Evans v. Fall River County

• Decision Date: 29 July 1896
• Citation: 68 N.W. 195,9 S.D. 130
• Parties: EVANS et al. v. FALL RIVER COUNTY et al.
• Court: South Dakota Supreme Court

68 N.W. 195

9 S.D. 130

EVANS et al. v. FALL RIVER COUNTY et al.

Supreme Court of South Dakota

July 29, 1896

Appeal from circuit court, Fall River county; William Gardner Judge.

Action by Fred T. Evans and another against the county of Fall River and others to perpetually enjoin the execution and delivery of a tax deed. From an order overruling their demurrer to the complaint, defendants appeal. Affirmed.

Corson and Haney, JJ., specially concurring.

Walter Anderson, for appellants. G. M. Cleveland and James W Fowler, for respondents.

FULLER J.

Upon the ground that the complaint in this action--to perpetually enjoin the execution and delivery of a tax deed--does not state facts sufficient to constitute a cause of action, a demurrer was interposed, and this appeal is by the defendants from an order overruling the same. It is alleged that plaintiff Evans is the owner in fee of the real property in question, which was wrongfully sold on the 10th day of November, 1892, for the taxes of 1891, to the defendant Fall River county; that the certificate of purchase was duly assigned by said county to the defendant Thode, by whom taxes assessed and levied upon said property for the year 1892 have been paid, which, with the purchase price of the certificate and accrued costs, aggregate $127.65, exclusive of certain subsequent interest and costs, necessary to be paid in order to effect the redemption from said tax sale. There being no claim that the allegations of misconduct, irregularities, and omissions on the part of the officers of the defendant county with reference to the tax are insufficient, when considered with other averments, to constitute a cause of action in favor of Evans, unless legalized by a curative act of the legislature, to which we shall presently direct out attention, a reproduction of said complaint is in no manner essential to a determination of this appeal, and such portion thereof as is deemed important will be noticed in connection with a discussion of the law applicable thereto.

The statute relied upon to relieve appellants from the legal effect of the irregularities and omissions complained of is as follows: "That the assessment and taxation of all property within the county of Fall River, state of South Dakota, in and for the years 1889, 1890, 1891, 1892, 1893 and 1894, be and the same are hereby in all things legalized ratified and confirmed, and all acts necessary to render the assessment and taxation for the said years 1889, 1890, 1891, 1892, 1893, and 1894 legal and valid in all respects, shall be deemed to have been done as provided by law and at the times provided by law. And all taxes for said years 1889, 1890, 1891, 1892, 1893 and 1894 levied upon the assessments for the said years respectively are hereby declared to be valid liens upon the lots and parcels of land charged therewith. Provided, that this act shall not apply to nor in any way affect the action of the board of county commissioners or the county board of equalization of said county in raising the assessment of the year 1893." Laws 1895, c. 3. In order to enable interested persons to inspect the assessment roll before the meeting of the board of equalization, which must be on the third Tuesday of June in each year, the assessor must return the same to the city auditor not later than the second Tuesday of said month. At the meeting of the board of equalization "the city auditor shall act as clerk of said board, and keep an accurate record of all changes made in the valuation and of all other proceedings." The statute not only fixes the time when, but designates the place where, said board shall meet to equalize and correct the assessment roll, by increasing or diminishing the valuation placed upon property by the assessor; to fix a value and place upon and add to the assessment roll any taxable property omitted therefrom. Any person feeling aggrieved may, by himself, his agent or attorney, appear at said time and place, and apply to said board for a correction of any alleged error, and from the decision of the board of equalization he is given the right of appeal to the circuit court in the county where his property is situated. Laws 1890, c. 37, art. 10. Assuming, as we must for the purposes of this discussion, the allegations of the complaint to be true, it appears that none of the acts preceding the notice to the owner that a tax deed would issue within 60 days were entirely regular, and in substantial compliance with the statute. Moreover, it is alleged that there was no meeting of the board of equalization during the month of June, and that respondents "had no opportunity to have the aforesaid unjust, ununiform, excessive, and erroneous valuation corrected, and had no opportunity to be heard in reference thereto."

Without attempting to discuss constitutional questions which suggest themselves, and about which there may be some conflict of authority, we will pass directly to a consideration of the power of a legislature to dispense with the meeting of the board of equalization, and thereby deny a taxpayer an opportunity to be heard in the first instance, and deprive him of his right to an appeal to the courts, should he feel aggrieved by the action of said board. Every owner of taxable property is charged with notice of the time and place fixed by law for the meeting of the board of equalization, and is presumed to know the powers and duties of said board, his privilege to appear and petition for the correction of alleged errors in the listing of valuation of his property and his right to appeal from the action of the board with reference thereto. Billingshurst v. Spink Co., 5 S. D. 84, 58 N.W. 272. The law creating and defining the powers and duties of the board of equalization, by which the time and place of its annual meeting are definitely fixed, constitutes an indispensable...