Moe v. Pratt, Sheriff

ROSSMAN, J.,

dissenting.

We need to remind ourselves that proceedings for the levy of a tax are in

invitum.

All statutes which authorize the imposition of a tax are construed strictly against the government. No tax can be assessed without clear legislative authority for its imposition. Doubts are resolved, not against the property owner, but against the government. Normally no official except the assessor possesses authority to assess a tax against real property. It is the assessor who prepares the assessment roll. The only statute which authorizes a sheriff to levy a tax is § 110-821, O. C. L. A. It confers upon that official authority to levy taxes only against items of real property which were inadvertently

‘ ‘

omitted” from the assessment roll prepared by the assessor. Section 110-821, referring to the assessment roll after it has left the hands of the board of equalization, says that if the officer who then possesses the roll discovers that an item of property “has, from any cause, been omitted, in whole or in part, * * * he is hereby invested with all of the powers of the assessor, board of equalization and county clerk”, and may add the property to the assessment roll and levy a tax. It is manifest that the power conferred is an extraordinary one. It is equally manifest that the power is to be employed only concerning property which has been “omitted.”

*341

The property in question was not omitted from the assessment roll. It was upon the assessment roll when the latter reached the board of equalization and was still there when it left the board and came into the sheriff’s hands. After the assessment roll reaches the sheriff’s office it becomes known as the tax roll. The complaint, spealdng of a time when the tax roll was in possession of the sheriff, says:

"

On or about December 16, 1943, the said assessor cancelled the purported assessment and the defendant corrected the said tax roll.” Thus it is apparent that the property was not omitted from the roll and, hence, § 110-821 does not confer authority upon the sheriff to pursue the course which he threatens to take.

For the reasons just stated I cannot concur in the decision of the majority. But there are still other reasons which appear to me to be valid.

Section 2-407, O. C. L. A., which enumerates some of the disputable presumptions, includes the following: “ (15) That official duty has been regularly performed.” The presumption just mentioned requires us to presume that when the assessor “cancelled the purported assessment” the situation warranted his action. The reason for the assessor’s action is not disclosed in the complaint, and, hence, I repeat, we must engage in the presumption that the cancellation was justified. The majority, in holding that the sheriff, acting in the four-fold capacity of clerk, sheriff, assessor and board of equalization, can disregard the assessor’s action, is evidently prepared to believe that § 110-821 authorizes the sheriff to overrule the assessor. I refuse to take that step.

Section 110-821, O. C. L. A., says:

“But before making such correction or additions,

*342

if the person claiming to own said property, or occupying it or in possession thereof, resides in the county and is not present, such officer shall give such person notice in writing of his intention to add such property to the assessment or tax roll * * * .”

The term “such officer”, of course, means any officer who attempts to impose a tax after the assessment roll has left the hands of the board of equalization. It will be observed that the words just quoted make provision for notice only to a person who "resides in the county and is not present.” No provision is made for notice to a person who does not reside in the county. Since § 110-821 undertakes to vest “such officer” with the authority of the clerk, assessor and board of equalization, and authorizes “such officer” to impose a tax after the assessment roll has been made up, notice is, of course, required by the demands of due process. Especially is this true, since without notice no one would have any basis for believing that he ought to avail himself of his right of appeal. Normally a property owner must keep himself apprised of the steps taken by the public officials in the assessment of taxes,, and to do so is not difficult because the officials act in compliance with statutory schedules. But how is an owner of property not mentioned upon the assessment roll to know if and when “such officer” will overrule the assessor and levy a tax against his property? He can acquire the information only by making daily visits to the courthouse. Let us remind ourselves that hundreds of parcels of property in every county do not appear upon the assessment roll. The absence of provision for notice is clearly an infringement upon due process.

For the reasons above stated, I respectfully dissent.