Barton v. Lattourette

• Decision Date: 14 November 1891
• Citation: 17 S.W. 588
• Parties: BARTON v. LATTOURETTE <I>et al.</I>
• Court: Arkansas Supreme Court

17 S.W. 588

BARTON v. LATTOURETTE et al.

Supreme Court of Arkansas.

November 14, 1891.

Appeal from circuit court, Craighead county; JAMES E. RIDDICK, Judge.

Ejectment by P. C. Barton against Mary Lattourette and others. Judgment for defendants. Plaintiff appeals. Reversed.

J. C. Hawthorne, for appellant. E. F. Brown, Jas. A. Meek, and T. P. McGovern, for appellees.

COCKRILL, C. J.

It is not material to determine whether the office of assessor becomes vacant, as of course, upon failure of the person claiming the office to take the special oath prescribed by section 5661, Mansf. Dig., as was held by the learned judge of the federal court for this circuit in the case of Martin v. Barbour, 34 Fed. Rep. 701, or whether the use in the statute of the language, "the office shall be declared vacant" in case of failure to take and indorse the oath as the statute requires, "presupposes some step to be taken for that purpose," as was declared by this court in the case of Moore v. Turner, 43 Ark. 250. The person performing the duties of the office was assessor de jure or else de facto, and in neither case can the title to the office be inquired into in a proceeding like this, to which the officer is not a party. We have sustained the acts of officers de facto in judicial positions where the liberty as well as the property of individuals was concerned. Keith v. State, 49 Ark. 439, 5 S. W. Rep. 880; Rives v. Pettit, 4 Ark. 582. There would seem to be no imperative reason, therefore, for withholding assent to the application of the same doctrine in tax proceedings, and this court has sanctioned the application of the doctrine to this class of cases. Murphy v. Shepard, 52 Ark. 356, 12 S. W. Rep. 707; Moore v. Turner, 43 Ark. 243; Twombly v. Kimbrough, 24 Ark. 459, 474; Scott v. Watkins, 22 Ark. 556. The supreme court of the United States has done the same thing in reference to the office of assessor in a case which arose in the District of Columbia, and in which the court was not embarrassed by state decisions. Ronkendorff v. Taylor, 4 Pet. 349. Judge COOLEY says that the clear and very strong preponderance of authority is that way. Cooley, Tax'n, (2d Ed.) pp. 255, 256. The real question in this case may be stated thus: Does the failure to take the special oath set out in section 5661, by an assessor who has qualified by taking the general oath prescribed by the constitution to faithfully discharge the duties of his office, render invalid the deed made in pursuance of the tax-sale? It is argued that, as this oath might have been dispensed with by the legislature in devising a system for the collection of the revenue, the effect of section 5782 of Mansfield's Digest is to cut off the opportunity of making the objection after the deed is executed. But, as we find the defect is not fatal to the deed, the case does not afford us the opportunity of determining whether the section mentioned was intended by the legislature as a declaration that the sale for taxes should not be avoided except for the causes therein specified, or whether it was an attempt on the part of the legislature to make the clerk's deed, when "executed substantially" as the act requires, conclusive evidence of a valid sale, when in fact the sale, by a fair construction of the act, was invalid, and should be declared so without reference to the lapse of time, if no deed had been executed in substantial compliance with the act. In the latter event, the section would fall under the ban of the ruling in the case of Railway Co. v. Parks, 32 Ark. 131; otherwise it would operate as indicated in Radcliffe v. Scruggs, 46 Ark. 96. The only reference to real estate contained in the special oath is that it shall be appraised at its "actual cash value;" otherwise the oath relates to personal property only. Another provision of the statute requires the assessor to appraise real estate at its true value in money, and not at what it would bring at auction or forced sale; and he is required to make affidavit to his return to the assessment roll that he has so valued such tract. The special oath only binds the assessor...