Brinkerhoff-Faris Trust & Savings Co. v. Hill

• Citation: 19 S.W.2d 746,323 Mo. 180
• Decision Date: 29 June 1929
• Docket Number: 29549
• Parties: Brinkerhoff-Faris Trust & Savings Company, Appellant, v. Walter O. Hill, Treasurer and Collector of Revenue for Henry County
• Court: United States State Supreme Court of Missouri

19 S.W.2d 746

323 Mo. 180

Brinkerhoff-Faris Trust & Savings Company, Appellant, v. Walter O. Hill, Treasurer and Collector of Revenue for Henry County

No. 29549

Supreme Court of Missouri

June 29, 1929

Rehearing Denied August 2, 1929.

Appeal from Clinton Circuit Court; Hon. W. L. Burney Judge.

Affirmed.

Montgomery & Rucker for appellant.

(1) Where the assessing officers establish a rule or principle of valuation, the necessary result of which is to tax one species of property higher than others and higher than the average rate, a court of equity will grant appropriate relief. State ex rel. Gottlieb v. Telegraph Co., 165 Mo. 502; Terminal Co. v. Koeln, 8 S.W.2d 1025; Jefferson City Bridge Co. v. Blaser, 300 S.W. 785; Boonville Natl. Bank v. Schlotzhauer, 298 S.W. 738; City Ry. Co. v. Beard, 293 F. 448. (2) The intentional, systematic and arbitrary omission of the assessing officers to assess poultry of all kinds and sucking animals of all kinds was an intentional, systematic deliberate and arbitrary discrimination against bank stock (which was assessed at full value) and was in contravention of appellant's constitutional rights under the sections of the State and Federal constitutions pleaded in the petition. Terminal Co. v. Koeln, 8 S.W.2d 1025; Tie Co. v. Allen, 8 S.W.2d 1042; Jefferson City Bridge Co. v. Blaser, 300 S.W. 785; City Ry. Co. v. Beard, supra. (3) The assessment of sheep at a flat rate of $ 4 or $ 5 a head or of neat cattle three years old and over at an average rate of $ 30 per head or of horses at an average rate of $ 30 per head, or of mules at a flat rate of $ 50 per head, all done pursuant to instructions of the county court or an agreement among the township assessors given or made several weeks prior thereto without regard to actual market values, when the average value of sheep in Clinton Township was $ 9 per head, the average value of neat cattle was more than $ 50 per head, the average value of horses was more than $ 50 per head and the average value of mules was more than $ 75 per head, was made pursuant to a rule or plan adopted and systematically followed which was designed to discriminate injuriously against bank stock. City Ry. Co. v. Beard, supra. (4) Where all of one of the fourteen statutory classes of property (bank stock) is assessed at 100 cents on the dollar and the State Board of Equalization adopts the aggregate assessment of such class of property in Henry County before the meeting of the Henry County Board of Equalization, the Henry County Board of Equalization was without authority or jurisdiction to grant relief to the owners of that class of property, because it is without authority or jurisdiction to either raise or lower the aggregate sum of the assessment of that class of property. Therefore, an appeal by the owners of such property to the County Board of Equalization would be wholly futile and would not afford any remedy at law whatsoever. State ex rel. Thompson v. Dirckx, 11 S.W.2d 41. "The authority of the County Board of Equalization is limited to equalizing valuations of property within a class." State ex rel. Thompson v. Bethards, 9 S.W.2d 605; Boonville Natl. Bank v. Schlotzhauer, 317 Mo. 1298. All bank stock in Henry County was assessed by the assessor at one hundred cents on the dollar which made the aggregate assessment of all banks in Henry County $ 641,140. The State Board of Equalization adopted these figures and certified them back to the County Clerk of Henry County. Therefore, the county board had to retain the aggregate assessment of banks at the same figure and, since all banks were assessed at one hundred cents on the dollar, it could not grant relief to one bank without doing wrong to another. The State Board's action took place before the County Board of Equalization met.

N. B. Conrad, Frederick F. Wesner and C. A. Calvird, Jr., for respondent.

(1) The evidence was insufficient to prove undervaluation of real estate or personal property in Henry County as charged in plaintiff's petition. Van Bibber v. Swift & Co., 286 Mo. 317; Griffith v. Casualty Co., 229 Mo. 426; Fargason & Co. v. Coleman, 272 S.W. 1003; Hamilton v. Ry. Co., 300 S.W. 787; Cardinale v. Kemp, 274 S.W. 437; Edling v. Exhibition Co., 181 Mo.App. 327. (2) The evidence is insufficient to establish fraud, either actual or constructive. Fraud will not be presumed, but must be clearly and distinctly proved by the person alleging it. Flood v. Busch, 165 Mo.App. 142; Maddux v. Trust Co., 186 Mo.App. 138; Troll v. St. Louis, 257 Mo. 626; Decker v. Diemer, 229 Mo. 296; R. S. 1919, Arts. II, III, IV, V, Chap. 119; St. Louis Electric Bridge Co. v. Koeln, 315 Mo. 424, 287 S.W. 427. (3) Plaintiff had an adequate remedy at law and therefore equity will not lie. Omitted property could have been assessed. Secs. 12819, 12825, 12847 (3), (7), 12848, R. S. 1919. Erroneous assessments, if any, could have been corrected. Articles II, III, IV, V, Chap. 119, R. S. 1919. (4) Plaintiff was guilty of laches and is estopped from maintaining this action.

Stratton Shartel, Attorney-General, and L. Cunningham, Assistant Attorney-General, amicus curiae.

(1) The law contemplates that all property in Missouri subject to taxation shall be assessed for taxation at its true value in money; that it shall be taxed in proportion to its value, and that such taxes shall be uniform on the same class of subjects of taxation within the territory of the authority levying the tax. Secs. 3 and 4, Art. X, Constitution of Missouri; Secs. 12802, 12855, 12775, 12821, 12826, R. S 1919; State ex rel. v. Telegraph Co., 165 Mo. 502; State ex rel. v. Bethards, 9 S.W.2d 603; State ex rel. v. Dirckx, 11 S.W.2d 38; Mercantile Trust Co. v. Schramm, 269 Mo. 489. (2) The State Board of Equalization is established by the Constitution for the express purpose of carrying into effect these principles, and its judgment is final and conclusive on the question of the aggregate valuation to be placed on classes of property in the counties of the State in equalizing the same among the counties. Sec. 18, Art. X, Constitution of Missouri; Secs. 12855, 12821 and 12826, R. S. 1919; State ex rel. v. Tax Commission, 295 Mo. 298, 243 S.W. 887; State ex rel. v. Bethards, 9 S.W.2d 603; State ex rel. v. Dirckx, 11 S.W.2d 38; State ex rel. Johnson v. Bank, 279 Mo. 228; Mercantile Trust Co. v. Schramm, 269 Mo. 489; State ex rel. v. Hall, 221 S.W. 708; State ex rel. Gardner v. Harris, 286 Mo. 262; State ex rel. Hawken v. Edwards, 315 Mo. 209; State ex rel. Teare v. Dungan, 265 Mo. 353; State ex rel. Wyatt v. Hoyt, 123 Mo. 348. (3) The judgment of the State Board of Equalization fixing the aggregate valuation of classes of property cannot be set aside or annulled by collateral attack, nor is any authority given to the courts to substitute the judgment of the court on the question of valuation for the judgment of the State Board of Equalization on that question. State ex rel. Wyatt v. Vaile, 122 Mo. 33; Black v. McGonigle, 103 Mo. 192; State ex rel. v. Telegraph Co., 165 Mo. 502; State ex rel. v. Lumber Co., 198 Mo. 430; State ex rel. Arnold v. McCune, 252 S.W. 657; State ex rel. Johnson v. Bank, 279 Mo. 228; State ex rel. Gardner v. Harris, 286 Mo. 262; State ex rel. v. Hall, 221 S.W. 708. (4) It appears from the face of plaintiff's petition that it did not bring this action until long after the State, county and other political subdivisions of the State had made their tax levies and entered into contracts and assumed obligations based on the assessed valuation as fixed by the assessing authorities, and by reason of such delay the plaintiff is barred from equitable relief. Lyons v. School District, 278 S.W. 74. (5) The circuit court had no jurisdiction of the subject of the action which was in effect to vacate and annul the assessment judgment of the State Board of Equalization. State ex rel. Gardner v. Harris, 286 Mo. 262; State ex rel. v. Hall, 221 S.W. 708. (6) Errors in valuation cannot be reached or remedied by injunction. The action of the State Board of Equalization or of the county board of equalization cannot be reached by injunction. The plaintiff failed to avail itself of the remedies provided by statute and made no complaint to the county board of equalization or any other tax assessing authority; nor did it make application to the Supreme Court or any other court to review the action of the county board of equalization or of the State Board of Equalization by certiorari. Equitable relief will not be granted where the plaintiff had complete and adequate remedy at law of which it failed to avail itself. 34 C. J. 436, par. 685; National Bank v. Staats, 155 Mo. 55; Meyer v. Rosenblatt, 78 Mo. 495; State ex rel. v. Bank of Neosho, 120 Mo. 161; State ex rel. Johnson v. Bank, 279 Mo. 228; State ex rel. Gardner v. Harris, 286 Mo. 262; State ex rel. Cemetery Assn. v. Casey, 210 Mo. 235; State ex rel. Johnston v. Buder, 242 S.W. 979; Perkins v. Railroad Co., 143 Mo. 513; Railroad Co. v. Maddox, 92 Mo. 469; State to use of Connelly v. Railroad Co., 32 Mo. 496; Railway Co. v. Gracy, 126 Mo. 472; Hamilton v. Rosenblatt, 8 Mo.App. 237; State ex rel. Cramer v. Hager, 92 Mo. 511; Dean v. Todd, 22 Mo. 90; National Bank v. Meredith, 44 Mo. 500; McPike v. Pew, 48 Mo. 525. (7) The action of the assessor in assessing property, the county board of equalization in equalizing the valuation of property between individuals, and of the State Board of Equalization in equalizing and fixing the valuation of the classes of property in the various counties of the State are judicial and their decisions have the effect of judgments. State ex rel. Johnston v. Buder, 242 S.W. 979; State ex rel. v. Casey, 210 Mo. 235; State ex rel. Ashby v. Lumber Co., 198 Mo. 430; State ex rel. Arnold v. McCune, 252 S.W....