State ex rel. Ferguson v. Moss

Norton, J. This is a proceeding by certiorari at the relation of James Eerguson to review the action of the county board of equalization of Howard county in assessing the propei-ty of relator under the provisions of "Wag Stat., sec. 34, p. 1165, for taxation. The only question pre sented by the record for our determination is the constitutionality of said section, which is as follows: Section 34. If any person shall, with iutent to defraud, deliver to any assessor a false list of his property, it .shall be the duty of the assessor to give notice in writing thereof to the said county board of equalization; and the said board shall, on receiving such notice, give notice thereof to the person who shall have furnished such false list, which notice shall specify the particulars in which said list is alleged to be false, and shall fix a time for a hearing of the matter, on which day the person aforesaid shall have the right to appear and defend against said charge; and if it appear that such person is not guilty as charged, the said board shall dismiss the matter ; but if it appear that such person is guilty as charged, it shall be the duty of said board of equalization to ascertain the true amount and value of all property of such person subject to taxation, and to tax the same as similar .property of other persons is taxed, and in addition shall, by way of penalty for furnishing such false list, treble the amount of taxes thus ascertained against such person ; and such person shall be required to pay such treble amount, and shall, in addition thereto, be liable to be punished for perjury. It is argued by counsel for relator with great plausibility and with some authoritative support, that the above section is obnoxious to those provisions of the constitution securing to every person “trial by jury,” and due process of law before being deprived of life, liberty or property. [500] The consideration of .this question involves the taxing power, and what it may lawfully do in assessing and levying taxes, and providing means for their collection. It may be observed, generally, that all taxation is imposed for the benefit of the person taxed. When imposed for general revenue, it is for protection afforded him both in his person and property. Such taxes will always become odious if they are to be borne by the honest and well disposed citizens alone, and avoided through fraudulent evasions of .the law in not returning their property for assessment, or paying the taxes when levied, by those who are willing to receive the protection of the government without paying any of the cost of conducting it or bearing their due proportion of its burdens. It was, doubtless, the recognition of this principle' which induced the enactment in question with its severe penalty for attempted evasions of the law. The validity of such enactments, we think, is sustained by the highest authority. Mr. Cooley, in his work on taxation, page 298, observes : “ Very summary remedies have been allowed in every age and country for the collection, by the government, of its revenue; they have been considered a matter of State necessity. Without them it might be possible for defeated and dissatisfied persons to cripple and possibly to break up the government by depriving it of the resources for continuing its existence, until they could be gathered in by the slow processes which are available to private parties. The invaluable principles of the common law are not supposed to be violated by a resort to summarv proceedings in these cases. Summai’y processes are not necessarily unjust. They would be so if they deprived a party of a hearing, or if they precluded the opportunity for a patient and deliberate examination of the questions upon which his rights depend before such rights could be finally concluded and cut off.” The methods which have been provided for collecting taxes under our statute, are by suit, by arrest of the person taxed, by distress of the goods and chattels, by taking [501] possession of goods and chattels till the taxes are paid, or selling them for taxes, by imposing penalties for non-payment, by forfeiting to the government the property upon or in respect to which the tax is payable, by making payment a condition to the exercise of some lawful right. “ Tax penalties are imposed for mere delinquencies, in order to hasten payment, and also as a punishment for frauds, evasions and neglect of duty. In some cases they are imposed by the taxing officers, in others they are recovered ‘by suit or indictment. When lists or statements are required to be furnished as a basis for taxation, the privilege of -being heard in abatement of the tax is sometimes taken away as a penalty upon the tax-payer- for not furnishing it. There are some cases in which a right to impose a penalty, except upon a judicial investigation by a competent court, has been denied as being the imposition of a punishment without trial. But when the penalty is imposed in the course of the proceedings to assess, and by officers who, for that purpose, exercise a quasi, judicial authority, and when the party is given an opportunity to be heard and contest his delinquency either before the assessing officer or in some form of appeal, the imposition of a penalty does not seem to be out of harmony with the general spirit of tax proceedings, and perhaps may be sustained on the same principles that support tax laws in general.” Cooley on Tax., 309, 314. The act in question conforms to the principles thus announced. It does not authorize condemnation without a hearing, but on the contrary, expressly provides that the penalty therein declared for the delivery, by the tax-payer, of a false list of his property, shall not be imposed till such tax-payer has been served with notice, which shall specify the particulars in which said list is alleged to be false, and shall fix a day for hearing the_ matter, when such tax-payer shall have the right to appear and defend against such charge. It also provides that the complaint shall be heard by a board of equalization, composed of the county court, assessor and surveyor [502] It may also be said that while an appeal is not allowed from their decision, their proceedings may be reviewed either by the circuit court or this court on certiorari, and if when the record is presented error appears from the face of it, they'may he set aside and annulled. A delinquent taxpayer, against whom a penalty has been thus adjudged may he said to have had the full benefit of “ due process of law.” The validity of the act is fully supported .by the authority above referred to, and the summary method it provides for the imposition of the penalty may be likened to those acts of the General Assembly authorizing in a summary way and without a jury, the condemnation of private property for railway and public purposes, which this court; in repeated decisions, has upheld. It not only thus finds support, but similar acts have been sustained by numerous adjudicated cases both in our own State and other States having constitutions like our own. In State ex rel. v. Auditor, 47 Mo. 29, an act imposing a penalty of ten per cent, on delinquent tax-payers, was sustained. In Butler v. Baily, 2 Bay (S. C.) 244, a law was upheld which authorized a double tax when the tax-payer did not make a proper return agreeably to the general tax act. In case of Gennin’s Exer. v. Auditor, 18 Ohio St. 534, held that when a person makes a false return of his property for taxation, a law authorizing the auditor to ascertain the true amount of the property liable to taxation, and to add fifty per centum on the amount so ascertained, was not invalid. In Boyer v. Jones, 14 Ind. 354, when the tax-payer refused to list his property, an act authorizing the addition of fifty per cent, was held to be constitutional. Held in the case of the City of New Orleans v. Cassidy, 27 La. Ann. 704, that a suit for the recovery of taxes was summary, and that such cases are not to be submitted to a jury. In the case of Gachet v. McCall, 50 Ala. 307, the court recognizes the validity of a law providing that when the assessor fails to procure from the tax-payer a list of his property, he shall ascertain the [503] amount of property liable for taxation, and assess a double tax upon the same. Acts similar in principle to the one in question have been sustained in the cases of Myers v. Park, 8 Heisk. 550; Bartlett v. Kane, 16 How. 269; Murray’s Lessee v. Hoboken Land Imp. Co., 18 How. 282, and in numerous other cases cited in defendant’s brief. We have been cited by counsel for relator to cases in which views are expressed opposite to those in the cases referred to, the most notable of which is the ease of Carson v. Commonwealth, 1 A. K. Marsh. 290. Even in that case the law imposing a treble tax on a delinquent tax-payer for making a false list of his taxable property, was not condemned, the court simply holding that the question as to whether the list furnished was false, was triable by jury, and because a jury was demanded by the tax-payer and refused, the judgment was reversed and cause remanded, to be thus tried. In the case before us no demand was made for a jury, and hence the question raised in that case is not in this, and if it were, we are of the opinion that, under the authorities and general principles governing such cases, the board of equalization could try it without the intervention of a jury. Judgment affirmed. All concur except Judge Henry, not sitting. Aeeirmed.