15 S.W. 319 (Mo. 1891), State ex rel. Neill v. Phillips

• Citation: 102 Mo. 664,15 S.W. 319
• Docket Number: .
• Date: 02 February 1891
• Parties: The State ex rel. Neill, Collector, v. Phillips, Appellant
• Court: Missouri Supreme Court

Page 319

15 S.W. 319 (Mo. 1891)

102 Mo. 664

The State ex rel. Neill, Collector,

v.

Phillips, Appellant

Supreme Court of Missouri, First Division

February 2, 1891

Appeal from New Madrid Circuit Court. -- Hon. H. C. O'Bryan, Judge.

Reversed and remanded.

J. J. Russell for appellant.

(1) The plaintiff had no evidence upon which to recover. The only evidence offered by plaintiff was what purported to be tax bills. They are made prima facie evidence when they conformed to the law; but these did not show the amount of taxes to each fund, as required. R. S., sec. 7682. These tax bills are required to be made and certified by the collector; hence, of course, the effort of the attorney, on trial, after the evidence was all in, to "patch them up," without the knowledge or consent of the collector, was improper and erroneous. (2) The defendant, in his evidence, showed that the assessor's book for the year 1881 had no affidavit of the assessor, as is imperatively required by law. R. S., sec. 7571; Harvey v. Cook, 82 Mo. 185. The defendant also showed that the assessor's book for 1882 did not have the proper affidavit required by law. The form required by section 7571 seems not to have been followed; that is, it does not state "on the first day of June last past," and said oath was not made on or before the twentieth day of January, but on the third day of April, 1882. R. S., sec. 7571. (3) The effort of the court to cure this fatal defect was supremely erroneous. It was a jurisdictional requirement, and the want of proper affidavits, made in the form and at the time required, rendered the levy and all subsequent steps illegal and void. Harvey v. Cook, 82 Mo. 185; State ex rel. v. Scott, 96 Mo. 72.

Silver & Brown and H. C. Riley for respondent.

(1) The court very properly allowed the plaintiff to amend the bill by writing the words "state," "county" and "school" before the word "tax" at the head of the columns containing the amount belonging to each fund respectively. This amendment could not injuriously affect the owner of the land, and should not be held to be erroneous. Case v. Dean, 16 Mich., at p. 39. (2) It was not error to permit the assessor who made the assessment to verify the assessor's book for 1881 by making the affidavit required by law at the date of the trial. Amendments by officers whose terms have expired are constantly allowed. Kiley v. Cranor, 51 Mo. 581; Stadler v. Roth, 59 Mo. 400; Murfree on Sheriffs [Ed. 1890] secs. 1039, 1039a. Assessors should be allowed to supply omissions and make the necessary affidavits where the omission occurred through accident or mistake. Parish v. Golden, 35 N.Y. 462; Cass v. Bellows, 31 N.H. 501; Bean v. Thompson, 19 N.H. 290. (3) Even if the court should hold that the tax for 1881 was invalid because of the failure of the assessor to make affidavit to his book for that year, the tax for 1882 was legal and valid, and should be upheld. The tax bill shows clearly what the amount for each year was, and the amount due each fund. Walker v. District of Columbia, 12 Cent. Rep. 408. The taxes of 1882 are easily distinguishable from those of 1881 upon the face of the tax bill. Payment of illegal taxes can only be escaped by payment of those that are legal. Arnold v. Hawkins, 95 Mo. 569; State ex rel. v. Flad, 26 Mo. 500.

OPINION

[102 Mo. 666] Brace, J.

This is an...