Hough v. Hastings

Caton, J. A great number of points were argued at the bar in the discussion of this case, but we shall confine our opinion mainly to two, which have not before been considered by this court, and which are decisive of the merits of the whole case. The oath of the town collector to his return of the delinquent list was made before the clerk of the county court, when the statute expressly required that the oath should be taken before the county treasurer or some justice of the peace. Section one hundred and sixty-five of the township organization law, requires the town collector to return a list of taxes not collected to the county treasurer, “ and on making oath before the county treasurer, or in case of his absence, before any justice of the peace, that the sums mentioned in the list remain unpaid,” etc. This statute prescribes a particular rule for this special case, and supersedes any general provision, by which it is supposed that the county clerk is authorized to administer the oath. It is mandatory and exclusive, and must be complied with, in order to make the proceeding valid and binding upon the party whose land is taxed. The circuit court found, and we think upon sufficient evidence, that the one hundred and forty-first section of the same act was not complied with. That section provides that, “ The assessor, town clerk and supervisor shall attend at the time and place specified in the notice, and on the application of any person conceiving himself aggrieved they shall review the assessment,” etc. The witness, Hose, testified that he was town clerk of the town in which the land in controversy was situated, and that he heard of no such meeting and thought he should have heard of it had such a meeting been held. That he received no notice 'to attend such a meeting and attended none. He also testified that he lived about five miles from the residence of the assessor and six miles from that of the supervisor. This proof we think sufficient to throw the responsibility upon the opposite party to show that a meeting was held by the two other members of the board of revisors, even admitting, that a meeting by two of the three officers prescribed by the law would have been sufficient. The statute prescribing such meeting is not merely directory but is imperative, as much so as that the property should be originally assessed by the assessor. It was a tribunal established by law, to which the owner of property might appeal from the assessment made by the assessor, with authority to reduce the assessment. A right to a hearing before these revisors, was granted by the law to every tax payer, and if deprived of this right he could not be bound by the assessment. The right of the owner of the land to raise objections of this character, upon the trial of the tax title, has been repeatedly settled by the decisions of this court and will not be reconsidered now. The description of the premises in the patent and deed from Dement are sufficient. The judgment of the circuit court is affirmed. Judgment affirmed.