The record-union., 1898-12-24

The People of the State of CALIFORNIA,
plaintiff and appellant, VS.: Natlohdi ~ pam rnA
S6oadeot S6 D. .; NILS sas M Co s defendant anu
This action was brought to recover
taxes assessed to respondent, nationai
banking association, organized under the
On the first Monday in March. 1895, it
hsd real property in Sacramento safs9 as
and fixtures and money on hand anu
money on special deposit.
The blank form for statement, with
demand for a list, was served on II by tne
Assessor, and it was returned with qe-
scription Of certain real estate, ana SaIeS
and fixtures valued at $4,000; me AS
SCISSOR was dissa tistied with this ana re-
turned it to- the President of the bank, N
sisting that the personal assets or the
bank We're liable to taxation. After CON
siderable conversation and discussion, dut :
they We're afterwards assessed, was stated
by the President ana Cashier, the hst
was changed by erasing the Item as TO
the safes and fixtures, and in that condl-
ton was verified and returned to the AS
SCISSOR by the Cashier. The Assessor then
proceeded without issuing any subpoena
to any other person, 70 assess 70 anu am
against the defendant. the safes ana hX-
lures valued at 5000, ana deposits 70
the amount of $500, coo. In due time the
defendant rendered the amount OF the tax
upon the real estate bat declined to pay
the tax upon the personal property, clalhle
Congress creating National Banks. as an
nstrumentality of the Federal Govern
nent
All the findings, save one, were agreed
upon by the parties 1t is not found, and
does not appear, that the Assessor con,
sidered that defendant had after demand
refused to make a statement as to It's
property, or that he made an entry to that
effect on the assessment book as authof-
lied by Section 3633 of the POLITICAL Code,
but it does appear that the Board OF
OD-
iections made by the bank to the assess
ment on the ground that the assessment
Board of Equalization had no power, to
review the same" 1t is admitted that
the bank did have the property which
was ASSESSED fo to 1t and so + mat nrh u II to
have been given in by the bank and as
sessed to it.. The refusal of the board to
consider defendants objections has not
injured it If the assessment was proper
ard would have heon roointajned
Judgment was for the defendant, and
the people appeal IRON the Judgment ana
from an order denying a new trial.
1t is contended that the assessment was
illegal for two reasons:
]. After the taxpayer mas returned 70
the Assessor his verified list, although the
Assessor knows of other property belong
ing to the taxpayer; although, in fact, the
taxpayer has had his attention called to
the matter and admits the possession. and
ownership of other property, as was the
fact in this case, still the Assessor can
not include such property in the assess,
ment without first issuing a subpoena and
holding an examination, as he is author
lied to do under Section 1852 of the Po-
litical Code.
The proposition is that an addition to
the list furnished by the taxpayer with
cut the examination renders the assess
ment void-at least as to the property
Unless the statute has given such effect
to the list this position cannot be main
tained. The general duty of the Assessor
ty or district. The law compelling the
taxpayer to furnish the list is undoubted-
ly designed to assist the Assessor in the
performance of his duties. The assess
ment is not judicial and must necessarily
be summary. All property should be as
sessed or the burden Of taXation is not
must not knowingly permit any to eseape.
Must he then when he not only is fully
informed as to the property but the tax
payer admits and states to him all the
facts in regard to it, but simply contends
that it is by law exempt, resort to this
in that case--useless proceeding. before
In many States the law does give the
verified list some effect, but I think it
has generally been held that unless the
statute provides otherwise, it does not
in any way limit the powers of the AS
SCISSOR {Welty on Assessments, 4: Cody
on Taxation, 357; Desty on Taxation, Vol.
Conclusive upon the Assessor, although it
has been held there that the Commission--
ers who revise and equalze, may add
other property. In New York the tax
payes- may make an affidavit which may
have the effect to reduce his assessment,
ard the different States. as was to have
beer. expected. have various schemes upon
the Subject In Nevada a similar law
was construed. and it was held that the
statement was merely in aid Of the As
SCISSOR and had no binding erect Get upon o1
See also Wabash s. L. and P. c. rs. John.
Son. los iii. /: Felscnthal VS.. Johnson l0i
iii, q: Nelson vs.. James To- l9i III aoE siZ; /;
The last named case is particularly pntero p1eIIo
esting upon this point. The statute there
considered was quite similar to ours, ana
at liberty to. add omitted property OF Of
which he had knowledge but was bound
by his oath so to do and II was salu
when the statute goes t oafh e4h If fhs narty
conclusive, it is merely 6. step In the pro
ceedings. to enable the Assessor to MAKE
h his district I believe this to be a cor
decision upon the subject.
The question then is, is there anything
in our statute. which will preclude the
Assessor from listing any property to the
taxpayer except such as he returns IN ms
verified list, or shall admit on eXanllna ION
on him? Tue subpoena cannot be issued
until after he has made his statement,
and the statute does not eNptessTi, ia aus99
the Issuance of the subpoena and the eX-
animation of the taxpayer under oatn'
even if further property should i oe f-nae- alsr
the statute, and upon the stricti lurlS
theory of construction. so much INSISTED
upon by respondent, the Assessor mas +ho no
issuance of the subpoena and after the
examina tion than he had before; ana,
although the existence OF other taNahhle ~
property may have been admitted by the
4axpayer IT must be observed, alSo that
this construction makes the taxpayer the
Judge of what property Is exempt iroiii
taxation Quoad the Assessor.
Counsel for respondent say it must be
Intended that upon the discovery OF otner
property upon such eXanlnatoh lhe As.
SCISSOR should list it. To this | agree, nut
7 know of no reason why property so dis
covered should be listed and property DIS
covered through the unsWorh. a@drnlsslolIs @
of the taxpayer should not be. The pro-
vision as to the examination is but an
aid to the Assessor to enable him TO per,
form the duty enjoined upon nm ana
which upon making his return ne IS COM
nelied to state under oath, that he has
done. (3652 Pol. G ,oa
In respect to this reliance IS PLACED
which. it is contended, holds, that the AS
SCISSOR cannot add to a list returned by
TAXPAYER. unless he has been so SUD
penaed and examined. I do not so under
stand that opinion. It holds that the
Assessor cannot make an assessment
which shall not be revisable by the Board
OF E1Qua1Zatl0n uHjtSS th,s te1"pu u
refused to make out his list under oath
or has refused to comply with some other
requirement. Of the law:
ProDerly understood. I have no quarrel
with that decision. Unless there has been
some dereliction on the Part of the taN-
payer, unless he has failed to render the
assistance to the Assessor which the
law requires him to render. he cannon
be subjected TO the nenalty Of a non,
revisable assessment. This. | think. IS al
that was decided unor this matter in
wise vs. Crawford 1t denominates sucn
an assessment. .'an arbitrary, asses
ment" The term is not found IN tne
-sa.-,+- kc ,,rad IN the oDinion il evil