State ex rel. Ferguson v. Moss

• Decision Date: 30 April 1879
• Citation: 69 Mo. 495
• Parties: THE STATE ex rel. FERGUSON, Appellant v. Moss.
• Court: Missouri Supreme Court

69 Mo. 495

THE STATE ex rel. FERGUSON, Appellant

v.Moss.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Howard Circuit Court.--HON. G. H. BURCKHARTT, Judge.

Waters & Winslow, Shackelford and Herndon & Herndon for appellant.

This section, so far as it seeks the enforcement of a penalty in the summary manner provided, is a palpable violation of the constitution of the United States and of this State: First, Because it deprives the accused of the right to a jury trial. Second, Because it deprives him of his property without due process of law. Third, Because it puts him upon summary trial on a criminal charge, without indictment found or presentment made, according to the forms of law, and affords him no right of appeal. Fourth, Because it fixes an arbitrary assessment upon his property, and does not tax it in proportion to its value.

1. That the constitutional right of trial by jury is and should be inviolable, no one denies; that a jury trial is guaranteed, or even intended, by the above quoted section, cannot be pretended; and that the charge is criminal in its nature, involving the liberty and reputation, as well as the property of the accused, must be conceded. The inquiry involves the question of intent by the very words used. the offense is based upon perjury and the charge is, in its very nature, criminal. Perry's petition, 16 N. H. 44. That a case is presented which entitles the accused to a jury trial seems indisputable, even upon consideration of the nature of the charge and the severity of the penalty alone. Our penal code is crowded with offenses of far less gravity than this, and yet no one has ever imagined that they could be punished otherwise than by a jury trial or its equivalent. Under the Federal tax laws, where these penalties are multiplied ad nauseam, they are only enforceable by indictment or information. U. S. v. Maxwell, 3 Dill. 275. And such seems to have been the course in the State courts. State v. Welch, 28 Mo. 600. And the general rule elsewhere. Cooley Tax., 315, note. Aside from this, the authority is direct and positive, and of a high order, that in cases like this the accused is entitled to a jury trial under the forms of law. Carson v. Commonwealth, 1 A. K. Marsh. 290; State v. Allen, 2 McCord (S. C.) 55.

2. That the property of the accused is taken to satisfy the penalty imposed by the statute is apparent, and the only question is, whether it is so taken by ““due process of law.” As to what is due process of law see Clark v. Mitchell, 64 Mo. 564.

3. The county board of equalization is constituted an appellate tribunal to determine appeals from the assessor, and to equalize the taxable property. It proceeds summarily in the exercise of its powers, and no appeal lies from its judgments. 2 Wag. Stat., (Ed. 1872) §§ 14, 20, pp. 1161, 1162. A writ of certiorari will not reach its action on the merits. Hannibal & St. Joe. R. R. Co. v. State Board, 64 Mo. 294; House v. County Court Clinton Co., 67 Mo. 522; State ex rel. v. Powers, 68 Mo. 320. Upon this tribunal, in terms no less absolute, is conferred the criminal jurisdiction provided in section 34, supra. Thus, a citizen, charged with delivering a false list of his taxable property, with intent to defraud, is arraigned before a tribunal unknown in the administration of the criminal code, put upon a summary trial without a jury, found guilty of a charge involving moral turpitude and the commission of a felony, denied the right of appeal, and his property taken to satisfy the penalty. This, we insist, is not the “judgment of his peers” guaranteed by the bill of rights. Cooley Tax., 315; State v. Foulk, 57 Mo. 461.

4. So far as section 34 provides a summary method of ascertaining and assessing the value of property fraudulently withheld it falls within the limits of the taxing power; and had the board in this case really assessed relator's property at three times its value, every presumption would have existed in favor of its action, and it might not have been successfully resisted; but when the law in terms gives the power, which is openly exercised, to treble the value after it has been ascertained, the result is treble taxation, which is not in proportion to its value. In other words, the penalty cannot constitutionally be embraced in the valuation of the property. Town, &c., v. Gunyon, 25 Wis. 271; Lott v. Hubbard, 44 Ala. 593; McCormick v. Fitch, 14 Minn. 252.

Major & Shafroth with R. B. Caples for respondent.

That part of said section which is in question, is not in conflict with the constitutional provisions securing to every citizen before being deprived of life, liberty or property “trial by jury” and “due process of law.” Penn. R. R. Co. v. Lutheran Cong.,53 Pa. St. 445; Buffalo, &c., R. R. Co. v. Ferris, 26 Texas 588; Haverhill Bridge v. Co. Com., 103 Mass. 120; Dronberger v. Reed, 11 Ind. 420; Livingston v. Mayor, 8 Wend. 85; People v. Mayor, 4 N. Y. 419; McMasters v. Commonwealth, 3 Watts 292; Byers v. Commonwealth,42 Pa. St. 89; New Orleans v. Cassidy, 27 La. Ann. 704; Pullan v. Kinsinger, 9 Am. Law Reg. 557; Carondelet v. Picot, 38 Mo. 130; Willyard v. Hamilton, 7 Ohio (pt. 2) 112; Symonds v. Cincinnati, 14 Ohio 147; Harper v. Com. of Elberton, 23 Ga. 566; Rubottom v. McClure, 4 Blackf. (Ind.) 505; Hankins v. Lawrence, 8 Blackf. (Ind.) 266; Bloodgood v. Mohawk Co., 18 Wend. 9; Baker v. Johnson, 2 Hill 342; People v. Hayden, 6 Hill 359; People v. Commissioners, 5 Denio 401; Rexford v. Knight, 15 Barb. 627; Swan v. Williams, 2 Mich. 427; Mason v. Kennebec Co., 31 Me. 215; Board Co. Com. v. Morrison, 22 Minn. 178; Ligat v. Commonwealth,19 Pa. St. 456; People v. Wells, 12 Ill. 102; Bradley v. N. Y. & N. H. Ry. Co., 21 Conn. 304; R. R. Co. v. Middlesex, 7 Met. 78; McCarrol's Lessee v. Weeks, 5 Hayw. (Tenn.) 246; Crandall v. James, 6 R. I. 144; Rubey v. Huntsman, 32 Mo. 501; State ex rel. v. Maguire, 47 Mo 35. The power to annex penalties for the perpetration of frauds in taxation, is necessarily involved in the power to impose and collect taxes. Doll v. Evans, 11 Am. Law Reg. 315; s. c., 15 Inter. Rev. Rec. 143; Butler v. Baily, 2 Bay 244; Gennin v. Auditor, 18 Ohio St. 534; Gachet v. McCall, 50 Ala. 307; Scott v. Watkins, 22 Ark. 556; Cooley on Tax., 309; Bartlett v. Kane, 16 How. 269; Murray v. Hoboken Land Imp. Co., 18 How. 282; Myers v. Park, 8 Heisk. (Tenn.) 550; Cowles v. Brittain, 2 Hawks 204; McMillan v. Anderson, 95 U. S. 37; s. c., 5 Cent. Law Jour. 445; Davidson v. New Orleans, 96 U. S. 97; s. c., 6 Cent. Law Jour. 252; State v. Welch, 28 Mo. 600; State v. Auditor, 47 Mo. 29; State v. Utter, 33 N. J. L. 183; Commissioner s v. Seabrook, 2 Strob. (S. C.) 560; Craig v. Flanagin, 21 Ark. 319; Pope v. Macon, 23 Ark. 644; Donovan v. Ins. Co., 30 Md. 155; State v. Hamilton, 5 Ind. 310; High v. Shoemaker, 22 Cal. 363; People v. Todd, 23 Cal. 181; State v. Bell, 1 Phil. (N. C.) 76; Winnisimmet Co. v. Chelsea, 6 Cush. 477; Mulligan v. Hintrager, 18 Iowa 171; Deane v. Todd, 22 Mo. 90; Colman v. Shattock, 62 N. Y. 348; Bristol v. Chicago, 22 Ill. 587; C. & R. I. Ry. Co. v. Reidy, 66 Ill. 43. Nor does this section violate the constitutional provision that “all property subject to taxation shall be taxed in proportion to its value.” Myers v. Park, 8 Heisk. (Tenn.) 550; Cooley on Tax., 124, 127.

NORTON, J.

This is a proceeding by certiorari at the relation of James Ferguson to review the action of the county board of equalization of Howard county in assessing the property of relator under the provisions of Wag. Stat., sec. 34, p. 1165, for taxation. The only question presented by the record for our determination is the constitutionality of said section, which is as follows:

Section 34. If any person shall, with intent to defraud, deliver to any assessor a false list of his property, it shall be the duty of the assessor to give notice in writing thereof to the said county board of equalization; and the said board shall, on receiving such notice, give notice thereof to the person who shall have furnished such false list, which notice shall specify the particulars in which said list is alleged to be false, and shall fix a time for a hearing of the matter, on which day the person aforesaid shall have the right to appear and defend against said charge; and if it appear that such person is not guilty as charged, the said board shall dismiss the matter; but if it appear that such person is guilty as charged, it shall be the duty of said board of equalization to ascertain the true amount and value of all property of such person subject to taxation, and to tax the same as similar property of other persons is taxed, and in addition shall, by way of penalty for furnishing such false list, treble the amount of taxes thus ascertained against such person; and such person shall be required to pay such treble amount, and shall, in addition thereto, be liable to be punished for perjury.

It is argued by counsel for relator with great plausibility and with some authoritative support, that the above section is obnoxious to those provisions of the constitution securing to every person “trial by jury,” and due process of law before being deprived of life, liberty or property. The consideration of this question involves the taxing power, and what it may lawfully do in assessing and levying taxes, and providing means for their collection. It may be observed, generally, that all taxation is imposed for the benefit of the person taxed. When imposed for general revenue, it is for protection afforded him both in his person and property. Such taxes will always become odious if they are to be borne by the honest and well disposed citizens alone, and avoided through fraudulent evasions of the law in not returning their property for assessment, or paying the taxes when levied, by those who are willing to receive the protection of the government without paying any of the cost of conducting it or bearing their due proportion of its burdens. It was,...