The Board of County Commissioners of The County of Douglas v. Lane

• Decision Date: 08 June 1907
• Docket Number: 14,939
• Citation: 76 Kan. 12,90 P. 1092
• Parties: THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOUGLAS v. HANNAH LANE
• Court: Kansas Supreme Court

90 P. 1092

76 Kan. 12

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOUGLAS v. HANNAH LANE

No. 14,939

Supreme Court of Kansas

June 8, 1907

Decided January, 1907.

Error from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAXATION--Correction of Assessor's Returns--Authority of County Clerk. The power given to the county clerk by section 1669 of the General Statutes of 1901 to assess personal property overlooked by the assessor is no more extensive than that granted by section 7599, which authorizes the county clerk or board of commissioners, upon notice to the property owner, to correct the assessor's returns at any time before the final settlement with the county treasurer.

2. TAXATION--Property Wrongfully Omitted from Tax-rolls of Previous Years. In view of the fact that the statute provides in express terms that where real estate has escaped taxation in any former year the amount so avoided shall be added to the tax of the current year, while no similar provision is made in the case of personal property, section 7599 cannot be regarded as affording means for collecting the amount of taxes that ought to have been but were not imposed in previous years, but must be construed as intended merely to authorize the county clerk or board of commissioners to add to the tax-roll of the current year personal property improperly omitted therefrom.

3. TAXATION--Void Proceeding to Tax Personalty Improperly Omitted in Former Years. Where under color of sections 1669 and 7599 the county clerk and board of commissioners attempt to charge a person with the amount of tax which ought to have been but was not assessed against him in a former year on account of personal property then owned by him, such proceeding is wholly void.

4. TAXATION--Recovery of Money Paid under Protest. One who, to avoid the seizure and sale of his property under a tax warrant which is void because it is based upon such a proceeding, pays the amount of such charge may recover it in a proper action, notwithstanding his fault in failing to make a full statement of his taxable property in the previous year, and notwithstanding he has never discharged his moral obligation to contribute in proportion to his means to defray the public expenses of that year.

M. A Gorrill, and Thomas Harley, for plaintiff in error.

W. B. Brownell, and J. E. Riggs, for defendant in error.

OPINION

MASON, J.:

Hannah Lane was a resident of Douglas county from 1898 to 1902. During that time she was the owner of certain mortgages which she did not include in her statements of taxable property made to the assessor, and upon which she paid no taxes. On October 27, 1903, the county clerk, upon notice to her, undertook to charge her with a tax, on account of her ownership of such mortgages, for each of the years 1898, 1899, 1900, 1901, and 1902, the amounts being fixed by estimating the value by the usual methods and applying the rate for the appropriate year. A tax warrant was issued, and to avoid the seizure and sale of her property Mrs. Lane paid the amount charged against her, and then brought an action against the county to recover it. The case was submitted upon an agreed statement of facts. Judgment was given for the plaintiff, and the defendant prosecutes error.

Only two questions are presented: (1) Had the clerk statutory authority to impose the tax? (2) If not, was the plaintiff precluded from recovering by the fact that the amount wrongfully taken from her was only what would have been rightfully charged against her if she had in former years made correct returns of her property to the assessor? The authority of the county clerk must be found, if at all, in section 1669 or section 7599 of the General Statutes of 1901, reading respectively as follow:

"It shall be the duty of the county clerk to assess, at a fair value, the property of any person liable to pay taxes which the county assessor has failed to assess, and to place the same on the tax-roll, and the county treasurer shall collect the taxes on the same as in other cases; and it shall further be the duty of the county treasurer to notify the county clerk of any such property which may come to his knowledge, and the county clerk, for the purpose of assessing the same, is authorized to administer oaths to the owner of such property, or to any other person, touching the value of the same; but the county clerk is not required to see such property in person."

"The county clerk, or board of county commissioners, if he or they shall have reason to believe that any person, company or corporation has given to the assessor a false statement or has made no statement whatever of his personal property, money, credits, investments in bonds, stocks, joint-stock companies, corporations or otherwise, and that the assessor has not returned the full amount required to be listed in his city or township, or has omitted any personal property, moneys, credits, investments in bonds, stocks, joint-stock companies, corporations or otherwise, or has undervalued the same, which are by law subject to taxation, shall proceed at any time before the final settlement with the county treasurer to correct the returns of the assessor, and to charge such person, company or corporation on the tax-roll with the proper amount of taxes; to enable him to do which, he is hereby authorized and empowered to issue compulsory process, and require the attendance of any person or persons whom he may suppose to have a knowledge of the value of such articles of personal property, moneys, credits, investments in bonds, stocks, joint-stock companies, corporations or otherwise, and examine such person or persons on oath or affirmation in relation to the statement or returns. And it shall be the duty of the said clerk in all such cases to give at least five days' notice to such person, company or corporation by the sheriff leaving a copy of the notice with the person, if he resides in the county; and if the person does not reside in the county, then by putting a copy of said notice in the post-office, properly directed to said person, and, if a company or corporation, by leaving a copy of the notice at the nearest and usual place of business of said company or corporation, before entering the said increased valuation on the tax-roll, that the said person, company or corporation may have an opportunity of showing that the statement or return to the assessor was correct. And if any person who may be summoned to appear before the clerk for examination as provided in this section shall wilfully fail to appear, or, appearing, shall refuse to answer any question or questions propounded to him concerning the subject of such examination, such person shall be deemed guilty of a misdemeanor, and upon conviction thereof before a court of competent jurisdiction shall be fined in a sum not exceeding fifty dollars, and by imprisonment in the county jail not exceeding ninety days, or by both such fine and imprisonment. And the county clerk shall in all such cases file in his office a statement of the facts or evidence on which he made the correction, but he shall in no case reduce the amount returned by the assessor."

The plaintiff claims that section 1669 is obsolete, and that by reason of the words here italicized no action can be taken under section 7599 after the final settlement with the treasurer, which takes place at the October meeting of the board of county commissioners. (Gen. Stat. 1901, § 1684.) The defendant contends that the time limitation is not mandatory and does...