Lappin v. Board of County Commissioners , 6 Kan. 403 ( 1870 )

The opinion of the court was delivered by

Kinsman, C. J.:

This was a proceeding commenced on the 30th of December, 1869, and concluded on the 2d of January, 1870, by the defendants, in error, to discover the personal property of the plaintiffs in error subject to taxation on the 1st day of March, 1869, and to place the same on the tax-roll. The county board decided that cei’tain property was the proper subject of taxation for the year 1869, and that the same should be placed on the-tax-roll. Prom this decision the plaintiffs in error appealed to the district court, which court affirmed the decision of the board, and that judgment of the district court is brought to this court for review.

Three grounds of error are alleged, either of which, if well taken, is fatal to the judgment of the district court. First, It is claimed that the defendants in error had no power to take the action they did in the premises at the time it was taken. Second, That the property placed on the tax-roll by the defendants in error, had no value, and was not properly a subject of taxation : Third, That if taxable, it was credits held by the plaintiffs in error on the first of March, 1869, and that their indebtedness at that time exceeded their credits, including the amount placed on the tax-roll, and that such indebtedness should have been allowed.

■i. TAx-KoLr,. Omitted propMÍted,abyboideí miscs°io¡¡eís?om" As to the first: It is claimed that “ the fiscal year is the calendar year, and for purposes of taxation all original steps for levying a tax can only be taken in 1 J ° * that year; that these steps are — the assessment, which must bo concluded before June 1st; the equalization, in July; the- levy of the tax, in September; and the making out the tax-roll, and delivering the same to the treasurer by the first of November; that when these steps are taken, and the tax-roll goes into the hands of the treasurer, it passes- entirely out of the control of the county commissioners and the cotmty clerk, and can be used but for the single purpose of receiving taxes; and that while section 65, page 1041,, General Statutes of 1868, in terms gives the-commissioners power to amend the tax-roll at any time before the final settlement with the treasurer, yet, by the other provisions of the statutes the commissioners have in fact no power to touch or change the tax-roll, and therefore have no power or authority to add to the tax-roll any property omitted by the assessor; ■ that the remedy foi‘ the omission is found in section 55 authorizing the assessor to double assess property omitted the previous year.” The argument, the outlines only of which are stated, are ingenious and plausible, but must yield to the express provision of the statute. Not only does section 65 of tho tax law provide differently, but section 55 of chapter 25, Gen. Stat., p. 226, makes it the duty of the clerk on the 11th day of January to charge up on tho -tax-roll the ten per cent, penalty on all unpaid taxes. For the time necessary to perform that duty he must have the right to use the tax-roll in the treasurer’s hands, while section 58 of the same statute makes it the duty of the clerk to place on the tax-roll any property not before assessed, and liable to taxation, and the same shall be collected as other taxes. It is obvious that this section contemplates that this may be done after the tax-roll is completed and in the hands of the treasurer. And this is also apparent from that part of the section that makes it the duty of the treasurer to inform the clerk of any omissions in the assessment. And. how would the treasurer be more likely than any one else to know of omissions, until the tax-roll came into his hands? Again, section 58 of the same chapter makes absolute provision for the delivering of the tax-roll to the county clerk for one week after the close of any treasurer’s term. These several sections abundantly show that while the treasurer is the proper custodian of the tax-roll, after he takes possession of it on the 1st day of November, ho has not the exclusive control thereof, but holds it in subordination to the great purpose of making the property of all contribute its duo share to the support of government; aud with that object in view, allows such amendments to be made to the tax-roll as the law requires. Such amendments are now made by the clerk on the suggestion of the treasurer, under section 58, chapter 25 ; or under section 65 of the tax-law, upon the decision of the commissioners. In this light the construction of section 65 is neither difficult nor obscure; and the power of the board of commissioners at the time the action was taken in this case was full and complete over the subject-matter. "We are cited to section 55 to show that if the property should be omitted by the assessor one year, it can be doubly assessed the next year; but this is a very inadequate remedy for the mistake, for if the property is personal it may in the meantime be removed from the State, and its owner with it. This section shows with the others quoted, how carefully the legislature has provided many ways to make all property-bear its share of the burden of taxation, and to indicate-the spirit in which the laws should be examined, construed, and applied.

2. Debts secxired pvop??t™real ' “xa e' The second objection to the action of the board is less-tenable, and presents no difficulty. The record shows that the plaintiffs in error held certain notes. x of Walker’s amounting to $50,000. They had let Walker have the money, and had taken-deeds from him for a large amount of land, and had given him a bond to reconvey the land tó him on payment of the notes. Neither the deeds, the notes, nor the* bond are made part of the recprd, though the deeds seem to have been read in evidence. We take them to be jusfr. what the testimony of one of the plaintiffs in error shows-them to bo, and that is, a loan, and a mortgage of land to-secure it; and therefore properly taxable. If is claimed in this place that’the value of the notes is not proved. We think otherwise. The notes showed the amount of' the indebtedness', and the large quantity of land held as security authorized the board to consider them as proven good; and we null not disturb a conclusion based on such-evidence.

3._Credits; debts, deduo This last conclusion settles the alleged ground of error,, for the legislature for some reason has seen fit to define “credits” as any demand “not secured by j-en Qn real estate,” (§ 2, tax law;) while section six provides that “ debts owing in. good faith may be deducted from the gross amount of credits;” and these-sections would not authorize a deduction in this case-' when the demand is secured by a lien on real estate.

The judgment must be affirmed.

All the Justices concurring.