Town of Ketchikan v. Zimmerman , 4 Alaska 256 ( 1910 )

LYONS, District Judge.

It is apparent from the pleadings that the only questions involved are: First, the sufficiency of the notice to the defendant by the assessor of his filing a list of all the taxable property in the town of Ketchikan with the town clerk; and, second, the sufficiency of the notice, if any notice is required, of the meeting of the common council for the purpose of revising, reviewing, and approving such list or assessment.

Referring to the notice required by the assessor of his having filed a list of the property that he has assessed with the clerk, the defendant contends that under section 6 of an act to amend and codify the laws relating to municipal corporations in the district of Alaska, approved April 28, 1904 (33 Stat. 529, c. 1778), the assessor must serve a notice personally on each person residing in the town, whose property has been assessed, that he has filed his list with the clerk of the town, showing all property of said town listed and assessed by him.

That portion of Section 6 of the act above mentioned, which is germane to the consideration of the question involved, provided :

“The assessor appointed by the council shall once each year, at such time as the council may direct, duly list and assess all the taxable property of the town at its just and fair value. He shall file such list and assessment as soon as completed with the clerk of the town, and shall serve a notice of the filing of the same upon each person residing in the town whose property has been assessed."

The evidence in this case tends to show that the assessor duly listed and assessed all the property within the town of Ketchikan according to law and the ordinances of said town; and that thereafter he mailed notices of filing the list and assessment with the town clerk to every party whose property was assessed. The clerk of the town testified that he prepared such notices for the assessor, and that, while he was not able to testify positively, he was convinced that such notices had been mailed to every resident of the town of Ketchikan whose property had been assessed. The defendant did not deny having received such notice by mail, as his counsel státed that he considered it immaterial whether such notice had been received by the defendant or not, since it was admitted by the plaintiff that there had been no personal service on the defendant of the filing of such list of property assessed.

If the mailing of notice is a sufficient service of notice of the filing of the assessor’s list with the town clerk of the property assessed, then the burden is on the defendant to show that such notice to him was never mailed, or that be never received the same, for the assessor acts as a quasi judicial officer in making the assessment, and bis acts in that respect will be presumed to be legal and regular, unless Ms records, or the records of the common council, disclose the contrary; and the common council acts as a quasi judicial body in revising, reviewing, and approving the assessment made by the assessor. Therefore, unless its records disclose affirmatively noncompliance with the law or the town ordinances, its actions are prima fade legal, and one questioning either the acts of the assessor or the common council must assume the burden of showing that they are either irregular or ultra vires: Allen v. City of Portland, 35 Or. 420, 58 Pac. 509; Boyce v. Peterson, 84 Mich. 490, 47 N. W. 1095.

But the defendant contends that the service of the notice of the filing of the list with the town clerk must be a personal service, and contends that, whenever a notice is required to be served, personal service is meant, unless otherwise specifically provided.

There are three kinds of service known to our law: Personal service; substituted service; and service by publication. Our statute provides (section 46, p. 152, Carter’s Annotated Alaska Codes) that in all cases the defendant shall be personally served, except in the particular instances referred to in said section and the following section. And in re Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, the court holds that no personal judgment can be procured against a defendant, except upon personal service. But should the same strictness be required in the service of notice upon a taxpayer that certain property has been taxed as when he is served with process notifying him that a judgment will be taken against him personally, unless he show cause in some manner before the court why such judgment should not be granted?

“Any legislative reqMrement as to service of notice must be complied with to render the same valid. Hence, where the charter requires personal service upon property owners, leaving a copy of the notice at their residence is not sufficient, and the posted notice to owners of abutting lots will not, it seems, constitute notice to the owner of a lot that does not abut the streets, although it is assessed as abutting thereon. Notice to a life tenant is not notice to remaindermen; but where service of the notice is served upon the executor of an estate, who is also a life tenant in possession, such notice is sufficient to bind him both as executor and as life tenant. Where the trustee of an estate received in due time a notice directed to the heirs, he was not heard to complain of the failure to address the notice to him as trustee. Where the manner of service upon resident owners is not prescribed, it has been held that the notice may be sent by mail.” 28 Cyc. 1147, 1148.

City of Lawrence v. Webster, 167 Mass. 513, 46 N. E. 123, wherein the court said:

“The sending of the hill by mail, it having been actually received in due course of mail, was, in the opinion of a majority of the court, sufficient. It gave the defendant all the information which a notice could have given if personally served by an officer. The assessment order was passed on December 28, 1891, and the bill was mailed and received on the 9th day thereafter. This, considering the fact that steps have to be taken by different departments of the city government, was within the requirement that the notice should be forthwith served. The statute makes no other specific requirement as to how the notice shall be served, save in the case of nonresident owners, while, as to other notices required by the statute, explicit directions are given as to the manner of service. A communication sent through the mail, and actually received, is substantial notice, and in the present case was a sufficient compliance with the direction of the statute.”

Wilson v. City of Trenton, 53 N. J. Law, 645, 23 Atl. 278, 16 L. R. A. 200, wherein the court quoted with approval the following language from the case of Tanham v. Nicholson, L. R. 5 H. L. 561:

“It was held in the House of Lords that when a tenant was shown to have an agent empowered to receive all communications for him, the delivery of a notice to quit to such an agent was effectual service on the tenant. Lord Westbury held that, if the circumstances were insufficient to establish an agency, they might raise a presumption of actual delivery of the notice to the tenant, which, in the absence of contradiction, would be sufficient.”

Sherman v. Fisher, 138 Mich. 391, 101 N. W. 572; Lyman v. Plummer, 75 Iowa, 353, 39 N. W. 527, wherein the court holds:

“That a statute authorizing cities to provide, by ordinance, the mode in which a charge upon landowners for street improvements shall be assessed confers the power to determine the kind of notice of the assessment to be given the landowners; and, a notice by publication having been prescribed by a city ordinance, such notice is sufficient.”

It is true in this case the city has not provided by ordinance any other method of serving notice upon the taxpayers than that provided by the statute, but the city has for years adopted and approved the method of notifying taxpayers of the filing of the tax roll with the clerk by the assessor, as was done in this instance, and that is by mailing such notice to the residents of the town, whose property has been assessed.

There is no controversy in this case as to the reasonableness of the levy made by the council; no bad faith is charged. The defendant has failed to show that he did not receive or was not aware that the assessment had been made by the assessor and filed with the clerk; his only contention being the technical one that he was not personally served with such notice. In the absence of any such showing, it seems, and the court so holds, that the mailing of a notice to him of the filing of the list and assessment with the clerk by the assessor is in substantial compliance with the statute, which requires generally the service of such notice without indicating in what manner the notice may be served.

With reference to the second contention made by the defendant why the plaintiff should not have judgment, to wit, that no notice was served upon him of the meeting of the common council for the purpose of revising, reviewing, and approving the list or assessment made by the assessor, it is sufficient to say that the statute does not specifically require any such notice, but the ordinance provides that the common council shall meet for such purpose on the 1st day of November. The proof shows that such and all of the ordinances have been published. The proof further shows that notice was given by publication of the meeting of the board of equalization. There is no evidence that the defendant ever filed a protest against the assessment made against his property by the assessor, and never invoked the power of the board of equalization for the purpose of reducing the assessment made on his property by the assessor. Under the circumstances, it would seem that he is in no position fi> complain of what was done by the common council sitting as a board of equalization, particularly when there is no proof to indicate that the common council modified in any respect the assessment which had been made on the property of the defendant by the assessor. See Tripp v. City of Yankton, 10 S. D. 516, 74 N. W. 447; Lyman v. Plummer, 75 Iowa, 353, 39 N. W. 527.

The plaintiff should therefore recover from the defendant the sum prayed for in the complaint, together with' its costs and disbursements herein.

Let findings of fact, conclusions of law, and judgment be entered in accordance herewith.