State ex rel. O'Brien v. Weaver

SMITH, J. Action, to recover from appellant the statutory penalty, prescribed' by section 2069, Pol. Code, for willfully failing and1 -refusing to deliver to1 the assessor, when called upon for that purpose, a -list of the 'taxable property required by law to be listed for taxation. The specific allegation of the complaint is that the defendant willfully failed and' refused to list the amount and value of his moneys and credits. It is conceded that defendant verified and delivered to the assessor a list of all his other property as required by law: The testimony of the assessor -is to the effect that he called upon defendant for the purpose of obtaining such list, and asked the defendant to list his moneys and credits, and that defendant refused to list such 'items. The defendant admits that the assessor asked him to list moneys, but denies that he had any moneys and denies that he was. asked to list credits. It appears from the undisputed evidence that the defendant at that time held a certificate of deposit fo'r $1,125, due in about ten months, issued to him by the Holabird State Bank, and a cer47 tifitaite of deposit for $2,150 issued to- him -by the Hyde County Bank, and .perhaps one or two other similar certificates. [1,2] The jury returned' a verdict “for the plaintiff on all the issues,” and assessed a penalty in the sum of $50. Judgment was entered upon the verdict, with costs. Appeal is from the judgment and1 order overruling motion -'for new trial. Appellant -makes numerous assignments of error, one of which is an order of the trial -court overruling* his challenge to the panel of trial jurors, on the ground that the sheriff, who participated in the-drawing of the jury, is “a party .to an action pending and for trial at the present term,” which; challenge was renewed after appellant had exhausted his peremptory challenges. Appellant relies upon Jones v. Woodwarth, 24 S. D. 583, 124 N. W. 844, Ann. Cas. 1912A, 1134. In that -case two- of the members of the -court -were inclined to- the view that the statute (section 716, Bo-1. Code) ¡authorized a challenge to the panel in a civil -case, and ¡was mandatory; two were of the view that the statute was not mandatory -in -civil cases, hut that the court possessed! ;an inherent .power to ;q|uash the entire panel because of such an irregularity in the drawing, where the sheriff was a -real and not a nominal party to the action, and if a real party, his participation in the drawing of the jury would constitute ¡an irregularity which would require the quashing’ of the panel. The fifth member of the court dissented. Thus f-o-u-r of ¡the five members of the court -concurred in 'holding that the trial court erred in refusing to quash the panel; it being conceded that the sheriff in that case was a party to- the action- in which the challenge was interposed. That -c-a-se in any view is not decisive of the question here' involved. It is conceded up-on this appeal that the sheriff, though a party to another -action pending and for trial at the term, is n’ot a -party, nominal or real, to- this action. The opinion in the Jones case was- handed down January 10, 1910. By section 1, -c. 178, Law's 1913, the Legislature -declared that no exception should be regarded, unless it clearly appears that the effect of the error complained of was prejudicial to- the party excepting. This statute in its terms is applicable to a failure to observe the requirements of a statute 'theretofore -deemed mandatory, not less -than to one deemed merely directory. It therefore becomes immaterial upon appeal whether the power to quash the panel [48] in a civil case toe founded upon section 7.16, Pol. Code, or be one inherent in the 'court. Any irregularity, unless the statute in express terms declares the effect thereof, -may not now be ground of reversal, unless it clearly appear© that the effect of the act complained of was prejudicial to the appellant. If an objection to the panel were made by an adverse party in an action wherein tire sheriff was a party and. overruled, we are of the view that prejudicial error would have, been made clearly to appear. The participation by the sheriff ;in the drawing of a panel from which jurors must be selected to try ¡his own case would be such an irregularity as would render the entire panel incompetent. The sheriff would therefore be ¡disqualified and the coroner should ©erve in his place whenever the sheriff is a “party to any suit pending in said circuit court.” In the case at bar, appellant ■does not ¡claim, and has not attempted to¡ show, that any juror who sat in the trial ¡of the case was' incompetent by reason of prejudice, bias, interest, or otherwise, ¡or that the effect of the' unlawful act of the sheriff was in any degree prejudicial. [3] Appellant’s next contention is that the assessor failed to demand, and did not demand, a listing- of credits for taxation, and that, in the absence of such- demand, he is not liable to the penalty imposed by statute. Section 2053 of the Pol. Code ¡declares that all property, both real and personal, with certain exceptions not material here, is subject to taxation, and that such property, or the value thereof, shall he entered in the list of taxable property, “in the manner prescribed in this. chapter.” By section 2055, Id., it is ¡declared that: “Personal property shall for the purposes of taxation he construed to include all good's, chattels, moneys, credits and effects1 wheresoever they may be. * * Section 2057, Id., declares that all such property subject to taxation shall be listed and assessed each year. Section 2068, Id., ■declares that: “Every person required by this article to list property shall make and deliver to the assessor when required, a statement verified by oath of all the personal property in his. possession or under his control, and which by the provisions of this article he is required to list for taxation, either as owner or holder thereof. * * * * It -s'ba.11 be the duty of the assessor to 'require all per [49] sons giving an tase lists, to sign-, date, and. deliver to them a sworn statement upon said list. * * *” Section 2076, Id., as 'amended1 by chapter 83, Laws 1911, declares: “It shall he the duty of the assessors to determine and fix the true and1 full value of all items of personal .property included1 in such statement and enter the same opposite such items respectively, so that when completed such statement shall truly and distinctly set forth.” Then follows a li'st of 30 distinct classes of personal property, in which iis included “credits” as an item of taxable property. Under these various provisions o.f the statute it is made the duty of the assessor to. demand a list or “statement” of personal property to be assessed' for taxation, and to require the owner to verify such list. But the statute nowhere requires the assessor to make a specific demand as to each of the 30 separate Classes of personal property required to he listed. The statute ■requires the taxpayer himself to list each 'and every item of taxable personal property described in the statute. It follows that the failure of the assessor to specifically demand1 that defendant list his “credits'” constitutes no defense whatever in this action, and no errors of the trial court in receiving evidence or otherwise may be predicated upon such a theory of defense. Appellant also assigns as error certain rulings of the trial court In receiving evidence tending to prove the election and qualification of the assessor, and also the election and qualifications of the state’s attorney who is authorized! and required to prosecute this action under the statute. We have carefully examined these assignments, and find in them 'nothing which could have prejudicially affected appellant’s, legal rights. A review of these separate assignments would1 serve no useful purpose, and' is therefore unnecessary. The order and judgment of the trial court are therefore affirmed.