17 S.D. 439 | S.D. | 1903
Lead Opinion
This action was instituted to restrain the sale of certain real property in satisfaction of certain personal property taxes. A demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action having been sustained, and the plaintiff having elected to stand on his pleading, judgment was rendered in favor of the defendant, from which the plaintiff appealed.
Chapter 150, p. 318, Laws 1890, contained the following provisions, which are still in force:
“Sec. 2, The county treasurer in collecting taxes shall collect'the oldest tax first, and shall in no case issue his receipt for the current year until all prior taxes are paid, except in cases where the taxpayer makes and files with the county treasurer his affidavit stating that he has a legal defense to the collection of such former tax, in which case the treasurer shall note in any subsequent receipt the making of such affidavit, stating the amount and year covered thereby.
“Sec. 3. The possession of a tax receipt upon property so listed, issued by the county treasurer under the provisions of this and the preceding section, shall be conclusive evidence that all prior taxes which are chargeable against the lands in •such receipt described, or in case of a personality tax against the person named in such receipt have been fully paid and shall be a bar to the collection of any prior taxes' thereon, unless otherwise stated in the receipt.”
Laws 1891, p. 57, c. 14, §§ 82, 83; Laws 1897, p. 62, c. 28, §§ 84, 85; Rev. Pol. Code, §§ 2148, 2149.
The contention that these sections are inoperative because the subjects to which they relate were not embraced in the title of the general revenue act of 1891 is clearly untenable. Counsel for respondent has evidently overlooked chapter 150,
Section 2, Art. 6, of the Constitution, declares that “no person shall be deprived of life, liberty or property without due process of law,” and respondent’s contention that the foregoing statute is in conflict therewith is clearly maintainable. That each organized county is a body corporate, and as such deemed to be a person within the meaning of the Constitution, cannot be denied. Undoubtedly, a tax legally imposed is municipal property, of which the municipality cannot be deprived except by due drocess of law. After discussing the well recognized doctrine that papers, reports, and other documents may be made prima facie evidence of the facts therein recited, Judge Cooley says: “But the Legislature cannot pass conclusive rules of evidence; that is to say, it cannot make the showing by one party to a controversy conclusive of the truth of the facts shown, thus, in effect, denying tp the other party a hearing. • Its power over the rules of evidence is a power to shape and mould, for the purposes of justice, the rules under which parties are to make a showing of their rights, and not a power to preclude their showing them. The most formal conveyance may be a fraud or a forgery; public officers may connive with rogues to rob the citizen of his property; witnesses may testify or officers certify falsely, and records may be conclusively manufactured for dishonest pur
Dissenting Opinion
(dissenting). I concur in the majority opinion except as to the unconstitutionality of the statute quoted therein, and the-conclusion that the judgment should be affirmed. Realizing that dissenting opinions are of no practical value, I shall merely outline my reasons for not concurring with the majority of the court on the principal proposition established by its decision. It seems to me there is a substantial distinction between a law which attempts to make a tax deed conclusive evidence of its own recitals and a law which .makes the possession of a tax receipt conclusive evidence that the county treasurer has done his duty regarding the collection of prior taxes. It is, of course, logical and just that the recitals in a tax deed, placed there by an agent of the government for the benefit of .the government and the holder of the tax title, should not have the effect-of depriving the tax payer of his property where such recitals are false. But does it
It is contended by respondent that, though the statute be constitutional, it h.as no application to the state of facts disclosed by the complaint in this action; the argument being, as I understand it, that a receipt for taxes can only be conclusive evidence .of the payment of prior personal property taxes when it is issued to and in the name of the person against whom the prior taxes were assessed. I cannot concur in this view. If there is any doubt as to the meaning of section 2149, it arises from the parenthetical clause, “or in case of a personalty tax against the person named in the-receipt.” Were such clause omitted, the section would read thus: “The possession of a tax receipt upon property so listed, issued by the county' treasurer under the provisions of this and the preceding section, shall be conclusive evidence that all prior taxes which are chargeable against the lands in such' receipt' described, have been fully paid and shall be a bar to the collection of any prior taxes thereon, unless otherwise stated in the receipt.” What would then be the meaning of the section? “Property so listed” embraces- both real and personal; therefore the receipt