the

troversy, and that defendant, Elliott, bought them from the treasurer of Routt county at a tax sale. Breeze, the county treasurer, testified that he sold the horses to satisfy a tax for 1884 due from Haley to Routt county, tax being due and unpaid at the time of the sale. The evidence introduced at the trial contains "an exemplification from the abstract of the assessor's roll of Routt county, together with an exemplification of the precept or warrant issued by the board of county commissioners to the treasurer of Routt county to proceed and collect the taxes for the year 1884." Thus, it was shown, among other things, that the value of personalty assessed aganst Haley was $170,520; lands and improvements, $3,780; value of improvements on public lands, $800; total tax, $4,248.59. To these exemplifications certificates were attached as follows:

"State of Colorado, County of Routt-ss.: Hahn's Peak, Nov. 1, 1884. To the Treasurer of Routt County-Greeting: You are hereby commanded to collect the foregoing taxes levied by state and county authorities for the year 1884, as required by law, and this shall be your warrant therefor. Witness my hand and official seal, this first day of November, A. D. 1884. [Seal.] C. Brandegee, County Clerk, by I. G. Voice, Dpt."

"Office of the County Treasurer of Routt County, Colorado. Hahn's Peak, Colo., May 30, 1887. I do hereby certify that the foregoing statement and warrant for the collection of taxes for the year A. D. 1884 is a true and correct copy of the entries made upon the tax-roll list and books of my office, showing the taxes due from Ora Haley for the year A. D. 1884 in the county of Routt and state of Colorado, as appears in my office; and the warrant hereto attached is a true and correct copy of the tax warrant attached to said list roll and book issued to me, as treasurer of said county, for the year A. D. 1884. L. B. Breeze, Treasurer Routt County, Colo."

1. The objection that the precept or warrant did not run in the name of the people, and so did not constitute "due process of law," was disposed of on the appeal of this case. See Haley v. Elliott, 16 Colo. 162, 26 Pac. 559.

2. Counsel for plaintiff, at the outset of his argument, states and relies upon the rule that "specially delegated power must be strictly pursued"; and, also, that "special statutory power must be strictly pursued." He claims that the assessment roll introduced in evidence does not comply with the form prescribed by the statute. Gen. St. § 2865. This argument would have some force were it not that the language of the statute is that the tax "list may [not "shall"] be in the following form"; and, again, in section 2866: "No informality in complying with the above requirements shall render any proceedings for the collection of taxes illegal." It is obJected that the assessment roll does not show the name of Ora Haley in the proper columu

as prescribed by the statute. But section 2926, Gen. St., provides as follows: "Omissions, errors or defects in form in any assessment list or tax roll, when it can be ascertained therefrom what was intended, may be supplied or corrected by the assessor at any time before the return of the assessment roll to the treasurer, or by the treasurer at any time after the receipt of the said roll by him." See, also, section 2882, where it is said: "The treasurer, on receiving the tax list and warrant, shall proceed to collect the tax therein levied, and the list and warrants shall be his authority and justification against any illegality in the proceedings prior to receiving the list." These and other provisions of our revenue laws clearly show that the rules contended for by appellant have no application in a case of this kind. These rules were purposely framed so that technical objections, without substantial merit, should not interfere with the collection of the public revenue.

3. An exemplified copy of the assessment roll of Routt county for 1884, duly certified, was offered in evidence by plaintiff. On objection, it was rejected by the court. Neither the ground of objection to such copy, nor the reason for its rejection, appears in the record. Assuming that it was improperly rejected, the error was not such as should reverse the judgment. In one respect the copy offered by plaintiff supplied the deficiency in the copy introduced by defendant; it showed the name of Haley in the proper column. The description of the lands assessed, as shown by plaintiff's copy, was, however, fatally defective. "Six 4 sections" was the entire description. This description might, however, be corrected at any time by the assessor or treasurer by virtue of the statute. But, whether corrected or not, the defective description of the realty did not affect the validity of the tax against the personalty. Most of the property assessed was personalty; and it will not be presumed, in the absence of evidence, that the two horses were sold to apply on other than the tax against the personalty. Genther v. Fuller, 36 Iowa, 604; Upton v. Kennedy, 36 Mich. 215; Wilson v. Seavey, 38 Vt. 221.

4. In the copy of the assessment roll offered by plaintiff the dollar mark ($) was omitted before the valuation figures. In other respects it did not differ substantially from the copy introduced by defendant. It is contended that this omission vitiated the assessment. Not so. It was just one of those omissions or informalities which the statutory provisions above quoted were designed to cure. The treasurer, as well as the assessor, was authorized to correct such errors and omissions at any time; and in view of the copy introduced, and in the absence of evidence to the contrary, we may well presume that, after plaintiff's certified copy was obtained, these omissions were corrected. In Chickering v. Failes, 38 Ill. 342,

it was held that "assessment rolls, warrant, or other proceedings prior to the judgment for taxes are not rendered invalid or illegal by reason of the absence of a word or character to the numerals, designating the amount of the valuation or the taxes." See, also, State v. Eureka Con. Min. Co., 8 Nev. 15.

Counsel for defendant, in argument, have called attention to certain matters of which this court may take judicial notice, since they appear upon its records: The tax in controversy in this cause is against the same party (Ora Haley), is for the same year (1884), and for the same amount ($4,248.59), as the tax 'in controversy in the cases of Breeze v. Haley, 10 Colo. 5, 13 Pac. 913. and Id., 11 Colo. 351, 18 Pac. 551. Counsel for plaintiff does not in his reply brief, nor at all, deny these matters. We are constrained to conclude that plaintiff has no legal or equitable ground to complain of the taxes assessed against him. As was pertinently said by Mr. Justice Elbert in the case last above cited, after reviewing for a second time the objections to this very assessment of taxes against Haley: "The whole proceeding in this case appears to us to be an unwarranted attempt to have matters readjudicated which have already been decided against the plaintiff, and to further harass the authorities of the county, and delay the collection of its revenue." In Waddingham v. Dickson, 17 Colo. 223, 20 Pac. 177, Chief Justice Hayt has clearly expressed the modern doctrine upon this subject, as follows: "The payment of taxes is a duty which property holders owe to the government. If they neglect this duty, they have no right to expect relief from the courts on account of merely technical errors on the part of the public officers, where no substantial right has been lost or impaired." This was said in a case involving the sale of real estate for taxes. Certainly, a more stringent rule is not required in case of a tax sale of personal property. Meritorious objections affecting substantial rights, when properly made to appear, should always be heeded; but mere hypertechnical objections should not be countenanced in the administration of justice. Such is the trend of modern legislation, and such should be the aim of judicial decisions.

The judgment of the county court will be affirmed. Affirmed.

On Rehearing.

(Jan. 7, 1895.)

1. Further argument was allowed before the court upon petition for rehearing. It was again urged that the omission of the dollar marks in the assessment roll invalidated the assessment, and that in the former opinion sufficient consideration was not given to this point. This court examines with care the briefs and arguments of counsel, but cannot undertake that all authorities

cited shall be discussed or set forth in the opinion filed. Lawrence v. Fast, 20 Ill. 338, fairly states the rule contended for by counsel for appellant, though Mr. Justice Breese (the court consisting of three judges only) dissented, in the following terse language: "It is certain to every ordinary intent that the figures in the proper columns indicated cents, or dollars and cents. The most common man would so understand them, and could not be misled by them. The figures "2 48' must of necessity mean two dollars and forty-eight cents, or two hundred and fortyeight cents, which is the same. Mills are never expressed in that way. Courts of justice must draw the same conclusions from the same facts which the mass of the community would draw from them. Taking the columns with their headings, and the figures in them as they stand, can any reasonable man doubt that dollars and cents, or cents only, were intended? I think not. It is not certainty to every intent in particular that is required in such proceedings, but common certainty." In Elston v. Kennicott, 46 Ill. 187, as well as in Chickering v. Failes, 38 Ill. 342, cited in our former opinion, it was held that "the want of the dollar mark in the assessment roll, to designate the amount of the valuation or the taxes, will not render the assessment, or the collector's warrant, invalid and illegal." It is claimed that the Lawrence-Fast Case is not overruled by the Chickering and Elston Cases, because issues of a different nature were involved; but the latter cases certainly militate strongly against the correctness of the former. In People v. San Francisco Sav. Union, 31 Cal. 132, the earlier Illinois cases were followed. In Sawyer v. Gleason, 59 N. H. 140, it was held that "figures separated by a decimal point, in the ordinary method of writing dollars and cents, with no other mark, are understood in the sense indicated by the point, the context, and the subject-matter." State v. Eureka Con. Min. Co., 8 Nev. 15, seems to have been thoroughly considered, and the court held: "In an action to recover delinquent taxes on the net proceeds of mines, where plaintiff was allowed to introduce in evidence the original assessment roll, notwithstanding there was no dollar mark attached to the figures purporting to indicate the amount of the tax due or assessed, and it was objected to on that ground, held, that the fair and reasonable presumption, in the absence of anything to show to the contrary, was that the figures, disposed in perpendicular columns in the form prescribed by statute, indicated dollars and cents, and that the admission of the roll in evidence was not error." See, also, Jenkins v. McTigue, 22 Fed. 148; City of New Orleans v. Day, 29 La. Ann. 417; Chamberlain v. Taylor, 36 Hun, 24, and cases there cited.

2. It is again insisted that the original assessment roll made by the county assessor

is the primary and exclusive evidence by which the legality of the tax complained of should have been tested. As indicated in our former opinion, such roll, or a duly-certified copy thereof, is competent evidence to a certain extent in case the validity of a tax is material to the issue. But such evidence is not necessarily exclusive or conclusive of the validity of the tax. The original assessor's roll, as it leaves his hands, does not show any tax at all, but only the property listed and its valuation, and these are subject to changes, as our revenue laws clearly show. When this controversy arose, it was necessary to consider several statutory provisions, and also other records than those of the assessor, in order to determine whether a tax in a given case was legal or illegal. The assessment and levy of taxes were not the work of a single officer, but the combined work of several. The work commenced with the lists returned to or made by the county assessor, but it might end with amendments and additions thereto made by the county treasurer, as well as by the taxes extended thereon by the county clerk. The following references are to General Statutes of 1883, as that volume contains the laws in force when this controversy arose: Passing by those sections relating to the listing of property for taxation, it will be found that the assessor was required to make out and deliver to the county clerk annually

an

assessment book or roll containing in tabular form names of persons, property, and valuation thereof as listed, etc. Section 2856. The assessor and clerk were required to carefully compare the various items in the assessment book at the time it was returned to the county clerk, and to promptly correct all errors and omissions found therein. Section 2858.

Section 2875 provided that the county commissioners, as a board of equalization, should have power to supply omissions in the assessment roll, and, for the purpose of equalizing the same, might increase, diminish, or otherwise alter or correct any assessment or valuation. By section 2871 it was provided that the commissioners should, by order entered of record among their proceedings, levy the requisite taxes for the year for school and other county purposes as required by law. As soon as practicable after the taxes were levied, the county clerk was required to make out a tax list, in a book provided by the county, in alphabetical order, with columns for names of owners, description and value of real estate, value of personal property, total amount of taxes, etc. The statute prescribed the form in which such tax list might be made. Section 2865. Section 2866 provided that the clerk should attach to the tax list his warrant, under his hand and official seal, requiring the treasurer to collect the taxes therein levied according to law; and, further, that no informality in complying with the above requirements should render any proceedings for the collection of taxes illegal;

that the clerk should deliver such list to the treasurer by the 1st day of November, or as soon thereafter as practicable; and that such list should be sufficient authority for the treasurer to collect all taxes contained therein. Section 2886 provided that, if on the assessment roll or tax list there should be any error in the name of a person taxed, the name might be changed, and the tax collected from the person intended, if he were taxable and could be identified by the treasurer or assessor. Section 2922 provided that in all entries required to be made by the assessor, county clerk, treasurer, or other officer, in lists, books, rolls, certificates, receipts, deeds, or notices, letters, figures, and abbreviations might be used to denote townships, ranges, sections, parts of sections, lots, blocks, dates, and amounts of taxes, interest, penalties, and costs. Section 2837 was such a broad statute of jeo fails in favor of the validity of every assessment made against property subject to taxation that we hesitate to quote it; and no opinion is ventured as to its proper construction in a case where its application may become necessary. It provided, among other things, that "no irregularity, error or omissions in the assessment of any property, or in the levying of any tax, shall affect in any manner the legality of any taxes levied thereon." The act of 1889, p. 321 (Mills' Ann. St. § 3790), is only slightly different. Section 2926 authorized the treasurer, at any time after the assessment list or tax roll was received by him, to correct any omissions, errors, or defects in form therein when it could be ascertained therefrom what was intended. Section 2908 authorized the treasurer to assess and tax property omitted from the tax list, and further provided that the taxes so levied and assessed by the treasurer should be as valid for all purposes as if the assessment had been made by the assessor. The treasurer's certificate of the amount of taxes levied upon personal property, and that the same has not been paid, was made prima facie evidence that the amount claimed was due and unpaid in any suit brought by the county treasurer to recover such tax of the person so taxed. Section 2819. By section 2950 it was further provided that entries made in the county treasurer's books, the assessment rolls, and the warrants thereto attached, or a certified copy thereof, should be prima facie evidence in all judicial proceedings and in all courts in this state. So the Code of Civil Procedure (section 422) provides that a copy of any record or document or paper in the custody of a public officer in this state, duly certified under his official seal, may be read in evidence in an action or proceeding in the courts of this state, in the like manner and with the like effect as the original could be, if produced.

The foregoing is no new rule of evidence. It is practically the common-law rule in respect to official registers and other public writings

required by law to be kept by public officers. 1 Greenl. Ev. § 483 et seq.; 1 Whart. Ev. § 640 et seq. The case of Ronkendorf v. Taylor's Lessee, 4 Pet. 358, by the supreme court of the United States, is clearly in point. The following is from the opinion of the court delivered by Mr. Justice McLean: "Did the court below err in requiring the original assessment lists to be produced? These lists, under the law, were not conclusive on the corporation, or on the person whose property was assessed. They were laid before the court of appeal for their correction and sanction, and they were then passed to the regis ter. If the assessment was not conclusive, or, indeed, binding on either party, until sanctioned by the board of appeal, then, without this sanction, the assessment lists could not be received as evidence. These lists being handed over to the register, the law requires him to furnish a tax book to the collector, from the original assessment lists on file in his office, according to a prescribed form. This was done in the case under consideration, and is not this book evidence? It was made out and arranged by an officer, in pursuance of a duty expressly enjoined by law. This not only makes the tax book evidence, but the best evidence which can be given of the facts it contains. In this book are stated the name of the owner of the property, and his residence, if known; the number of the square; the number of the lot; the square feet it contains; the rate of assessment; the valuation; and the amount of the tax. Only a part of these appear upon the assessment list."

. From the foregoing survey of the statutes, as they existed when this controversy arose, it appears that the "tax list," the "tax roll," the "tax warrant," as it was variously termed in the revenue act, might comprise the work of several officials. The board of equalization might change the valuations; and, after it was delivered to the treasurer, he might correct and add thereto when necessary. The statute made the treasurer's books,—that is, the assessment rolls and the warrants thereto attached,-after the same were thus made up and in his hands, competent evidence of the taxes assessed and levied by authority of law. It is true, the original papers in the hands of the assessor might also have been resorted to for certain purposes. The effect of such evidence in case of substantial conflict between the books of the treasurer and the rolls of the assessor is not involved in the present case.

No further discussion is necessary to show that the exemplification of the abstract of the assessment roll, together with an exemplification of the tax warrant, certified to by the treasurer of Routt county, was proper evidence of the validity of the tax in controversy. By such evidence a prima facie defense was established. The assessment roll, duly certified by the county clerk, was also competent evidence to a certain

extent, but was not necessary to the maintenance of the defense. The assessment roll offered by plaintiff cannot be considered as evidence in this case, because not actually admitted, but it may and must be considered for the purpose of determining its tendency in case it had been admitted; and since it appears that it could not, if admitted, have had any effect against the defendant's evidence, its exclusion must be held to have been harmless error. It was properly admissible in rebuttal, but would have had no effect if it had been admitted in rebuttal, because it does not, considering our statutes, show any such informality, error, or omission as would have tended to invalidate the tax in controversy or to impeach the evidence (the tax roll or warrant) already before the court. The property and figures in the abstract of the assessment roll certified to by the treasurer agree with the assessor's roll as far as they go, and are clearly a valid assessment in all substantial respects. A brief comparison of the assessor's roll and valuations with the tax warrant certified to by the treasurer from the "tax-roll list and books" in his office shows that no injustice was done to plaintiff. The assessor's roll shows personal property listed and valued as follows:

165 horses

2 mules 8200 cattle

3 carriages

Merchandise

.6845

100

.163000

200

200

Amount of all (other) property..... 175 The figures by which these several valuations were expressed were not separated by any unequal spaces, nor was there any point or other mark to indicate that they were intended to represent other than dollars, the ordinary units of value in our currency. These figures aggregate 170,520, and this sum, with the dollar mark prefixed, exactly agrees with the "value of personalty" as shown by the tax warrant. See former opinion. It is evident the treasurer treated the several valuations as dollars, and so supplied the omitted mark, as he well might do if from the assessor's list he could ascertain what the figures were intended to represent. Such was his express authority under the statute. In supplying such omissions, the treasurer was bound to exercise reason and sound judgment. The figures obviously represented either dollars or cents. Treating the figures as dollars, the horses were assessed at an average of a little more than $41 per head; treating the valuation as cents, they would have been valued at a little more than 41 cents per head. By the same rule the mules were valued at $50 per head. Would it have been reasonable to have valued them at 50 cents per head? So the average value of the cattle was fixed at a little less than $20 per head. Would it have been reasonable to have valued them at less than 20 cents per head?

We think the treasurer was warranted in supplying the dollar mark, as he did. In view of the statutes conferring power upon the treasurer to correct errors and omissions, and further providing that irregularities and informalities shall not render the assessment or levy of taxes illegal, it would be trifling with the laws of this state to interfere with the assessment and levy in this case. We are bound, under the evidence produced, to conclude that the assessment and levy of taxes as shown by the treasurer's books are correct; and the admission of the assessor's roll would not, in this case, as we have seen, have changed this conclusion. The treasurer's books were the final repository of the work of assessment and levy of taxes in this state, and the same were competent evidence, prima facie, of the taxes so levied.

It was urged in argument that the rule laid down in Morris v. Bank, 17 Colo. 231, 29 Pac. 802, is variant from the views expressed in this case. But there is a clear distinction between the cases. In the Morris Case the tax was not declared invalid. It was the notice of the tax sale that was declared invalid; and thereupon it was held that an action to remove a cloud from the title to the land sold for taxes might be maintained upon the repayment to the purchaser of the taxes with interest, etc. The right to collect the government revenue was not at all interfered with by the decision in the Morris Case, though the original owner was relieved against the sacrifice of a large amount of land for a very small amount of taxes, because the notice of the tax sale was not in substantial compliance with the statute.

This case presents a subject that has been prolific of much legal and judicial controversy; but we forbear further discussion, as it is manifest that a different conclusion cannot be justly reached if the laws of the state be faithfully considered and applied. The petition for a rehearing must be denied. Rehearing denied.

(54 Kan. 599)

MCCLELLAND, Sheriff, v. CRAGUN. (Supreme Court of Kansas. Jan. 5, 1895.) APPEAL-JURISDICTIONAL AMOUNT-CORPORATIONS -EXECUTION AGAINST STOCKHOLDER-NOTICE.

1. Where suit is brought to enjoin the levy of an execution for $100, on which clerk's costs, amounting to $1.60, have accrued, and are indorsed, the amount in controversy is more than $100, exclusive of costs, and this court has jurisdiction on a petition in error to review the case. The word "costs," in paragraph 4642 of the General Statutes of 1889, refers only to the costs in the action or proceeding brought to this court for review.

2. A motion made under paragraph 1192 of the General Statutes of 1889 for execution against a stockholder of a corporation can only be made in the court where the judgment against the corporation was rendered, and from which execution on such judgment might issue.

3. Notice of a motion for execution in such

case may be served on a stockholder in any county in this state.

4. A notice of a motion for execution against a stockholder, which fairly apprises the person sought to be charged with the nature and terms of the order to be applied for, the names of the parties to the proceeding, the court before whom the application is to be made, the time and place of such application, signed by the attorneys for the moving party, and duly served on the stockholder at his place of residence by a constable, is sufficient to confer jurisdiction over the stockholder for the purposes of the motion.

(Syllabus by the Court.)

Error from district court, Reno county; L. Houk, Judge.

Action by John A. Cragun against J. C. McClelland, sheriff, to enjoin him from levying an execution. From a judgment in favor of defendant, plaintiff brings error. Reversed.

W. M. Wallace, for plaintiff in error. S. S. Ashbaugh, for defendant in error.

ALLEN, J. James Bullen & Co. brought suit in the district court of Kingman county against the Kingman County Driving Park & Fair Association. For good cause, a change of venue was taken to Stafford county, and thereafter a judgment was rendered in favor of plaintiffs against the fair association for $3,393.28. On this judgment, execution was issued, and returned unsatisfied in part. Thereafter a notice was served on the defendant in error, as one of the stockholders in the fair association, of which the following is a copy:

"State of Kansas, Stafford County-ss.: In the District Court in and for Said County and State. James H. Bullen & Co., Plaintiffs, vs. The Kingman County Driving Park and Fair Association et al., Defendants. Motion to Charge Stockholders of the Defendant Fair Association with Judgment in Said Cause.

"Comes now the plaintiffs herein, by Wallace & Smoot, their attorneys, and move the court for an order for an execution to issue against the stockholders of the defendant corporation, charging them with the amount of plaintiffs' judgment herein unsatisfied, an execution having been issued against the defendant, the Kingman County Driving Park and Fair Association, and returned by the proper officer as 'No property found whereon to levy such execution.' The stockholders of said defendant corporation sought to be charged by this motion are named as follows, each share representing stock to the amount of one hundred dollars: