that, as the record does not disclose any such warrant or arrest in this case, there was no jurisdiction to condemn the cigarettes or to assess the tax. If the purpose of the statute referred to is to bring knowledge of the proceedings home to the persons charged with violating the law, and afford them opportunity to make a defense, if any they have, the plaintiffs in this case are hardly in a situation to make serious complaint. They did have ample notice of the proceedings, and were given opportunity to contest the proceedings against their property, but chose to ignore it. It would be a most unreasonable, not to say illogical, proposition to say that the tax may be avoided because the proceeding against their property was not emphasized by
Counsel have cited us to numerous precedents relating to the necessity of compliance with the law in assessing property for taxation, with all of which we have no quarrel; but we cannot agree that they are applicable or controlling in this case. Upon that point we may well adopt the language of the learned trial court, who concludes a carefully prepared opinion discussing the plaintiff’s petition as follows:
“In view of the fact that plaintiff’s counsel stressed the fact that it has been uniformly held that there can be no taxation except as authorized by‘statute or constitutional provision, and that the taxing power can be exercised only in accordance with the forms of the law, it is proper that I should add that there is a difference in. the facts in the cases so holding, from the facts in this case. In the cases referred to, the taxing power not only -created the conditions that authorized the tax, but likewise fixed the amount thereof. Not so in this case. The law fixes the conditions that make the tax due, and also fixes the amount of the tax. As an illustration of the first, see Chicago, M. & St. P. R. Co. v. Phillips, 111 Iowa 377, and as an illustration of the last, see Hodge v. Muscatine County, 121 Iowa 482, and Newton v. McKay, 130 Iowa 596. The Hodge case was appealed to the Supreme Court of the .United States, and by that court affirmed.”
For the reasons stated, the. decree of the district court is— Affirmed.