20 Colo. 379 | Colo. | 1894
Lead Opinion
delivered the opinion of the court.
This cause was first brought to this court by appeal. See Haley v. Elliott, 16 Colo. 159, where the facts and legal questions involved in the controversy are briefly stated. The appeal to this court being dismissed without prejudice, the cause was again brought here by writ of error. A motion to dismiss the writ was strenuously contested, but was finally denied (ante, p. 199), and the cause now stands for review upon the record as presented.
The evidence presented shows that Haley, plaintiff below, was the original owner of the horses in controversy, and that defendant, Elliott, bought them from the treasurer of Routt county at a tax sale. Breeze, the county treasurer, testified that he sold the horses to satisfy a tax for ,1884 due from Haley to Routt county, the tax being due and unpaid at the time of the sale.
The evidence introduced at the trial contains “an exemplification from the abstract of the assessor’s roll of Routt county, together with an exemplification of the precept or warrant issued by the board of county commissioners to the treasurer of Routt county to ¡proceed and collect the taxes for the year 1884.” Thus, it was shown, among other things, that the value of personalty assessed against Haley was $170,520; lands and improvements, $3,780; value of improvements on public lands, $800 ; total tax, $4,248.59. To these exemplifications certificates were attached as follows:
*381 
“Hahn’s Peak, Nov. 1,1884.
“To the Treasurer of Routt County, Greeting: You are hereby commanded to collect the foregoing taxes levied by state and county authorities for the year 1884 as required by law, and this shall be your warrant therefor.
“ Witness my hand and official seal this first day of November, A. D. 1884.'
“ (Seal) C. Brandegee, County Clerk.
“By I. G. Voice, Dpt.”
“Hahn’s Peak, Colo., May 30,1887. •
“ I do hereby certify that the foregoing statement and warrant for the collection of taxes for the year A. D. 1884 is a true and correct copy of the entries made upon the tax roll, list and books of my office showing the taxes due from Ora Haley for the year A. D. 1884, in the county of Routt and state of Colorado, as appears in my office, and the warrant hereto attached is a true and correct copy of the tax warrant attached to said list, roll and book issued to me as treasurer of said county for the year A. D. 1884.
“L. H. Breeze,
“ Treasurer Routt County, Colo.”
1. The objection that the precept or warrant did not run in the name of the people, and so did not constitute “due process of law,” was disposed of on the appeal of this case. See Haley v. Elliott, 16 Colo. 159.
2. Counsel for plaintiff at the outset of his argument states and relies upon the rule that “ specially delegated power must be strictly pursued; ” and, also, that “special statutory power must be strictly pursued.” He claims that the assessment roll introduced in evidence does not comply with the form prescribed by the statute (Gen. Stats., sec. 2865). This argument would have some force were it not that the language
It is objected that the assessment roll does not show the name of Ora Haley in the proper column as prescribed by the statute. But sec. 2926, Gen. Stats., provides as follows : “ Omissions, errors or defects in form in any assessment list or tax roll, when it can be ascertained therefrom what was intended, may be supplied or corrected by the assessor at any time before the return of the assessment roll to the treasurer, or by the treasurer at any time after the receipt of the said roll by him.” * * *
See, also, sec. 2882, where it is said: “ The treasurer, on receiving the tax list and warrant, shall proceed to collect the tax therein levied, and the list and warrants shall be his authority and justification against any illegality in the proceedings prior to receiving the list.” * * *
'These and other provisions of our revenue laws clearly show that the rules contended for by appellant have no application in a case of this kind. These rules were purposely framed so that technical objections, without substantial merit, should not interfere with the collection of the public revenue.
3. An exemplified copy of the assessment roll of Routt county for 1884, duly certified, was offered in evidence by plaintiff. On objection, it was rejected by the court. Neither the ground of objection to such copy, nor the reason for its rejection, appears in the record. Assuming that it was improperly rejected, the error was not such as should reverse the judgment. In one respect the copy offered by plaintiff supplied the deficiency in the copy introduced by defendant; it showed the name of Haley in the proper column. The description of the lands assessed, as shown by plaintiff’s copy, was, however, fatally defective. “ Six \ sections ” was the entire description. This description might, however, be corrected at any time by the assessor or treasurer by virtue of the statute. But, whether corrected or not, the defective
4. In the copy of the assessment roll offered by plaintiff the dollar mark ($) was omitted before the valuation figures. In other respects it did not differ substantially from the copy introduced by defendant. It is contended that this omission vitiated the assessment. Not so. It was just one of those omissions or informalities which the statutory provisions above quoted were designed to cure. The treasurer, as well as the assessor, was authorized to correct such errors and omissions at any time; and in view of the copy introduced, and in the absence of evidence to the contrary, we may well presume that after plaintiff’s certified copy was obtained, these omissions were corrected.
In Chickering v. Faile, Ex'r et al., 38 Ill. 342, it was held that “ assessment rolls, warrant, or other proceedings prior to the judgment for taxes are not rendered invalid or illegal by reason of the absence of a word or character to the numerals, designating the amount of the valuation or the taxes.” See, also, State v. Eureka Con. M. Co., 8 Nev. 15.
Counsel for defendant in argument have called attention to certain matters of which this court may take judicial notice, since they appear upon its records: The tax in controversy in this cause is a,gainst the same party (Ora Haley), is for the same year (1884), and for the same amount ($4,248.59) as the tax in controversy in the cases of Breeze, County Treasurer, v. Haley, 10 Colo. 5, and Breeze, County Treasurer, v. Haley, 11 Colo. 351. Counsel for plaintiff does not in his reply brief, nor at all, deny these matters. We are constrained to conclude that plaintiff has no legal or equitable ground to complain of the taxes assessed against him. As was pertinently said by Mr. Justice Elbert in
■ In Waddingham v. Dickson, 17 Colo. 223, Chief Justice Hayt has clearly expressed the modern doctrine upon this subject, as follows: “ The payment of taxes is a duty which property holders owe to the government. If they neglect this duty they have ho right to expect relief from the courts on account of merely technical errors on the part of the public officers, where no substantial right has been lost or impaired.” This was said in a case involving the sale of real estate for taxes. Certainly, a more stringent rule is not required in case of a tax sale of personal property.
Meritorious objections affecting substantial rights, when properly made to appear, should always be heeded; but mere hypertechnical objections should not be countenanced in the administration of justice. Such is the trend of modern legislation, and such should be the aim of judicial decisions.
The judgment of the county court will be affirmed.
Affirmed.
Rehearing
ON PETITION FOR REHEARING.
1. Further argument was allowed before the court upon petition for rehearing. It was again urged that the omission of the dollar marks in the assessment roll invalidated the assessment, and that in the former opinion sufficient consideration was not given to this point. This court examines with care the briefs and arguments of counsel, but cannot undertake that all authorities cited shall be discussed or set forth in the opinion filed.
Lawrence v. Fast, 20 Ill. 338, fairly states the rule contended for by counsel for appellant, though Mr. Justice
“ It is certain to every ordinary intent, that the figures in the proper columns indicated cents, or dollars and cents. The most common man would so understand them, and could not be misled by them. The figures ‘ 2 48 ’ must of necessity mean two dollars and forty-eight cents, or two hundred and forty-eight cents, which is the same. Mills are never-expressed in that way. Courts of justice must draw the same conclusions from the same facts which the mass of community would draw from them. Taking the columns with their .headings, and the figures in them as they stand, can any reasonable man doubt that dollars and cents, or cents only, were intended? I think not. It is not certainty to every intent in particular that is required in such proceedings, but common certainty.”
In Elston v. Kennicott, 46 Ill. 187, as well as in Chickering v. Faile, cited in our former opinion, it was held that “the want of the dollar mark in the assessment roll, to designate the amount of the valuation or the taxes, will not render the assessment, or the collector’s warrant, invalid aud illegal.” It is claimed that the Lawrence-Fast Case is not overruled by the Chicicering and Elston Oases, because issues of a different nature were involved; hut the latter cases certainly militate strongly against the correctness of the former. In People v. Savings Union, 31 Cal. 132, the earlier Illinois cases were followed.
In Sawyer v. Gleason, 59 N. H. 140, it was held that “ figures separated by a decimal point, in the ordinary method of writing dollars and cents, with no other mark, are understood in the sense indicated by the point, the context, and the subject-matter.”
State of Nevada v. Eureka Con. Min. Co., 8 Nev. 15, seems to have been thoroughly considered, and the court held: “In an action to recover delinquent taxes on the net proceeds of mines, where plaintiff was allowed to introduce in evidence the original assessment roll, notwithstanding there was.no
2. It is again insisted that the original assessment roll made by the county assessor is the primary and exclusive evidence by which the legality of the tax complained of should have been tested. As indicated in our former opinion, such roll, or a duly certified copy thereof, is competent evidence to a certain extent in case the validity of a tax is material to the issue; but such evidence is not necessarily exclusive or conclusive of the validity of the tax. The original assessor’s role, as it leaves his hands, does not show any tax at all, but only the property listed audits valuation, and these are subject to changes, as our revenue laws clearly show.
When this controversy arose, it was necessary to consider several statutory provisions, and also other records than those of the assessor, in order to determine whether a tax in a given case was legal or illegal. The assessment and levy of taxes was not the work of a single officer, but the combined work of several. The work commenced with the lists returned to, or made by, the county assessor, but it might end with amendments and additions thereto made by the county treasurer, s well as by the taxes extended thereon by the county clerk.
The following references are to General Statutes of 1883, as that volume contains the laws in force when this controversy arose. Passing by those sections relating to the listing of property for taxation, it will be found that the assessor was required to make out and deliver to the county clerk annually an assessment book or roll containing in tabular
The assessor and clerk were required to carefully compare the various items in the assessment book at the time it was returned to the county clerk, and to promptly correct all errors and omissions found therein. Sec. 2858.
Section 2875 provided that the county commissioners, as a board of equalization, should have power to supply omissions in the assessment roll, and for the purpose of equalizing the same, might increase, diminish, or otherwise alter or correct any assessment or valuation.
By section 2871 it was provided that the commissioners should, by order entered of record among their proceedings, levy the requisite taxes for the year for school and other county purposes as required by law.
As soon as practicable after the taxes were levied, the county clerk was required to make out a tax list, in a book provided by the county, in alphabetical order, with columns for names of owners, description and value of real estate, value of personal property, total amount of taxes, etc. The statute prescribed the form in which such tax list might be made. See. 2865.
Section 2866 provided that the clerk should attach to the tax list his warrant, under his hand and official seal, requiring the treasurer to collect the taxes therein levied according to law; and further, that no informality in complying with the above requirements should render any proceedings for the collection of taxes illegal; that the clerk should deliver such list to the treasurer by the first day of November, or as soon thereafter as practicable; and that such list should be sufficient authority for the treasurer to collect all taxes contained therein. . '
Section 2886 provided that if on the assessment roll or tax list there should be any error in the name of a person taxed, the name might be changed and the tax collected from the person intended, if he were taxable and could be identified by the treasurer or assessor.
Section 2922 provided that in all entries required to he
Section 2837 was such a broad statute of jeofailes in favor of the validity of every assessment made against property subject to taxation that we hesitate to quote it; and no opinion is ventured as to its proper construction in a case where its application may become necessary. It provided, among other things, that “no irregularity, error or omissions in the assessment of any property, or in the levying of any tax, shall affect in any manner the legality of any taxes levied thereon.” The act of 1889, p. 321 (Mills,’ sec. 3790), is only slightly different.
'■ ■ Section 2926 authorized the treasurer, at any time after the assessment list or tax roll was received by him, to correct any omissions, errors or defects in form therein when it could be ascertained therefrom .what was intended.
Section 2908 authorized the treasurer to assess and tax property omitted from, the tax list, and further provided that the taxes so levied and assessed by the treasurer should be as valid for all purposes as if the assessment had been made by the assessor.
The treasurer’s certificate of the amount of taxes levied upon personal property, and that the same has not been paid, was mad e prima facie evidence that the amount claimed was due and unpaid in any suit brought by the county treasurer to recover such tax of the person so taxed. Sec. 2819.
By section 2950 it was further provided that entries made in the county treasurer's books, the assessment rolls, and the warrants thereto attached, or a certified copy thereof, should be prima facie evidence in all judicial proceedings and in all courts in this state.
So the Code of Civil Procedure, sec. 422, provides that a copy of any record or document or paper in the custody of a public officer in this state, duly certified under his official
The foregoing.is no new rule of evidence. It is practically the common law rule in respect to official registers and other public writings required by law to be kept by public officers. 1 Greenleaf’s Ev., sec. 483, et seq.; 1 Wharton’s Ev., sec. 640, et seq.
The case of Ronkendorff v. Taylor's Lessee, 4 Pet. 358, by the supreme court of the United States, is clearly in point. The following is from the opinion of the court delivered by Mr. Justice M’Lean:
“ Did the court below err in requiring the original assessment lists to be produced ?
“ These lists, under the law, were not conclusive on the corporation, or on the person whose property was assessed. They were laid before the court of appeal for their correction and sanction, and they were then passed to the register’.
“If the assessment was not conclusive, or indeed binding, on either party until sanctioned by the board of appeal, then, without this sanction, the assessment lists could not be received as evidence. These lists being handed over to the register, the law requires him to furnish a tax-book to the collector, from the original assessment lists on file in his office, according to a prescribed form. This was done in the case under consideration; and is not this book evidence?
“ It was made out and arranged by an officer, in pursuance of a duty expressly enjoined bylaw. This not only makes the tax-hook evidence, hut the best evidence whieh can he given of the facts it contains. In this book' are stated the name of the owner of the property, and his residence, if known; the number of the square, the number of the lot, the square feet it contains; the rate of assessment, the valuation and the amount of the tax. Only a part of these appear upon the assessment list.”
Prom the foregoing survey of the statutes as the}r existed when this controversy arose, it appears that the tax list, the
No further discussion is necessary to show that the exemplification of the abstract of the assessment roll, together with an exemplification of the tax warrant, certified to by tbe treasurer of Routt county, was proper evidence of the validity of the tax in controversy. Bjr such evidence a prima facie■ defense was established. The assessment roll, duly certified by the county clerk, was also competent evidence to a certain extent, but was not necessary to the maintenance of the defense. The assessment roll offered by plaintiff cannot be considered as evidence in this case, because not actually admitted, but it may, and must, be considered for the purpose of determining its tendency in case it had been admitted, and since it appears that it could not, if admitted, have had any effect against the defendant’s evidence, its exclusion must be held to have been harmless error.- It was properly admissible in rebuttal, but would have had no effect if it had been admitted in rebuttal, because it does not, considering our statutes, show any such informality, error, or omission as would have tended to invalidate the tax in controversy or to impeach the evidence, the tax roll or warrant already before the court. The property and figures in the abstract of the assessment roll certified to by the treasurer agree with the assessor’s roll as far as they go, and are clearly a valid assessment in all substantial respects.
165 horses ....... 6845
2 mules . . . . . . ... 100.
8200 cattle . . . . . . 163000
3 carriages ....... 200.
Merchandise ....... 200
Amount of all (other) property .... 175.
The figures by which these several valuations were expressed were not separated by any unequal spaces, nor was there any point or other mark to indicate that they were intended to represent other than dollars, the ordinary units of value in our currency. These figures aggregate 170,520, and this sum, with the dollar mark prefixed, exactly agrees with the “ value of personalty ” as shown by the tax warrant. See former opinion. It is evident the treasurer treated the several valuations as dollars, and so supplied the omitted mark, as he well might do, if from the assessor’s list he could ascertain what the figures were intended to represent. Such ivas his express authority under the statute. In supplying such omissions the treasurer ivas bound to exercise reason and sound judgment. The figures obviously represented either dollars or cents.. Treating the figures as 'dollars, the horses were assessed at an average of a little more than forty-one dollars per head; treating the valuation as cents, they would have been valued at a little more than forty-one cents per head. By the same rule the mules were valued at fifty dollars per head. Would it have been reasonable to have valued them at fifty cents per head ? So the average value of the cattle Avas fixed at a little less than twenty dollars per head. Would it have been reasonable to have valued them at less than twenty cents per head?
We think the treasurer Avas warranted in supplying the
It was urged in argument that the rule laid down in Morris v. St. Louis Nat. Bank, 17 Colo. 231, is variant from the views expressed in this case. But there is a clear distinction between the cases. In the Morris Case the tax was not declared invalid. It was the notice of the tax sale that was declared invalid; and thereupon it was held that an action to'remove a cloud from the title to the land sold for taxes might be maintained upon the repayment to the purchaser of the taxes with interest, etc. The right to collect the government revenue was not at all interfered with by the decision in the Morris Case, though the original, owner was relieved against the sacrifice of a large amount of land for a very small amount of taxes, because the notice of the tax sale was not in substantial compliance with the statute.
This case presents a subject that has been prolific of much legal and judicial controversy; but we forbear further discussion, as it is manifest that a different conclusion oaunot be justly reached if the laws of the state be faithfully considered and applied.
The petition for a rehearing must be denied.
liehearing denied.