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The People Ex Rel. Shirk v. Glass

OPINION FILED SEPTEMBER 25, 1956.

THE PEOPLE EX REL. JOSEPH D. SHIRK, COUNTY COLLECTOR, APPELLEE,

v.

THEODORE G. GLASS, DOING BUSINESS AS TED GLASS OIL PROPERTIES, APPELLANT.



APPEAL from the County Court of Perry County; the Hon. MICHAEL K. GRABOWSKI, Judge, presiding.

MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:*FN1 *FN1 THIS OPINION WAS PREPARED BY THE LATE MR. JUSTICE MAXWELL AND HAS BEEN ADOPTED AND FILED AS THE OPINION OF THE COURT.

This is an appeal by a taxpayer from an order of the county court of Perry County overruling objections to the application by the county collector for judgment for taxes against a certain oil and gas leasehold for the years 1954 and 1953. The court overruled the objections and rendered judgment against the real estate for the two years. No questions were raised on the pleadings. As this case relates to revenue, appeal was taken directly from the trial court to this court.

The objector's theory is that the real estate was assessed for the taxes in the year 1954 as omitted property for the years prior to 1954 by the assessor, not by the board of review, without notice to the taxpayer and without a hearing.

The theory of the collector is that the assessments were for the years 1954 and 1953; that the assessment for the current year of 1954 was made in 1954 by the assessor; that the assessment for the omitted year of 1953 was made by the board of review; and that the objector has waived his right to question either assessment.

The objector commenced the operation of oil wells in Perry County in the spring of 1952. He made no effort to schedule his interest in the leasehold for the years 1952 and 1953 although the wells were in continuous production. The property was not listed in the assessment book for the quadrennium 1950-53. The objections here are to taxes assessed against the oil-and-gas leasehold for two separate years and are the first ever made against objector's leasehold property. It is admitted that the assessments for both years were made in 1954. The assessment book, before being amended, showed that the assessments were for the years 1953 and 1952.

At the hearing on the objections the collector made a prima facie case by introducing the tax judgment, sale, redemption and forfeiture record of Perry County and proof of publication of the delinquent lists.

Thereafter the collector requested and obtained leave of court to introduce evidence to form a basis to amend the assessment book to make it show that the assessments were for the years 1954 and 1953 and to further make it show that the 1954 assessment was made by the assessor. The trial court, over objection, permitted the introduction of such evidence and after its introduction allowed the amendment of the assessment book accordingly.

We shall first consider the amendment to the assessment book. Objector contends that the trial court erred, first, in hearing any evidence on which to base the amendment and, second, in allowing the amendment on the evidence adduced.

For the purpose of effecting the amendment, the People called the former assessor and introduced in evidence the applicable assessor's book for the years 1954-1957. On line 15 of page 14 of this book was written a description of the oil and gas lease in question. Beside this description was written the figure "1953." Below the description and on line 16 was written "Ted Glass Oil Properties, 7/8 W.I. less 1/32 of 7/8 ORR" and opposite this in the column headed "As Revised, Corrected or Made by the Board of Review" was written the figure "80,300." Below the 80,300 figure were written the valuation figures for a third party's overriding royalty interest and the land owner's 1/8 royalty interest. To the left of "oil wells" was written "(1953)" with the figure "4" superimposed upon the "3." On lines 19 and 20 of this same page the description of the lease was again written and beside this description was the figure "1952." Below this description and on line 21 was written "Ted Glass Oil Properties (7/8 W.I.)" and opposite this in the column headed "As Revised, Corrected or Made by Board of Review" was written the figure "97,000." Below this 97,000 figure was written a valuation for land owner's 1/8 royalty interest. To the left of these two valuation figures was a bracket, to the left of the bracket was written "oil wells"; and to the left of "oil wells" was written "(1952)" with the figure "3" superimposed upon the "2."

The attention of the witness was directed to the appropriate lines in the book where the disputed assessments were shown. He testified that it was in 1954 that he commenced preparation of the assessment of objector's property and that the years involved were 1954 and 1953. Further that when he entered the assessment of $80,300 at lines 15-17, he intended the figure as an assessment for 1954, but through a clerical error it showed 1953. In support of his recollection the published assessment roll for 1954 was introduced and identified. This exhibit shows the property listed at lines 15-17 was assessed for 1954 at $80,300, the same figure which appears in the assessment book. There was further testimony by the witness that as assessor he made the assessment of $80,300 in the year 1954 and that it was not changed or revised by the board of review.

With reference to the assessment of $97,000 at lines 19-21, the witness testified that 1953 was the year intended to be assessed rather than 1952. His recollection was supported by a letter from the witness to objector dated June 19, 1954, to which was attached a real and personal property tax return for oil producers showing that the assessment for 1953 was $97,000.

Over the objector's objections, the court permitted page 14 of the assessor's book to be amended by changing the figure "1953" on line 15 to "1954," changing the figure "1952" on line 19 to "1953" and inserting the figure $80,300 in the column headed "As Made by Assessor."

After leave to amend had been granted and amendment made, the county clerk of Perry County was called as a witness for the collector. Over objection, the collector's book for 1954 was introduced in evidence and the county clerk testified that valuations of objector's property, entered in lines 20 and 21 and 26 through 29, page 14 of the collector's book for 1954, were taken from page 14 of the assessor's book. He further testified that, prior to making the extensions for the years 1954 and 1953, he determined from the assessor that those were the years intended to be assessed.

The objector urges, first, the assessment record cannot be amended by parol evidence; second, that a certificate of error is the sole means of amendment of the record; and, third, conceding the trial court had the authority to permit the ...


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