Walsh v. Glessner

• Decision Date: 26 October 1931
• Docket Number: 7016
• Citation: 238 N.W. 572,59 S.D. 150
• Parties: P.J. WALSH, Appellant, v. MYRTLE M. GLESSNER, County Auditor of Sully County, and Will Spencer, County Treasurer of Sully County, Respondents.
• Court: South Dakota Supreme Court

59 S.D. 150

238 N.W. 572

P.J. WALSH, Appellant,

v.

MYRTLE M. GLESSNER, County Auditor of Sully County, and Will Spencer, County Treasurer of Sully County, Respondents. South Dakota Supreme Court Appeal from Circuit Court, Sully County, SD Hon. John F. Hughes, Judge #7016—Reversed O’Keeffe & Stephens, Pierre, SD Attorneys for Appellant. F.J. Eager, State’s Attorney, Onida, SD Clinton J. Crandall, Jr., Onida, SD Attorneys for Respondents. Opinion Filed Oct 26, 1931

CAMPBELL, J.

Facts relevant to the present controversy, as shown by the record, are as follows: While the county board of equalization of Sully county was in session in July, 1927, matters unnecessary to be here recited came to their notice, whereby they arrived at the opinion that certain live stock belonging to plaintiff (a resident of Hartford township in said Sully county) and in his possession in his home pasture (not upon the open range, cf. section 5, c. 112, Laws 1919) had been omitted from assessment. The county board of equalization undertook to place such live stock upon the assessment roll, their exact manner and method of procedure not being shown by the present record. This action of the county board of equalization was vacated and annulled by the circuit court of Sully county at the September, 1927, term for reasons and upon grounds not disclosed by the present record. Thereafter a second attempt was made to place the property believed to have been omitted upon the assessment roll in the name of plaintiff for taxation. This second attempt was made by the county auditor of Sully county, one of the present defendants, pursuant to the authority granted by chapter 110, Laws 1919. On September 27, 1927, the county auditor served notice in writing upon the plaintiff (receipt of which notice is admitted by plaintiff) reciting that the auditor had learned that said live stock (describing it) belonging to plaintiff had been omitted from the assessment roll, and informing plaintiff that there would be a hearing upon said matter at the courthouse in Onida on November 2, 1927, at 2 o’clock p. m., at which time plaintiff might appear and show cause, if any, “why this property should not be placed upon the assessment roll and the penalty added thereto as provided by law.” Plaintiff failed to appear in accordance with the requirement of the notice. On November 3, 1927, the auditor placed such property upon the assessment roll and entered a valuation therefor, together with a penalty of 50 per cent (section 6691, RC 1919), and extended the tax thereon. No further steps were taken until December 31, 1927, on which day the auditor filed in her own office a statement of the facts upon which she made such assessment and certified the assessment to the defendant county treasurer. July 3, 1928, plaintiff applied to the circuit court for writ of certiorari to review the acts of the county auditor and county treasurer in attempting to assess said property, extend the same upon the tax list and collect the tax. The writ issued in the court below and the matter thereafter duly came on for hearing, and on December 24, 1928, judgment was entered in the court below dismissing the writ, thereby, in substance, affirming the proceedings of the county officer defendants. Section 3003, RC 1919. From that judgment plaintiff has now appealed to this court.

The proceedings in certiorari brought before the circuit court the question of whether or not respondent county officers had exceeded their jurisdiction (section 2996, RC 1919), and had failed regularly to pursue the authority in them vested (section 3002 RC 1919; State ex rel American Express Co. v. State Board of Assessment and Equalization [1892] 53 NW 192). The statutory source of the authority sought to be exercised by respondent officers is chapter 110, Laws 1919, which reads as follows:

“Section 1. Whenever the County Auditor shall discover or receive credible information, or if he shall have reason to believe that any real or personal property has from any cause been omitted, in whole or in part, in the assessment of any year or number of years, he shall proceed to correct the assessment rolls and add such property thereto, with the valuation.

“Sec. 2. If the person claiming to own such property, or occupying it, or in possession thereof, resides in the county and is not present, the county auditor shall give such person notice in writing of his action in adding such property to the assessment rolls, describing it in general terms, and requiring such person to appear before him at his office at a specified time within fifteen days after giving such notice, and to show cause, if any, why such property should not be added to the assessment rolls, and if the party so notified does not appear, or if he appears and fails to show any good and sufficient cause why such assessment shall not be made, the same shall be made, and the county auditor shall charge such property and the...