Harris v. Stearns ( 1903 )

Puller, J.

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.

The allegations of the complaint are as follows: “(1) That since the 1st day of January, 1901, the defendant has been and now is the duly elected, qualified, and acting treasurer of Douglas county, state of South Dakota. (2) That on the 26th- day of April, 1893, the plaintiff purchased from one John T. M. Pierce the following described land lying and being situate in the county of Douglas and state of South Dakota, to wit, southwest quarter of section 15, in township 100 north, of range 64 west of the 5th principal meridian, and ever since said time has- been, and now is, the owner in fee simple of said above-described land. (3) That on the 29th day of September, 1900, a tax receipt was issued to this plaintiff, by the then treasurer of said Douglas county, upon said property, for the taxes due thereon for the year 1899, which is now in plaintiff’s possession; that there was never noted on said tax receipt by anyone anything to- show that any taxes for any former year or years chargeable against said land were unpaid, or that any one had filed with the treasure]- of said county an affidavit stating that there was a legal defense to the collection of any former tax against said property; that plaintiff also has in his possession similar tax receipts for the payment of taxes on said lands for the years 1898, 1897, and other years. (4) That the above-named defendant, as_ treasurer of said county, has advertised the said above-described land, and the whole thereof, for sale, as appears by the delinquent tax list of the year 1900, and advertisement of date October 1, 1901, for the personal tax of one M. J. Renshaw for the years 1886, 1887, 1888, and 1889, who was at said dates the owner of said land; that the original amount for which assessmentwas made was 134.12; that there is also claimed to be due penalty and interest on said tax amounting to $58.93, and said defendant will, unless restrained by order of this court, pursuant to said advertisement, sell the above-described land for the above-described taxes claimed to be a lien against said land, together with penalty and costs, on the 4th day of -November, 1901. (5) That plaintiff has no speedy or adequate remedy at law.”

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, p. 317, Laws 1890. No objection is or can be made to the title of that act. Its provisions are still in force either as parts of the revised revenue laws or by virtue of the original enactment. If the attempt to re-enact the existing, statute was ineffectual, the law remained as it was before such attempt was made. Moreover, the sections quoted are clearly within the scope of the title of each of the general revenue acts.

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 purposes; and that legislation which would preclude the fraud or wrong being shown, and deprive the party wronged of all remedy, has no justification in the principles of natural justice or of constitutional law. ” Cooley on Taxation, 298. . While the county treasurer is not empowered to hear and determine litigated controversies, the Legislature has attempted to relieve property from the burden of taxation by maxing his receipt for taxes more conclusive than the judgment of a court of competent jurisdiction. The statute not only divests property without a hearing, but operates to contravene the express terms of section 7, Art. 11, of the Constitution, declaring that 1 ‘all laws exempting property from taxation * * * shall be void. ’ ’