Haley v. Elliott

20 Colo. 379

Opinions

Mr. Justice Elliott

delivered the opinion of the court.

This cause was first brought to this court by appeal. See Haley v. Elliott, 16 Colo. 159, where the facts and legal questions involved in the controversy are briefly stated. The appeal to this court being dismissed without prejudice, the cause was again brought here by writ of error. A motion to dismiss the writ was strenuously contested, but was finally denied (ante, p. 199), and the cause now stands for review upon the record as presented.

The evidence presented shows that Haley, plaintiff below, was the original owner of the horses in controversy, and that defendant, Elliott, bought them from the treasurer of Routt county at a tax sale. Breeze, the county treasurer, testified that he sold the horses to satisfy a tax for ,1884 due from Haley to Routt county, the tax being due and unpaid at the time of the sale.

The evidence introduced at the trial contains “an exemplification from the abstract of the assessor’s roll of Routt county, together with an exemplification of the precept or warrant issued by the board of county commissioners to the treasurer of Routt county to ¡proceed and collect the taxes for the year 1884.” Thus, it was shown, among other things, that the value of personalty assessed against Haley was $170,520; lands and improvements, $3,780; value of improvements on public lands, $800 ; total tax, $4,248.59. To these exemplifications certificates were attached as follows:

“Hahn’s Peak, Nov. 1,1884.

“To the Treasurer of Routt County, Greeting: You are hereby commanded to collect the foregoing taxes levied by state and county authorities for the year 1884 as required by law, and this shall be your warrant therefor.

“ Witness my hand and official seal this first day of November, A. D. 1884.'

“ (Seal) C. Brandegee, County Clerk.

“By I. G. Voice, Dpt.”

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“Hahn’s Peak, Colo., May 30,1887. •

“ I do hereby certify that the foregoing statement and warrant for the collection of taxes for the year A. D. 1884 is a true and correct copy of the entries made upon the tax roll, list and books of my office showing the taxes due from Ora Haley for the year A. D. 1884, in the county of Routt and state of Colorado, as appears in my office, and the warrant hereto attached is a true and correct copy of the tax warrant attached to said list, roll and book issued to me as treasurer of said county for the year A. D. 1884.

“L. H. Breeze,

“ Treasurer Routt County, Colo.”

1. The objection that the precept or warrant did not run in the name of the people, and so did not constitute “due process of law,” was disposed of on the appeal of this case. See Haley v. Elliott, 16 Colo. 159.

2. Counsel for plaintiff at the outset of his argument states and relies upon the rule that “ specially delegated power must be strictly pursued; ” and, also, that “special statutory power must be strictly pursued.” He claims that the assessment roll introduced in evidence does not comply with the form prescribed by the statute (Gen. Stats., sec. 2865). This argument would have some force were it not that the language of the statute is that the tax “ list may (not shall) be in the following form; ” and, again, in sec. 2,866, “ no informality in complying with the above requirements shall render any proceedings for the collection of taxes illegal.”

It is objected that the assessment roll does not show the name of Ora Haley in the proper column as prescribed by the statute. But sec. 2926, Gen. Stats., provides as follows : “ Omissions, errors or defects in form in any assessment list or tax roll, when it can be ascertained therefrom what was intended, may be supplied or corrected by the assessor at any time before the return of the assessment roll to the treasurer, or by the treasurer at any time after the receipt of the said roll by him.” * * *

See, also, sec. 2882, where it is said: “ The treasurer, on receiving the tax list and warrant, shall proceed to collect the tax therein levied, and the list and warrants shall be his authority and justification against any illegality in the proceedings prior to receiving the list.” * * *

'These and other provisions of our revenue laws clearly show that the rules contended for by appellant have no application in a case of this kind. These rules were purposely framed so that technical objections, without substantial merit, should not interfere with the collection of the public revenue.

3. An exemplified copy of the assessment roll of Routt county for 1884, duly certified, was offered in evidence by plaintiff. On objection, it was rejected by the court. Neither the ground of objection to such copy, nor the reason for its rejection, appears in the record. Assuming that it was improperly rejected, the error was not such as should reverse the judgment. In one respect the copy offered by plaintiff supplied the deficiency in the copy introduced by defendant; it showed the name of Haley in the proper column. The description of the lands assessed, as shown by plaintiff’s copy, was, however, fatally defective. “ Six \ sections ” was the entire description. This description might, however, be corrected at any time by the assessor or treasurer by virtue of the statute. But, whether corrected or not, the defective description of the realty did not affect the validity of the tax against the personalty. Most of the property assessed was personalty, and it will not be presumed, in the absence of evidence, that the two horses were sold to apply on other than the tax against the personalty. Grenther v. Fuller, 36 Ia. 604; Upton v. Kennedy, 36 Mich. 215; Wilson v. Seavey, 38 Vt. 221.

4. In the copy of the assessment roll offered by plaintiff the dollar mark ($) was omitted before the valuation figures. In other respects it did not differ substantially from the copy introduced by defendant. It is contended that this omission vitiated the assessment. Not so. It was just one of those omissions or informalities which the statutory provisions above quoted were designed to cure. The treasurer, as well as the assessor, was authorized to correct such errors and omissions at any time; and in view of the copy introduced, and in the absence of evidence to the contrary, we may well presume that after plaintiff’s certified copy was obtained, these omissions were corrected.

In Chickering v. Faile, Ex'r et al., 38 Ill. 342, it was held that “ assessment rolls, warrant, or other proceedings prior to the judgment for taxes are not rendered invalid or illegal by reason of the absence of a word or character to the numerals, designating the amount of the valuation or the taxes.” See, also, State v. Eureka Con. M. Co., 8 Nev. 15.

Counsel for defendant in argument have called attention to certain matters of which this court may take judicial notice, since they appear upon its records: The tax in controversy in this cause is a,gainst the same party (Ora Haley), is for the same year (1884), and for the same amount ($4,248.59) as the tax in controversy in the cases of Breeze, County Treasurer, v. Haley, 10 Colo. 5, and Breeze, County Treasurer, v. Haley, 11 Colo. 351. Counsel for plaintiff does not in his reply brief, nor at all, deny these matters. We are constrained to conclude that plaintiff has no legal or equitable ground to complain of the taxes assessed against him. As was pertinently said by Mr. Justice Elbert in the case last above cited, after reviewing for a second time the objections to this very assessment of taxes against Haley : “ The whole proceeding in this case appears to us to be an unwarranted attempt to have matters readjudicated which have already been decided against the plaintiff, and to further harass the authorities of the county, and delay the collection of its revenue.”

■ In Waddingham v. Dickson, 17 Colo. 223, Chief Justice Hayt has clearly expressed the modern doctrine upon this subject, as follows: “ The payment of taxes is a duty which property holders owe to the government. If they neglect this duty they have ho right to expect relief from the courts on account of merely technical errors on the part of the public officers, where no substantial right has been lost or impaired.” This was said in a case involving the sale of real estate for taxes. Certainly, a more stringent rule is not required in case of a tax sale of personal property.

Meritorious objections affecting substantial rights, when properly made to appear, should always be heeded; but mere hypertechnical objections should not be countenanced in the administration of justice. Such is the trend of modern legislation, and such should be the aim of judicial decisions.

The judgment of the county court will be affirmed.

Affirmed.