Martin v. Barbour

• Decision Date: 01 April 1888
• Citation: 34 F. 701
• Parties: MARTIN v. BARBOUR et al. [1]
• Court: U.S. District Court — Eastern District of Arkansas

34 F. 701

MARTIN v. BARBOUR et al. ^[1]

United States Circuit Court, E.D. Arkansas.

April, 1888

U. M. &amp G. B. Rose, for complainant.

J. M Harrell, for defendants.

CALDWELL J.

This is a proceeding under chapter 23, Mansf. Dig., to confirm a tax title to lot 5, in block 145, and other lots and lands not here in controversy, in the town of Hot Springs. The lot was sold to the state on the 25th day of May, 1885, for the taxes of 1884, and at the expiration of two years-- the period allowed by law for redemption-- it was certified to the commissioner of state lands, and immediately thereafter purchased by the plaintiff from that officer. The bill was filed in the Garland circuit court. The defendants, Frances M. Barbour, a married woman, and her infant children, Howard P. Munger, Grace E. Munger, and Robert P. Munger, by their next friend, Ormand Barbour, entered an appearance to the suit in that court, and removed the cause to this court. It is clear from the proofs that the lot belongs to Mrs Barbour, or to her and her children, unless the tax sale divested them of title. The defendants allege the tax title is void for numerous reasons.

The act of March 31, 1883, under which the tax title in judgment accrued, provides that the assessor, before entering upon the discharge of the duties of his office, shall take and subscribe the oath of office prescribed by the constitution for all officers, 'and, in addition thereto, the following oath or affirmation, which shall be indorsed upon the assessment books prior to their delivery to the assessor ' (Here follows the oath, which is comprehensive and exacting, and contains the declaration that 'all real * * * property * * * will be appraised at its actual cash value. ') Section 5661, Mansf. Dig. Section 5662 declares:

'If any person so elected fails or refuses to take the oath required in the preceding section, and file the same with the clerk of the county court of his county within the time prescribed, the office shall be declared vacant, and the clerk of the county court shall immediately notify the governor, and such vacancy shall be filled in accordance with the constitution and laws of the state.'

The defendants have shown that the oath here required is not 'indorsed upon the assessment books' for the year 1883, nor has it been found elsewhere. This proof rebuts the presumption that it was taken, and imposes upon the plaintiff the burden of proving that it was. This burden the plaintiff has not discharged, and the conclusion must be, the oath was not taken. 'Where a paper is not found, where, if in existence, it ought to be deposited or recorded, the presumption arises that no such document has ever been in existence. ' Platt v. Stewart, 10 Mich. 260; Hall v. Kellogg, 16 Mich. 135. In considering the legal effect of the failure of the assessor to take this oath, a brief reference to the legislation on this subject will be instructive. From 1846 to 1868, sections 8, 9, c. 148, Gould's Dig., were in force. These sections required the assessor, within a prescribed period, and before entering upon the duties of his office, to take the oath there set out, and vacated his office upon his failure to do so. The act of July 23, 1868, repealed these sections, and the only oath required of the assessor by that act was one to support the constitution of the United States and this state, and it rewarded the assessor for his services by giving him 'three per centum on the amount of taxes levied on his assessment. ' Subsequent acts (act April 8, 1869, Sec. 60, and act March 25, 1871, Sec. 59) required the assessor to verify his return by an oath to the effect that he had 'not appraised any lot or tract of land at less than its true value in money. ' This oath was not in harmony with the constitutional requirement that property should be taxed at its value. It afforded no protection to the land-owner, but, on the contrary, its terms conveyed a strong implication that the assessor was licensed, if not invited, to assess land for taxation at more than its value, and loud complaints were made that it was so assessed. In Radcliffe v. Scruggs, 46 Ark. 96, it was decided that the failure of the assessor to take this oath did not affect the validity of the assessment, because it was 'intended to protect the interests of the state, rather than the tax-payer; * * * and no owner of real estate could have been injured by its omission. ' From 1868 to 1883, the only oath the assessor was required to take before entering on the duties of his office was the general oath of office prescribed by the constitution for all state and county officers. Section 5105, Gantt's Dig. The same section required that he should make oath 'to his return,' according to a form given. But this latter oath could only be taken after he had completed his assessment. The act of March 31, 1883, is the result of a complete revision of the revenue laws of the state; it was doubtless intended to harmonize the law on the subject with the constitutional requirement, and correct the evil of excessive assessments that had grown up under previous legislation. The constitution requires that 'all property subject to taxation shall be taxed according to its value; that value to be ascertained in such manner as the general assembly shall direct. * * * ' Article 16, Sec. 5, Const. 1874. To carry out this provision of the constitution, the act of 1883 requires the assessor, before entering upon or discharging any of the duties of his office, to take, in addition to the general oath of office, the searching and exacting oath set out in section 5661, Mansf. Dig. A binding oath laid upon the assessor who is about to go forth to value property, that he will appraise it at its actual cash value, is probably the most usual and appropriate, if not the only, means the legislature can provide to secure the taxation of property according to its value, as required by the constitution. It is undoubtedly one of the means provided by the legislature for that purpose. The requirement is, therefore, in effect, the same as if it had been imposed by the constitution itself. The oath is more comprehensive and exacting than that required by Gould's Digest. Some of the provisions intended to preclude the assessor from exercising the duties of his office until he has taken the oath are not found in any other statute in this, nor is it believed, in any other, state. The requirement that the oath 'shall be indorsed upon the assessment books prior to their delivery to the assessor' appears first in this act.

It is the duty of the county clerk to make up the assessment book or roll of real estate in the county, showing each subdivision and the name of the owner. Section 5694, Mansf. Dig. To this assessment book the assessor simply adds his appraisement of each lot and parcel of land. This is the assessment book referred to in section 5661. This book the clerk is required to make up and deliver to the assessor on or before the first Monday in February. But by section 5661, the clerk is forbidden to deliver, and the assessor to receive, this book, until the required oath is taken; and, that there may be no misunderstanding or doubt as to whether the oath has been taken, the law requires that it shall be indorsed on the book itself. A failure to take this oath within the time prescribed, ipso facto vacates the assessor's office. Legislative ingenuity has exhausted itself in an effort to compel the assessor to take this oath or vacate his office. These provisions were enacted in the interests of property owners; and when the assessor refused to take the required oath, and the clerk, in violation of law and his duty, delivered to him the assessment book, no assessment on that book can be made the foundation of a valid tax title. If the law were otherwise, no property owner could ever hope to have his property appraised for taxation by an assessor bound by the obligations of an oath to appraise it at its value. But in this forum this question is foreclosed by the judgment of the supreme court of the United States in Parker v. Overman, 18 How. 137. That was a proceeding like the one at bar, and the tax title sought to be confirmed was held invalid because the assessor did not take the oath prescribed by section 8, c. 148, Gould's Dig., within the required time. The court say:

'The principal objection to the regularity of the sale in this case, and the only one necessary to be noticed, is that the land was not legally assessed. A legal assessment is the foundation of the authority to sell; and, if this objection be sustained, it is fatal to the deed. In order to qualify the sheriff to fulfill the duties of assessor, the statute requires that on or before the 10th day of January in each year the sheriff of each county shall make and file in the office of the clerk of the county an affidavit in the following form, etc., and if any sheriff shall neglect to file such affidavit within the time prescribed in the preceding section, his office shall be deemed vacant, and it shall be the duty of the clerk of the county court without delay to notify the governor of such vacancy. * * * The record shows that Peyton S. Bethel, the then sheriff of the county of Dallas, did not file his oath as assessor on or before the 10th of January, as required by law. He did file an oath on the 15th of March, but this was not a compliance with the law, and conferred no power on him to act as assessor. On the contrary, by his neglect to comply with the law his office of sheriff became ipso facto vacated, and any assessment made by him in that year was void, and could not be the foundation for a legal sale.'

In Moore v. Turner, 43 Ark. 243, Mr. Justice EAKIN referring to the case of Parker v....