
    Warfield-Pratt-Howell Company v. Averill Grocery Company, Appellant.
    Action to Recover Taxes: invalidity of: assessment: oath of assessor. Oode, section 1865 prescribing the form of oath which the assessors shall attach to the assessment roll, is mandatory, and a failure to make and attach the oath invalidates the assessment.
    
      Appeal from Limn District Court. — Hon. H. M. Remley, Judge.
    Wednesday, January 21, 1903.
    Suit for the recovery of taxes paid on a stock of goods. The defendant appeals from judgment against it.—
    
      Reversed.
    
    
      ■ L. P. Main for appellant.
    
      Beacon <& Good for appellee.
   Ladd, J.

'The defendant was owner of a stock of goods in Cedar Rapids January 1, 1899, and up to June 1st of that year, when it delivered possession thereof to the Letts-Fletcher Company, of Marshalltown, in pursuance of an agreement entered into May 2d, previous. The latter company sold and delivered the stock remaining on hand (about two-thirds of that bought by it) to the plaintiff June 20th. The property was thus entered on the assessment book: “Averill Grocery Co. Mds., $14,000; horses, $400; vehicles, $100; money, notes, and mortgages, $1,000,” —in the latter part of June or first of July. No oath was taken by the assessor to the assessment roll, nor any certificate thereof attached to it. In October and December the proper officers of the county and city levied the annual taxes, and upon being advised by the treasurers of these municipalities that unless the taxes were paid before June 25, 1900, collection would be enforced by distress and sale, the plaintiff paid the entire amount, and in this action seeks to recover the same from defendant.

Several defenses are pleaded. One of them disposes of the case. Section 1365 of the Oode reads: ‘ ‘ Completion of Assessment. The assessment shall be completed by the first day of April, and the assessor shall attach to the assessment rolls his oath in the following form: ‘I (A'--B--), assessor of--and state of Iowa, do solemnly swear or affirm that the actual and taxable values of all property, money and credits, of' which a statement has been made and verified by the oath of the person required to list the same, is herein truly set forth in such statement; that in every case, where I have been required to ascertain the amount or value of any property, I have diligently, and by the best means in my power, endeavored to ascertain the true amount and value, and as I verily believe the actual and taxable values are set forth in the annexed return ; in no case have I knowingly omitted to demand of any person, of whom I was required to do so, a statement of items of his property which he was required by law to list, nor to administer the oath to him, unless he refused to take it, nor in any way connived at any violation or evasion of 'any of the requirements of the law in relation to the assessment oí property for taxation. Subscribed and sworn (or affirmed) to this-day of--, A. D.-, before me,-.’ ”

This statute is mandatory in form, and there is no reason to think the legislature did not intend it as such. The purpose in requiring the oath is to secure a just valuation of the property to be taxed, and it is therefore for the protection of the taxpayer. Every citizen should contri ute his equal share toward the public revenues. That share is measured by the ratio which the amount of his taxable property bears to all the other property subject to' taxation in the community. All taxation is uniform. Hence every tax payer is interested in having every other taxpayer pay his proper share of the taxes. Still greater is his interest in having his own fairly valued. “Every requisite of a statute having the semblance of benefit to the owner must be strictly complied with.” McGahen v. Carr, 6 Iowa, 330. Under the law, every taxpayer is entitled to have his property and that of others in the taxing district valued under the sanction of the oath as prescribed. The statute, being mandatory, as all statutes for the benefit of the taxpayer are, must be substantially complied with. In numerous decisions the omission to verify the assessment by the oath, certificate, or signature, when expressly exacted by the legislature, has been held to invalidate the roll. Scheiber v. Kaehler, 49 Wis. 301; McClure v. Warner, 16 Neb. 447 (20 N. W. Rep. 387); Newkirk v. Fisher, 72 Mich. 113 (40 N. W. Rep. 189); Westfall v. Preston, 49 N. Y. 449; Kelley v. Craig, 27 N. C.129; Shattuck v. Bascom, 105 N.Y. 39 (12 N. E. Rep. 283); Alger v. Curry, 38 Vt. 382; State v. Schooley, 84 Mo. 451; Painter v. Hall, 75 Ind. 208; Eaton v. Bennett (N. D.) 87 N. W. Rep. 188; 25 Am. &Eng. Enc. Law (1st Ed.) 231; 1 Desty, Taxation 585.

Of course, mere informalities, not involving a departure from’the statutory requirement, will not defeat the tax. Snell v. City of Ft. Dodge, 45 Iowa, 564; McClure v. Warner, supra; Parish v. Golden, 35 N. Y. 462; Twinting v. Finlay 55 Neb. 152 (75 N. W. Rep. 548). In the last case the evidence showed the oath not to be attached to the assessment roll, and this was held a mere irregularity, as it was presumed, in fact, to have been taken, Burlington Gaslight Co. v. City of Burlington, 101 Iowa, 458, related to a different section of the statute, and, moreover, merely held that part of the statute fixing the time of delivery of the assessment book to be directory. Directions not of the essence of the thing to be done, but having in view only its orderly and prompt performance, are usually so construed. Munn v. School Tp. of Soap Creek, 110 Iowa, 652. This section has no bearing whatever upon facilitating or expediting public business.

Appellee cites and seems to rely on authorities to the effect that equity will not lend its aid to defeat the collection of a tax unless it appears to be unequal and unjust, and an offer is made to pay siich a sum as, in justice and equity, the complainant ought to pay. Fifield v. Marinette Co. 62 Wis. 532 (22 N. W. Rep. 705); Hixon v. Oneida Co. 82 Wis. 515 (52 N. W. Rep. 445); Farrington v. Investment Co. 1 N. D. 102 (45 N. W. Rep. 191); Wood v. Helmer, 10 Neb. 65 (4 N. W. Rep. 968); Twinting v. Finlay 55 Neb. 152 (75 N. N. Rep. 548). See Conway v. Younkin, 28 Iowa, 295; Litchfield v. Hamilton Co., 40 Iowa, 66. But in these cases the distinction between an action in equity to restrain or prevent the enforcement of an alleged tax lien, and a suit at law directly involving the validity of the assessment, is clearly pointed out. The fact that the two lines of decisions run through the reports of several states, both unquestioned, indicates the want of any conflict. In the one, equity refuses to interfere unless, in good conscience, the suitor shows himself entitled to relief, while in the other, at law, relief is awarded because of the absence of a valid assessment upon which to base recovery. Even this distinction was declared unsound by the supreme court of North Dakota in Eaton v. Bennett, 87 N. W. Rep. 188 over-ruling Farrington v. Investment Co., supra, on the ground, that nothing can be said to be justly due in the absence of a valid assessment.

Our statute is specific. The oath of the assessor, carefully framed by the legislature, is exacted as a means not only to secure faithful performance of duty to the public, but to safeguard the interests of the taxpayer in the fair and just assessment of his property. We deem it essential to a valid assessment. There is some conflict in the authorities, but the great weight is in accord with our conclusion. See, contra, Moore v. Turner, 43 Ark. 243; Chesnut v. Elliott 61 Miss. 569; Odiorne v. Rand, 59 N. H. 504; Howell v. Metz, 31 N. J. Law, 365; City of Bath v. Whitmore 79 Me. 182 (9 Atl. Rep. 119). In view of our statue authorizing the assessment of omitted property by the county treasurer, the argument ab inconvenienti, on which these decisions seem mainly to rest, is largely obviated.

The assessment being invalid, it necessarily follows that no recovery should have been allowed for the taxes paid. — Reversed.  