American Trust Co. v. Nash

Hart, J., (after stating the facts). Section 7005, of Kirby’s Digest, provides that the clerk of the county court shall keep an accurate journal or record of the proceedings of the county board of equalization. In the case of French v. Edwards, 13 Wall. (U. S.) 506, in discussing the distinction between mandatory and directory provisions of statutes, Mr. Justice Fields, speaking for the court, said: “There are undoubtedly many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such generally are regulations designed to secure order, system, and dispatch in proceedings, and by a disregard of which the rights of parties, interested can not be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of Ms property, and by a disregard of wMch his rights might be, and generally would be, injuriously affected, they are not directory, but mandatory. They must be followed, or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise.” In the case of Torry v. Millbury, 41 Pick. (Mass.) 64, the court, in considering a statute regulating the assessment of taxes, recognized the rule laid down by the Supreme Court of the United States, and said that it is well settled that all provisions of a statute for the assessment of taxes which are intended for the security of the citizen and to enable him to know, with reasonable certainty, for what real and personal estate he is taxed are to be considered mandatory. So it seems that what the law requires to be done for the protection of the taxpayer is mandatory, and can not be regarded as directory merely. In 37 Cyc. 1107, it is said that if a statute requires the board of equalization to keep a record of its proceedings and enter thereon the action taken in particular cases, it is generally held mandatory, and a disregard of it fatal to the validity of its determination. To the same effect, see County of Hillsborough v. Londonberry, 46 N. H. 11; State Auditor v. Jackson County, 65 Ala. 142. There is no such thing as a parol assessment of taxes under our statute. The assessor is required to keep a list of both real and personal taxes and deliver the same to the county clerk. After the taxes have been equalized, the corrections .are made on the books, and they are delivered to the collector, properly certified, and are his official order and warrant in writing directing him to collect the taxes. The records delivered to him are his only legal authority to collect the taxes until the taxes are abated and he is notified of that fact. Since the assessment of taxes in the first instance is a matter of record, so should any reduction or abatement of them by the board of equalization be a matter of record. In the case of Waters-Pierce Oil Co. v. Roberts, 96 Ark. 92, it was held that the provision of our statute requiring the board of equalization to complete its work of equalizing valuations of property before the county court convened in October is mandatory, and that any action taken by the board after that date is void. This shows the necessity of requiring the board to keep a record of its proceedings, for, after it is adjourned, can it be said that the various members of the board could give verbal directions to the assessor to reduce'the taxes of any citizen, or can it be said that the members of the board could give verbal directions to the collector not to collect the taxes on the property of any citizen when the official warrant delivered to him commanded him to do so? We think not. The journal, or record, required by the statute to be kept by the county clerk is not only for evidence, but for the only evidence of the action taken. Of course, if this record should be lost or destroyed, it could be proved just as any other lost instrument or record is proved. To hold otherwise than we have held would be to place the assessment of property and the collection of taxes thereon in great confusion and uncertainty. The decree will be affirmed.