Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1901-04-22
'|AE TAX F[RRE|S hit
Importance Of Jude wade's Rul.
Ing In johnson County Court
Pointed Out.
Decision. il Sustained ~ SUI
preme Court. Means Heavy
Loss Of Taxes.
Treasg.rers Have No Right to
Assess Property..Textof
the Decision.
'pecial to Times- Republicaln,,


the Johnson county court, has handed
down ruling which IL 1t stands in the
supreme court, will overthrow nearly all
the work done by the tax ferrets in the
state of Iowa. In almost every instance
the property found by the tax ferrets
has been assessed by the county treas.
lurers and this Judge Wade holds is
wrong Should his decision stand in
the supreme court the work of the fer
srets will have to be done over again
and this will mean that at least two
years taxes on the hidden property can
not be collected. The decision is count
ed one of the most important ones ever
made by a district judge. The case a;
bar was that of three holders of bonds
of the city of Iowa City, who resisted
the effort made to collect back taxes
claimed to be due. 1t was tried before
the county treasurer, who held that the
taxes should be paid and was appealed
to the district court. The ruling goes to
the bottom of the question. and If cor
rect will affect the work done and now
being done by tax ferrets in sixty coun-
ties of the state of Iowa. The ruling
Which explains itself, is as follows.
j. B. kessler vs. Cherry, treasurer
and three cases. district court of John
son county. In the foregoing appeals
from the action of the county treasurer
the first question to be determined is
Whether the county treasurer had any
power to make the assessment Il have
gone over the various statutes carefully
and find that prior to the code of 1897
the auditor was given power to make
assessments of all properties. real and
personal. which was omitted. (Mc-
Claims Code, Sec. 1929 This section is
1855 of the Code of 1887, and under this
section the supreme court held that the
auditor could make assessments not
only while The tax lists We're in his pos.
session. but at any time. 6s Iowa, ia
z Iowa, T29; So Iowa, AIS.
also find that under McClain's
Code, Sec. 1898. the treasurer had powe,
to correct assessments by assessing any
real property omitted. 1t Will be OBJ
served that his power was limited TO as
sessing real property, This section wa.
Incorporated into the Code of 1887 as
section 1898.
So that we find that under the Code
of 1897 the auditor could assess all prop
cry omitted, and the treasurer coule
assess real property omitted, after tn,
books came into his hands
In addition to this. the additiona
remedy of collection by suits was pro
vided for in Code of 1897, Sec. 1874.
So that up to an enactment of Thu
twenty-eighth general assembly 1t i!
clear and certain that the treasurer hal
no power to assess personal property
Now let us see what was done by the
twenty eighth general assembly Chap
"A was enacted as a substitute for Code
Sec. 1885. and the effect of this enact.
ment was simply to provide for motto,
and the right of appeal in case Of as
sessments by the auditor. The power q
the auditor was left as complete as be
fore
The only remaining question is, wha
vas the effect and purpose of chapte,
90, twenty-eighth general assembly. Il
will be observed that this is not provid
ed as a substitute for either section 1874
or 1898. If the treasurer had any powe,
to assess, it must be found in this chap
ter. Power to assess is an extraordinar,
power, and should clearly appear There
Is not a word in chapter so which con
fers upon the treasurer power to assess
personal property, and after studying
the matter over l have concluded tha
this enactment SO far as 1t relates to the
treasurer was intended to be supple
mentary to Code Section 1898, and wa:
intended to provide for notice and APP
peal In those cases in which the treas
urer had power to make assessments
which. as above Indicated was limited
to real property. If this provision doe.
not mean this, do not know what Il
does mean. and would say that 1t would
be void for ambiguity.
This being my construction, the
treasurer had no power to make the as
sessment, and consequently the appea
should be sustained
Before going over these statutes anc
reaching this conclusion, spent a grea
deal of time in examining the authori.
ties upon the constitutionality and con.
struction Of Section 1874: but upon care.
full examination of the statute, we car
see that Section 1874 has nothing to dc
with the case II before the enactment
of Chap. SO. of the twenty-eighth gen
eral assembly, the treasurer had under.
personal property. do not apprehent
that any one would contend that thi.
action was legal. because under tn,
statute he had power only to assess rea
property or if he elected. he had the
power to demand payment. and upor
failure. he would have the right to brins
an action to recover the tax. interes
and penalty.
SO that the question resolves itsell
down to the proposition above discussed
whether Chapter so conferred the powe,
upon the treasurer to assess persona
property. or, In other words, whether il
was intended as an addition to Section
1898. giving the treasurer the same pow.
er as to personal property as he hereto.
fore had as to real property. Not beine
able to SO construe it, the action of the
treasurer must be reversed. Exception
Enrolled order. IN. j. WADE,
Judge Of the Eighth judicial District
-----------------
THE INTERSTATE CONTEST.
Program for the Oratoricsl Assocla-
ton at Des Moines.
Special to Times Republican.
Des Moines, April 22.-The Interstate
n.otor,oal Assnciation will hold &c