State ex rel. Lewellen v. Schooley, 84 Mo. 447

State ex rel. Lewellen v. Schooley

84 Mo. 447 | Mo. | 1884

Black, J.

This action was instituted by the collector of the revenue of St. Clair county to enforce the lien for •back taxes for the years 1873, 1874, 1875, 1876, 1877, and-1878, against certain lands in that county which it is conceded, belong to the defendants. The township organization law was adopted and went into force in that county in May, 1872, and remained in force until August-1, 1877,

1. On the trial of this cause the relator made proof of the signature to the tax bill sued upon, and then offered it in evidence, to which objections were made on the alleged ground that the tax bill was not correctly certified from the back tax books. The tax bill appears to be formal and states the facts required ■ by section ■6837, Revised Statutes, and by that section became prima facie evidence that the amount claimed was just ■and correct. The law does not contemplate that this tax bill made out by the collector for suit shall be a copy of a part of the back tax book. It must state certain facts and be certified to by him, and when all this is done, it is made evidence. The objections made to the introduc*452tion of this tax bill did not appear upon its face, .and. were properly overruled, and so was the demurrer to the evidence interposed at the close of the plaintiff’s case.

2. It is agreed that the evidence offered on trial showed that three of the assessment lists made out by the township assessor for the township in which this land is situated, for the years 1873,1874,1875, and 1876 had no affidavit or oath of the assessor attached, and that the fourth assessment list had an affidavit written out, signed,, but not sworn to by the assessor. The law provides that the assessor should subscribe and append to the return of the assessment lists, an oath, the form of which is given, and which among other things must state “ that the value attached to each parcel in the return is, as I verily believe, the full .value thereof estimated according te law.” Acts of 1873, p. 114, sec. 16. There is then no< affidavit or oath whatever attached to these assessment-lists, and they are wholly without such verification as the statute requires. It must be conceded on all hands that an assessment is indispensable to the levy of a valid tax, no matter how that tax is to be collected. The assessment lies at the very foundation of the exercise of the power to tax, and is the first and most essential step in the whole proceeding. It has been said that the result of the action of the assessor is embodied in the assessment roll or list. The statute provides how this roll or list shall be authenticated and a fair compliance with these statutory provisions in this behalf is essential. Cooley on Taxation, 289; Warren v. Grand Haven, 30 Mich. 24; Dickinson v. Reynolds, 48 Mich. 158. While many cases are to be found, where informalities in the oath or affidavit, and the manner of attaching it to the roll or list, are held not to invalidate the assessment, still a total want of such affidavit, when required by law,, has most generally been held to be a falal defect. Marsh v. Supervisors, 42 Wis. 502; Plumer v. Supervisors, 46 Wis. 163; Johnson v. Ellwood, 53 N. Y. 431; Morrill v. Taylor, 6 Neb. 236; Lynam v. Anderson, 9 Neb. 367. *453It was held by this court, also, in the case of State ex rel. Harvey v. Cook, 82 Mo. 185, that a failure of the assessor to verify the assessor’s book by affidavit as prescribed by the statute would defeat the collection of a tax based upon such assessment.

It is contended that the act of 1877 gives the collector authority to collect only upon voluntary payment or distraint of personal property, and that the enforcement of the tax lien has been transferred to the circuit courts, where whatever defences there may be can be heard in the usual course of litigated matters, and that for these reasons the former adjudications ought not to fee adhered to. The effect of the law is to avoid those failures of the officers to follow the substantial requirements of the law in selling the property, under the former method. As the taxes are now enforced, there is much reason for holding that a measurably fair compliance with the assessment law should be regarded as sufficient, but all this will not justify the courts in upholding assessments which are in disregard of the plain provisions of the statute. Beyond doubt, it is competent for the legislature to dispense with the affidavit of the assessor, or, if not wholly dispensed with, to provide that a failure to attach such oath shall not render invalid the assessment, but in the absence of any such legislative declaration, the courts ought not so to hold. The constitution contemplates equal and uniform taxation. To accomplish this, there must be a uniform method of assessment and the law makes that the true value of the property. No more effectual method of inequality in taxation could be devised than that of a discrimination in assessed values. We must conclude, as the law stands, that the purpose of this affidavit was to insure just valuations of the property, and that the oath is material to the validity of the assessment. Section 53 of the act of 1872 (section 6710, Revised Statutes, 1879) provides that: “No assessment of property or charge for taxes thereon shall be considered illegal on account of any informality *454in making the assessment, or in the tax lists,” etc. This-section does preserve the tax lists against informalities, but it cannot be said to wholly dispense with essential matters. For these reasons these taxes levied for the-years before stated must be held to be void.

3. The fact that a mob of lawless persons took the back tax book of 1876 and obliterated the column headed ‘‘ Railroad Tax,” and that the back tax book of 1877 was in a like manner burned, did not affect the right of the collector to collect those taxes. It appears a new back tax book for 1877 was made by the county clerk, at the direction of the state auditor, from delinquent lists. It was proper enough to replace the book from the best evidence that could be procured. Nor did the mutilation of the one book, nor the malicious destruction of the other, prevent him from making up and certifying tax bills. Of course, the inquiry would be open, as to whether the tax bills stated the facts correctly and they could be tested by the next best evidence. All the books and papers relating to the assessment and levy of taxes are evidence to which he may resort.

4. The bill of exceptions shows that the delinquent lists for the various years were returned, but not under oath, one had a form of oath attached, but was neither signed nor sworn to; another had an inf orinal certificate, signed, but not verified, and the other had nothing attached. What might be the effect of this, were the collector endeavoring to sell, or if he had sold the property under the old procedure, is not necessary to be considered. The object of this provision of the law, requiring the lists to be returned under oath is to compel the collector to perform his duty in collecting the taxes, and to enable the county court to determine the amount fox which he shall have credit. The lists in this case were returned and received, and the back tax book made up therefrom. The failure to return them under oath in no *455way affects the justice or validity of the tax, nor the right of the state to enforce its lien therefor.

5. The limitation prescribed by section two, article ten, Constitution of 1875, does not apply as to valid indebtedness existing at the time of its adoption. One levy made to pay such indebtedness does not exhaust the power to make levies to meet such indebtedness. They may be continued until such indebtedness is discharged.

Judgment of the circuit court is reversed and the cause remanded.