State ex rel. Hammer v. Vogelsang
| Decision Date | 20 June 1904 |
| Parties | THE STATE ex rel. HAMMER, Collector, v. VOGELSANG, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.
Affirmed.
George W. Lubke for appellant.
(1) The case should have been considered with reference to the statutes in force in the years from 1885 to 1890 inclusive and appellant's rights under these statutes. Section 6685, Revised Statutes 1879, provided that the assessor should call at the office, place of business or residence of every taxpayer, and require of him to make a correct statement of all taxable property owned by him, etc. And section 6686, Revised Statutes 1879, provided that upon the failure of the taxpayer, after having been so notified and furnished with a blank list, to make his return within twenty days thereafter, the assessor could then make the assessment. These two sections bear on the bills here in suit for the taxes of 1885, 1886, 1887 and 1888. Section 7535 authorized the assessor to make out the list himself if the taxpayer failed to do so in proper time, and in the manner theretofore required by the notices of the assessor. Appellant submits that the allegation of the petition in this case that the property in question "escaped assessment" for the years from 1885 to 1890 was not justified or supported by the simple production of taxbills made out years later and the certification of those bills by the collector. Appellant's evidence proved conclusively that during all these previous years he had a permanent residence in the city of St. Louis not far away from this property so that the required notice could easily have been served upon him there. "If the assessor fails to leave with the absent owner the written or printed notice required by Revised Statutes 1889, sec. 7532, or fails to leave with his family a duplicate list of the assessment as therein required, the assessment made by him on his own view or the best information he can obtain is illegal, and in such case a suit for taxes bottomed on the condition precedent that the assessor had performed his duty must fail." Cape Girardeau v. Buehrmann, 148 Mo. 198. (2) The authority relied upon by the plaintiff to validate the attempted assessment in 1896 for these earlier years was section 7562, Revised Statutes 1889. This section, in the identical words also appeared in the revision of 1899. R. S. 1899, sec. 9177. This statute violates the provisions of the Constitution of the State forbidding laws retrospective in their operation. Constitution, sec. 15, art. 2. Also that section of the Bill of Rights which declares that no person shall be deprived of life, liberty or property without due process of law. And also section 53 of article 4 of the Constitution, which forbids special legislation and requires that laws shall be uniform in their operation. (a) It is retrospective in that thereby the Legislature attempts to excuse the negligence of the assessor by authorizing him to make an assessment for all previous years without calling upon the taxpayer to make any return. Jurisdiction to make the assessment in the first place depended upon the performance by the assessor of the duty enjoined on him by the statute to call upon the property-owner for his return. Leete v. Bank, 115 Mo. 184, 141 Mo. 574; Routsong v. Wolff, 35 Mo. 174; Fry v. Kimball, 16 Mo. 9; St. Louis v Clemens, 52 Mo. 133; Ins. Co. v. Flynn, 38 Mo. 483; Gladney v. Sydnor, 172 Mo. 318. (b) It deprived appellant of due process of law, in that it authorized the assessor to put this property on the assessment book and to assess it for the previous years without any warning or notice to appellant. Turner v. Gregory, 151 Mo. 103; Cape Girardeau v. Buehrmann, 148 Mo. 198; St. Louis v. Rankin, 96 Mo. 505; Hunt v. Searcy, 167 Mo. 158; Jones v. Yore, 142 Mo. 38; Roth v. Gabberet, 123 Mo. 21; Scott v. McNeal, 154 U.S. 34. There was no evidence to show or a suggestion made that the assessor did in fact give appellant a notice of his intention to make the assessment for the back years; and as the law as framed did not require such a notice, no presumption can be indulged that the assessor gave one. Even where there is a positive legal requirement, presumption of compliance therewith is rebutted by proof of its habitual violation. Payne v. Railroad, 129 Mo. 419.
Johnson, Houts, Marlatt & Hawes for respondent.
(1) By section 9303, Revised Statutes 1899, the certified copies of the taxbills which were introduced in evidence, are made prima facie evidence to sustain the tax. This carries with it a prima facie proof of the validity of the tax, and of the performance of all conditions precedent and necessary for the validity of the taxbill. State ex rel. v. Cunningham, 153 Mo. 651; State ex rel. v. Fullerton, 143 Mo. 686. Defendant did not offer any proof whatever, nor did he attempt to prove that he had not been notified prior to the assessment in 1896, to make returns, as of that year, for the omitted years; he did make the statement that he could not remember that from 1884 to 1889 he had ever been served with any notices by the assessor. Surely it is unnecessary to argue that such evidence could not rebut the presumption raised by the statute that a public officer has complied with the law. (2) The assessments for these omitted years was, of course, made under authority of section 7562, Revised Statutes 1889. The constitutionality of this section of the statute is attacked on the ground that it is retrospective and that as it does not provide for notice to the taxpayer prior to assessment it deprives the taxpayer of his property without due process of law. (a) As to the first point, there seems to be nothing retrospective in the law. It is not a law passed for the first time in 1889, authorizing by its terms the imposition of omitted taxes for previous years. The section as it stood in the Revised Statutes of 1889 was taken verbatim from the revision of 1879, section 6709, and had been on our statute books since 1872. (b) We believe that the second question might well be excluded from this inquiry. The prima facie case made by the presentation of the taxbills was not rebutted; it was not shown that the assessor did not serve notice on the defendant to make returns for the omitted years, and the case is exactly parallel to that considered by this court in State ex rel. v. Fullerton, 143 Mo. 687. It is not violative of the constitutional guaranty of due process of law to impose a tax without previous notice, provided some opportunity is given for review and hearing subsequently. State ex rel. v. Cummings, 151 Mo. 57; State ex rel. v. Baker, 170 Mo. 199.
This is a suit by the collector of revenue of the city of St. Louis to collect taxes on certain real estate in the city for the years 1885 to 1890, both inclusive, which had been omitted from the current assessments of those years, and the omission discovered in 1896 and the assessments then made, pursuant to section 7562, Revised Statutes 1889.
The petition was in due form, the answer was a general denial and a plea that the assessor had served no notice and made no demand on the defendant to return the property for taxes during those years, and that the claim for taxes for those years is barred by the five-year statute of limitations.
The suit was filed December 16, 1901.
At the trial the plaintiff introduced in evidence the taxbills, which were in due form, and then rested. The defendant, as a witness in his own behalf, produced a deed from Washington University to himself for this land dated in 1884. He then testified that he had resided in the city from 1884 to the present, and that he had no recollection of having been served by the assessor with notices to return the property for assessment.
He was asked:
Plaintiff, in rebuttal, offered in evidence the books of the assessor's office showing that notices had been served, but on defendant's objection the evidence was not received.
Defendant asked a number of instructions to the effect, first, that under the evidence the plaintiff was not entitled to recover second, the claim was barred by the statute of limitations; third, that the statute, section 7562, ...
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