Siberling v. Cropper

Sherwin, J. i. listing ana assessin°* omitted’personal propertyThe controlling questions in this case are whether the five-year limitation period fixed by section 1374 of the Code applies to proceedings under chapter 50, Acts 28th General Assembly, and, if so, when this preiod begins. As said in Lambe v. McCormick, 116 Iowa, 189, chapter 50 “is not in itself a complete provision 'for the assessment by the treasurer of omitted property. ” To give it any force in this respect, it must be construed either in connection with section 1398, or with section 1374, of the Code. But the former section relates alone to real property, and seems to be in itself sufficient for the purpose intended, while the latter clearly provides for reaching personal property which has been omitted from taxation; and, in the view of the writer, chapter 50, so far as applicable to this subject, was intended as an aid to said section. The treasurer [422] had no power under section 1898 to list and assess personal property, and Code, section 1374, did not give him such power in express terms, although we held in Galusha v. Wendt, 114 Iowa, 597, that he had such power for the purpose of laying the foundation for the action therein provided for. But the legislature evidently intended to remove any doubt as to this, and to provide for an independent assessment by the treasurer by enacting the later law as a supplement thereto. And it is manifest from a careful examintion of its scope and purpose that such was the intent, and that it must be construed in connection with Code, section 1374, under which the treasurer was authorized to demand, at any time within five years from the date the property should have been assessed, the-amount it should have been taxed; and, unless this was done, he could not maintain an action therefor. Section 1 of chapter 50, Acts 28th General Assembly, read in connection with section 1374, provides, by implication, for an assessment by the treasurer after proper notice; and we think this assessment must be made wit in the five-years designated in section 1374. See Jewett v. Foote, 119 Iowa, 359. 2. Same; com-31fv<fyear limitation. The language of section 1374 is that “when property subject to taxation is withheld, overlooked, or from any other cause is not listed and assessed,” the treasurer shall,. “within five years from the date at which such J assessment should have been made, demand,”' e£c> . an(j qUes£jon arises as to what “date” is meant therein. In our judgment, it must beheld to mean during the time the work was in the hands - of the assessor. He is the only one who has authority to-call upon the property owner for assistance in listing and assessing his property, and this it is the duty of the property owner to render; and, if property is withheld or overlooked, the primary cause thereof must always arise -while-the matter is under the control of the assessor. The local [423] board of review, the auditor, and the treasurer, may add property to the assessment roll, but none of them can compel the owner to appear and assist them in so doing. Hence we hold that the “date at which the assessment should have been made” means a time not later than the first Monday of April in each year, — the time provided for turning the assessment rolls over to the local board of review . And nothing contrary to this view is held in Galusha v. Wendt, supra, because no question of the kind was therein involved. 3. limitation pended. Finally, it is said that, as the property was withheld from taxation, it was eit ter a fraudulent act or a mistake, and that section 3448 of the Code applies. There are two sufficient reasons why this cannot be so. In the first place, to so hold would be to destroy absolutely the plainly expressed limitation of the statute governing all cases of this kind. In the second place, the limitation inheres in the very statue giving the treasurer power to act at all, and governs to the exclusion of any other statute of limitation. Hawley v. Griffin, (Iowa) 92 N. W. Rep. 113. We reach the conclusion that the judgment is right, and it is ai'Eirmed.