State ex rel. Hammer v. Vogelsang

| Mo. | Jun 20, 1904

VALLIANT, J.

This is a suit by the collector of revenue of the city of St. Louis to collect taxes on certain real estate in the city for the years 1885 to 1890, both inclusive, which had been omitted from the current assessments of those years, and the omission discovered in 1896 and the assessments then made, pursuant to section 7562, Revised Statutes 1889.

The petition was in due form, the answer was a general denial and a plea that the assessor had served no notice and made no demand on the defendant to return the property for taxes during those years, and that the claim for taxes for those years is barred by the five-year statute Qf limitations.

The suit was filed December 16,1901.

At the trial the plaintiff introduced in evidence the taxbills, which were in due form, and then rested. The defendant, as a witness in his own behalf, produced a deed from Washington University to himself for this land dated in .1884. He then testified that he had resided in the city from 1884 to the present, and that he had no recollection of having been served by the assessor with notices to return the property for assessment.

He was asked: “Are you prepared to say that you did not receive any or that you just do not remember? A. Well, I don’t remember; no sir.”

Plaintiff, in rebuttal, offered in evidence the books of the assessor’s office showing that notices had been served, but on defendant’s objection the evidence was not received.

Defendant asked a number of instructions to the effect, first, that under the evidence the plaintiff was not entitled to recover; second, the claim was barred by the statute of limitations; third,’that the statute, section 7562, Revised Statutes 1889, was unconstitutional because it was retroactive and because it was an attempt to deprive the defendant of his property without due process of law. The court refused the instructions and rendered judgment for the plaintiff for $2,039.89. Defendant appeals.

I. Appellant’s first point is that the taxbills are void because no notice was served on him as required by section 6685, Revised Statutes 1879, and section 7531, Revised Statutes 1889. The practical difficulty in proving in every such case that notice was served and that other details of the assessment were observéd as prescribed by law, and the additional costs that would be entailed in such suits if such proof in the first instance was required, led the Legislature to enact a statute making a taxbill that comes from the assessor’s office, under official certificate, prima facie evidence of its own correctness. It is not conclusive, but it throws the burden of proof on the defendant to show that it is not true. [R. S. 1899, sec. 9303, same R. S. 1889, sec. 7682, and R. S. 1879, sec. 6837.] In State ex rel. v. Fullerton, 143 Mo. 682" court="Mo." date_filed="1898-04-20" href="https://app.midpage.ai/document/state-ex-rel-lehner-v-fullerton-8012805?utm_source=webapp" opinion_id="8012805">143 Mo. 682, the court, per Williams, J., said: “The taxbill is, by statute, made ‘prima 'facie evidence that the amount claimed in said suit is just and correct. ’ ’ . . . It is not necessary then for the plaintiff to go further and show that all steps taken by the assessor were regular. The presumption, in the absence of evidence to the contrary, is that the officer did his duty.”

The defendant adduced no evidence to overcome the plaintiff’s prima facie case. The utmost he could say was that he had no recollection of the fact that he was served with notice, bnt conld not say to the contrary.

II. The statute nnder which this assessment was made is section 7562, Revised Statutes 1889: “If by any means any. tract of land or town lot shall be omitted in the assessment of any year or series of years, and not pnt upon the assessor’s booh, the same, when discovered, shall be assessed by the assessor for the time being, and placed upon his book before the same is returned to the court, with all arrearages of tax which ought to have been assessed and paid in former years charged thereon.” This is identical with section 6709, Revised Statutes 1879, and section 9177, Revised! Statutes 1899.

In the brief of appellant it is said that this statute is in violation of section 15 of article 2 of the Constitution, because it is retrospective in its operation. The argument is that since the statutes in force during the years for which these taxes are now claimed, required the assessor to notify the defendant to make return of his property for assessment, and that since that was not done, a statute authorizing the assessor without first giving notice to defendant to make the assessment after-wards, for the years omitted, is retrospective in its operation.

This argument is based, first, on the assumption that the assessor did not give the notice in the former years that the law requires, but that as we have seen is an unwarranted assumption.

This statute was enacted in 1872 and has been the law ever since; it was the law during the years the defendant’s property was omitted from the assessor’s books. ' It was in effect a proclamation to the property-owner during all those years that if his property was omitted from the assessor’s books then it would be assessed for the omitted period thereafter, whenever the omission should be discovered. It is in no sense retrospective in its operation.

Tlie argument that defendant is being deprived of his property without due process of law is without foundation. In the first place, as we have already said, the taxb'ills are prima facie evidence that the assessor served the notices on him that the law requires, and in the next place, in this very suit an opportunity has been afforded him to show that he did not have notice, and he was afforded the right to make any defense he had against the demand of the State for its taxes. He was neither forestalled nor prejudged in his defense. He had his full day in court. He has been deprived of no constitutional right.

III. The suit is not barred by the statute of limitations. No right of action accrued until the taxes were assessed and had become delinquent. The assessment was made in 1896, the taxes were therefore not delinquent until January, 1897. The five years’ limitation expired January 1,1902. The suit was brought December 16-, 1901.

The case of State ex rel. v. Fullerton, above referred to, was a suit under this statute to collect taxes on land that had been omitted from the assessor’s books in former years, just as was the defendant’s land in this case, and the court in that case held that the statute of limitations did not begin to run during the years the land was omitted from the assessor’s books and not until after the discovery of the omission and the assessment of the taxes as required’by section 7562, Revised Statutes 1889, and until they became delinquent after that assessment. And so we mow hold.

The trial court took the correct view of this case.

The judgment is affirmed.

All concur.