Galusha v. Wendt

• Citation: 87 N.W. 512,114 Iowa 597
• Parties: HARRY GALUSHA, Treasurer for use of Jasper County, Iowa v. MATHILDE WENDT, Executrix of the estate of AUGUST WENDT, deceased, Appellant
• Decision Date: 12 October 1901
• Court: United States State Supreme Court of Iowa

87 N.W. 512

114 Iowa 597

HARRY GALUSHA, Treasurer for use of Jasper County, Iowa v. MATHILDE WENDT, Executrix of the estate of AUGUST WENDT, deceased, Appellant

Supreme Court of Iowa, Des Moines

October 12, 1901

Appeal from Jasper District Court.--HON. A. R. DEWEY, Judge.

ACTION by plaintiff, as treasurer of Jasper county, to recover for the use of said county against defendant, as executrix of the estate of one August Wendt, various sums of money alleged to be due as taxes on personal property omitted from assessment for the years 1895, 1896, and 1897. Defendant put in issue the right of plaintiff to maintain the action, and the truth of the allegations of fact in plaintiff's petition. The court tried the action without a jury, denying defendant's demand for a jury trial. It appeared in evidence that said August Wendt died in July, 1896, leaving a will, which was duly probated, and under which defendant was appointed executrix in October following. The inventory of the estate and the reports of the executrix, which were introduced in evidence, showed the value of the estate consisting of cash, notes, and accounts. A commissioner was appointed by the court to determine, from the evidence furnished by the inventory and reports above referred to what the taxable value of the personal property of said August Wendt was which should have been assessed for taxation in the years 1895 and 1896, and what the value of his estate was which should have been assessed for taxation in 1897. The commissioner was directed also to find the amount of indebtedness for each of these years which should be deducted from the moneys and credits in determining their assessable value. It appears from the evidence that during these years personal property was assessed in Jasper county at 50 per cent. of its real value, and the commissioner reported on this basis the assessable value for each of the years and deducted therefrom the amount shown by the assessment books to have been assessed to August Wendt and his estate for said years. The number of mills on the dollar of the levy in Jasper county for each of the said years having been shown by the evidence, the amount of the tax which should have been paid for each year was thus determined, and interest computed thereon from the date when such tax should have been paid and it was thus ascertained that $ 1,977.68 was due as taxes and judgment was entered for that amount, the sum due for each year being separately estimated. Such other facts as are necessary to the determination of particular points passed on are stated in the opinion. Defendant appeals.

Reversed.

Harrah & Myers for appellant.

E. J. Salmon and Graham & Morgan for appellee. ^[*]

OPINION

MCCLAIN, J.

This action is brought under a section of the Code which reads as follows: "Sec. 1374. When property subject to taxation is withheld, overlooked, or from any other reason is not listed or assessed, the county treasurer shall, when apprised thereof, at any time within five years from the date at which such assessment should have been made, demand of the person, firm, corporation or other party by whom the same should have been listed, or to whom it should have been assessed or of the administrator thereof, the amount the property should have been taxed in each year the same was so withheld or overlooked and not listed and assessed, together with six per cent. interest thereon from the time the taxes would have become due and payable had such property been listed and assessed, and upon failure to pay such sum within thirty days, with all accrued interest, he shall cause an action to be brought in the name of the treasurer for the use of the proper county, to be prosecuted by the county attorney, or such other person as the board of supervisors may appoint, and when such property has been fraudulently withheld from assessment, there shall be added to the sum found to be due a penalty of fifty per cent. on the amount, which shall be included in the judgment. The amount thus recovered shall be by the treasurer apportioned ratably as the taxes would have been if they had been paid according to law." This section is found first in the Code of 1897, which took effect on the first day of October of that year, and the controversy is limited to taxes which it is claimed should have been assessed and paid under the statutes in force before the present Code took effect.

I. The first question is as to whether the provisions of the section above quoted are applicable to taxes for previous years, or, more specifically, whether under that section the treasurer can proceed to collect taxes on property omitted from assessment for such previous years. Appellant contends that the language of the section does not make it retroactive, and that it cannot be so construed as to have a retroactive effect. There can be no controversy about the proposition that the courts will construe a statute as prospective only, in the absence of language indicating an intention that it shall be retrospective. Bartruff v Remey, 15 Iowa 257; Polk County v. Hierb, 37 Iowa 361; McIntosh v. Kilbourne, 37 Iowa 420; Payne v. Railroad Co., 44 Iowa 436, 438; Starr v. City of Burlington, 45 Iowa 87, 91; People v. Columbia Co. Sup'rs, 43 N.Y. 130; Inhabitants of Town of Goshen v. Inhabitants of Town of Stonington, 4 Conn. 209 (10 Am. Dec. 121); 1 Kent, Commentaries, 455. The language of the statute is presumed to refer to the date of its taking effect. City of Davenport v. Davenport & St. P. R. R. Co., 37 Iowa 624. But a well-settled exception to this rule of construction is recognized when the statute is remedial. Haskel v. City of Burlington, 30 Iowa 232; Kossuth County v. Wallace, 60 Iowa 508, 15 N.W. 305; People v. Essex Co. Sup'rs, 70 N.Y. 228, 236; People v. Spicer, 99 N.Y. 225 (1 N.E. 680); Green v. Anderson, 39 Miss. 359; Klaus v. City of Green Bay, 34 Wis. 628; 1 Kent, Commentaries, 455, and note in 14th Ed. If the statute refers to an existing condition, it is applicable, although the condition is one which has been in existence before the taking effect of the statute, and the construction gives it, therefore, a retroactive effect, notwithstanding the language of the statute is prospective only. Plum v. City of Fond du Lac, 51 Wis. 393 (8 N.W. 283); State v. Cunningham, 88 Wis. 81 (57 N.W. 1119, 59 N.W. 503); State v. Duff, 80 Wis. 13 (49 N.W. 23); Sommers v. Johnson, 4 Vt. 278 (24 Am. Dec. 604); Alston v. Alston, 114 Iowa 29, 86 N.W. 55. In determining the construction of a statute, as to whether it shall be given a retroactive effect, the court should consider whether if construed retroactively it will be unconstitutional, as impairing contract obligations or vested rights. Duncombe v. Prindle, 12 Iowa 1, 8; Thompson v. Read, 41 Iowa 48; Society v. Wheeler, 2 Gall. 105, 22 F. Cas. 756 (Fed. Cas. No. 13, 156); Twenty Per Cent. Cases, 20 Wall. 179 (22 L.Ed. 339). Of course, unless some provision of the state constitution is violated, the fact that a statute is made retroactive by express terms or by interpretation will not render it unconstitutional, save so far as contractual or vested rights are impaired. Baltimore & S. Railroad Co. v. Nesbit, 10 HOW 395, 401 (13 L.Ed. 469); Whipple v. Farrar, 3 Mich. 436 (64 Am. Dec. 99); State v. Squires, 26 Iowa 340; Haskel v. City of Burlington, 30 Iowa 232; Edworthy v. Association, 114 Iowa 220, 86 N.W. 315; Bemis v. Clark, 11 Pick. 452; Wilbur v. Gilmore, 21 Pick. 250; Biddle v. Starr, 9 Pa. 461, 467; Cairo & F. R. Co. v. Hect, 95 U.S. 168 (24 L.Ed. 423); Tennessee v. Sneed, 96 U.S. 69 (24 L.Ed. 610). The cases already cited furnish pertinent illustrations of the proposition that a remedial statute will be construed as applicable to a pre-existing and continuing condition, and that proposition has been frequently applied to statutes providing a new remedy for the enforcement of taxes already due, or for assessing property which has been omitted from taxation. State v. Pors, 107 Wis. 420 (83 N.W. 706, 51 L.R.A. 917); State v. Myers, 52 Wis. 628 (9 N.W. 777); State v. Baldwin, 62 Minn. 518, 522 (65 N.W. 80); Gager v. Prout, 48 Ohio St. 89 (26 N.E. 1013); Sellars v. Barrett, 185 Ill. 466 (57 N.E. 422); Biggins v. People, 106 Ill. 270. Irregularities or omissions in proceedings to enforce the payment of taxes may be corrected. Wade, Retroactive Laws, sections 252, 253. And the state may impose taxes for previous years to cure any such irregularities or omissions. Carpenter v. Pennsylvania, 17 HOW 456 (15 L.Ed. 127); Tallman v. City of Janesville, 17 Wis. 71; Cross v. City of Milwaukee, 19 Wis. 509; De Pauw v. City of New Albany, 22 Ind. 204; Olmstead v. Barber, 31 Minn. 256 (17 N.W. 473, 944); Hall v. Commissioners, 177 Mass. 434 (59 N.E. 68). Statutes of this kind are not unconstitutional. They impair no contractual or property rights. People v. Seymour, 16 Cal. 332 (76 Am. Dec. 521). If the provision of our Code which we are now considering relates to the collection of taxes already due, then it should, without question, be construed as applicable to taxes which were due when the Code took effect. But appellant insists that there were no taxes due from the estate of August Wendt for years prior to his death, because there had been no assessment on the property now alleged to have been omitted, and that therefore to give the Code provision a retroactive effect would be unconstitutional, because the result would be to simply create an obligation based on past and not existing facts. Klaus v. City of Green Bay, 34 Wis. 628. It is plain enough that if when the Code went into effect the estate owed nothing to the county in the way of taxes, then an obligation of the estate on account of something already omitted to be done could not be...