Town of Valdez v. Fish

CUSHMAN, District Judge. The defendant makes no contention that he has paid the taxes or that there has been any inequality or lack of uniformity in the assessment. He does not claim them to be excessive, save in the matter of the penalty and the interest imposed. He claims no exemption, save as hereinafter noted. He in part defends on account of irregularities to be hereinafter pointed out, which he contends are shown by plaintiff’s evidence, and which he claims render void the tax. He does not claim to have been prejudiced in any material way by these alleged irregularities. Evidence was introduced that the boundaries of the town of Valdez were fixed by an order of the district court made on June 11, 1901; that thereafter, by an order of said court made the 22d day of November, 1904, nunc pro tunc as of June 11, 1901, the first order was made to extend the boundaries; that this was done upon the petition of the town of Valdez, as the same appeared in the order of June 11th, praying for the correction of the boundaries of the town to conform with the true intention of the parties to said proceeding. The order recites that it was made upon a hearing, at which evidence was offered for and against the petition; that it appeared to the satisfaction of the court that by a mutual mistake of all the parties to said matter and the court making the original order, in transcribing the field notes of the survey of the tract of land intended to be included within the boundaries of the town, an erroneous description of the boundaries appeared in said order; that the inhabitants within the extended boundary had at all times believed themselves to be included within the boundaries of the town, and had in good faith acted upon such — 432 — belief and maintained a municipal corporation in the town of Valdez. Defendant’s lot lies within the boundaries fixed by the amended order. The defendant contends that the amended order is without effect, and that his property is exempt from any town tax, but he has failed to point out wherein the order is unauthorized. After such a lapse of time, during which this order has been acquiesced in and accorded full effect by all, to now set it aside upon a collateral attack would require its invalidity to be clearly established. Nothing of this kind has been done. Plaintiff contends that it should be upheld in the imposition of the 10 per cent, penalty and 12 per cent, interest charged upon the delinquent tax on the ground of necessity, claiming that, without these added incentives, the taxes will not be promptly paid, and the town and its officers will be greatly embarrassed. These are arguments that must be addressed to Congress and not to the court. It is further contended that the provision authorizing the council to impose a penalty for nonpayment of taxes contained in the act of 1903 is still in force. An examination of the act of March 2, 1903, and that of April 28, 1904, above quoted in part, will show that the latter was intended by Congress to cover the same ground as the former, so far at least as defining the power of the town council is concerned. Subsection 1 of the paragraph of each act in question provides for the composition and rules of the town council; subsection 2 of each provides for the officers to be appointed by the council; subsection 3 of each provides for town elections; subsection 4 of each provides for the maintenance of streets, alleys, etc.; subsection 6 of the latter and 5 of the former provide for fire protection, town water, lights, etc.; subsection '7 of the latter and 6 of the former provide for the levy and collection of a poll tax; subsection 8 of the latter and 7 of the former provide for dog tax. This brings us to the section in question. Subsection 9 of the latter act provides for the levy and collection of a general tax for school and munic — 433 — ipal purposes on real and personal property. Subsections 8 and 9 of the former make such provision for a tax for municipal purposes. The act of 1903 empowers the council— “to provide for tlie assessment and levy of a general tax for municipal purposes * * * and to impose a penalty for its nonpayment,” etc. The act of 1904 empowers the council— “to assess, levy, and collect a general tax for school and municipal purposes, not to exceed 2% of the assessed valuation.” In the latter act the power to impose a penalty is omitted. It is clear that the latter act repeals the former in this particular, and that there is now no statutory authority to impose a penalty of 10 per cent, for nonpayment of taxes or interest in excess of the statutory rate allowed on all money after the same becomes due by section 255, Carter’s Codes, supra. Without statutory authority, such impositions are illegal and void. 37 Cyc. p. 1290, § 5, and cases cited, and page 1254, § B, and cases cited. The evidence showed that one Charles Hand had been appointed by the council to serve as assessor for all save one of the years named. His oath as assessor for the year 1910 was introduced, but could not be found among the records for former years. The assessment and tax rolls for the years 1904 to 1910 were kept in one book. This book was introduced in evidence. There was not written into it any of the oaths required by the council of the assessor and clerk of the board of equalization. A number of those oaths, on loose sheets of paper, were found between the leaves of the book, and one or two were pasted in the book. The witness Hand testified that his recollection was that he had made each year the oaths provided for by statute and ordinance; that the book in which the assessment and tax rolls were contained was handled a great deal by the different town officers, persons taxed, and others, and that, by reason of this, the oaths could easily have been lost. Defendant contends that the lack of the statutory oath by the assessor and the record of it renders void the tax. — 434 — It will be noted by section 6 of the act of Congress, quoted above, that this is the-general oath required of all appointed town officers: , “All officers appointed by the council shall * * * severally take an oath,” etc. The evidence showed that Charles Hand was de facto assessor at all times in question. As the same oath only is required of him as the other officers, no reason is apparent why his act should be less binding than that of other de facto officers. 37 Cyc. p. 979, § C, and cases cited. 'The want of a record of the assessor’s oath required by the ordinance to be made to the assessment roll is also relied upon by defendant as invalidating the tax. The power is given the council by statute h> “assess, levy and collect a tax.” It appears doubtful whether the council can add to the statute other requirements of its officers, failing in which the tax levy will be rendered void, especially where the defendant does not claim or show that the failure resulted to his injury. The court is of opinion that this and other requirements, for which provision is made in the ordinance, is primarily for the protection of the town and to insure the efficient, orderly dispatch of public business and not in any way for the advantage of the individual taxpayer. This would clearly appear to be the reasoning of the later cases, even where such a statutory requirement is in question. 37 Cyc., and cases cited, hote 67, p. 1062. “In such a- case in a court of chancery, the assessment and the tax levy are voidable only on condition that the party complaining shows that the omissions and defects in the tax proceedings have resulted in injustice to him and pays or offers to pay the amount which, under a just assessment, would be required of him.” Farrington v. New England Inv. Co., 1 N. D. 102, 45 N. W. 191; Wisconsin Cent. R. R. Co. v. Lincoln Co., 67 Wis. 478, 30 N. W. 619; Fifield v. Marinette County, 62 Wis. 532, 22 N. W. 705. See, also, 37 Cyc. p. 1085, § 2, and page 1086, footnote 50, and cases cited. The records introduced fail to show a notice published of the meetings of the board of equalization for certain years as — 435 — required by ordinance. The minutes of the council show that the town clerk was instructed to publish such notice in each of the years in question, except 1907 and 1908. The evidence showed that the office of the newspaper in which notices were published by the town authorities had been burned, with its contents and files, subsequent to 1908. The ordinance itself fixed the time of meeting of the board of equalization. Under that ordinance it could not be varied or shortened or extended. The council must sit as a board of equalization from 2 to 4 o’clock p. m. on the second Monday and following Tuesday and the Thursday following the third Monday in October of each year. For this and the reasons before given, it is concluded that the notice required by ordinance was given, and that a failure to give it, where no claim is made .of an excessive assessment or want of equality or uniformity-in the assessment, would not avoid the tax. 37 Cyc. pp. 1082, 1083, footnote 14, and cases cited. There was no record evidence of the assessor ever giving a notice of the filing of the assessment list required by section 6 of the act of 1904. The only evidence on this matter was that of the assessor Hand, who, upon cross-examination by the defendant’s counsel, testified that he had not given such a personal notice to those whose property was assessed; that the published notice of the filing of the assessment list with the town clerk contained in each notice of the meeting of the board of equalization was the only one given. There is no provision of the law in Alaska authorizing a reassessment of property which has escaped taxation, and the assessor is not required to give a bond to protect the town. It appears questionable whether an assessor can thus impeach his own assessment return. There is much in the rule of the civil law that no one shall be allowed to allege his own shame to commend itself, a rule at one time held in England and this country to be a part of the common law, although afterwards receded from and now being by statute adopted in a number of the states. Wigmore. on Evidence, §§ 530, 631, and citations; 37 Cyc. p. 1071, §, B, footnotes 27 and 28, and cases cited. It is not, however,. — 436 — necessary in this case to determine what, if any, weight is to be accorded such evidence. The statute provides: “He (the assessor) shall file such list and assessment as soon as completed with the clerk of the town and shall serve a notice of the filing of the same upon each person residing in the town whose property has been assessed.” The defendant did not bring himself within this provision. There was no evidence that defendant resided within the town of Valdez during the years in question. Judgment and decree will be for the plaintiff as prayed, excluding the 10 per cent, imposed as a penalty, and allowing only 8 per cent, interest from the date of delinquency.