State v. Merchants' & Miners' Bank

• Decision Date: 14 June 1919
• Docket Number: No. 20745.,No. 20746.,20745.,20746.
• Citation: 213 S.W. 815,279 Mo. 228
• Court: Missouri Supreme Court
• Parties: STATE ex rel. JOHNSON, Tax Collector, v. MERCHANTS' & MINERS' BANK et al. SAME v. CENTRAL NAT. BANK OF CARTHAGE et al.

213 S.W. 815

279 Mo. 228

STATE ex rel. JOHNSON, Tax Collector, v. MERCHANTS' & MINERS' BANK et al.

SAME v. CENTRAL NAT. BANK OF CARTHAGE et al.

No. 20745.

No. 20746.

Supreme Court of Missouri, en Banc.

June 14, 1919.

On Motion to Modify Opinion and Judgment and Rehearing Denied July 7, 1919.

Appeal from Circuit Court, Jasper County; R. A. Pearson, Judge.

Actions by the State of Missouri, on the relation of Bert Johnson, Tax Collector, against the Merchants' & Miners' Bank and others, and by the same plaintiff against the Central National Bank of Carthage and others, consolidated and tried together below. Judgment for plaintiff, and defendants appeal. Judgment affirmed.

J. W. Halliburton, of Carthage, A. E. Spencer, of Joplin, and Howard Gray, of Carthage, for appellants.

R. A. Mooneyham and J. D. Harris, both of Carthage, for respondent.

Frank W. McAllister, Atty. Gen., amicus curim, on rehearing.

GRAVES, J.

These are two actions to recover delinquent taxes. They were consolidated and tried together below, and are so presented here. The first-named number is a case against a state bank, and the second-named number is a case against a national bank.

It is claimed that the state board of equalization raised the assessed value of bank stock in Jasper county from 40 per cent. of their value to 50 per cent. of their value, whilst said state board of equalization left other personal property stand at an assessed valuation of 40 per cent. of the value.

The tax bills in these cases were based upon the assessed valuation as certified to the county by the state board of equalization. The suits cover delinquencies for the five years prior to their institution. During these years and for some time prior, the banks had been paying on a 40 per cent. assessed valuation, instead of the 50 per cent. assessed valuation as fixed by the state board. This is the claim of the defendants. As a fact, they paid about three-fourths of their taxes each year, and these suits are to collect the unpaid portions for the five years next before the institution of these actions.

The tax bills were based upon the valuation fixed by the state board of equalization, and the relator is entitled to recover in this action, unless the judgment of the state board of equalization can be sucessfully attacked in this proceeding. Evidence was admitted, over the objection of plaintiff, which was offered for the purpose of nullifying the judgment of the board of equalization. But after hearing it all the trial court entered judgment for relator. In our view of the law further details are unnecessary.

I. It is settled doctrine in this state that boards of equalization, including the county boards of equalization, as well as the state board of equalization, act judicially. As to the state beard of equalization, the statute (section 11410) thus reads:

"The state board of equalization shall have power to send for persons and papers, to administer oaths through its officers or agents, and to take all evidence it may deem necessary to ascertain the value of the property in the different counties in the state."

So the very statute itself indicates the judicial character of its acts. This court has so ruled as to the state board in State ex rel. v. Western Union Telegraph Co., 165 Mo. loc. cit. 517, 65 S. W. 778, whereat it is said:

"The defendant cannot avail itself of these cases, for the reasons: First, that it seeks to raise the question of discrimination by a defense to an action at law to collect the taxes, and thereby collaterally attacks the judgment of the board of equalization; second, that such questions can only be raised by a direct attack, in equity, and then only upon the condition precedent that it pays or tenders the amount justly due and only asks to have the collection of the excess restrained. This the defendant has not done in this case."

The county boards of equalization perform judicial functions, as is clearly indicated by article 3 of chapter 117, R. S. 1909. And this court has so held. Thus in Black v. McGonigle, 103 Mo. loc. cit. 198, 15 S. W. 616, it is said:

"According to the plain letter of the statute, the board has not only the power to hear complaints, but it has the power, of its own motion, to equalize the valuation for the purposes named in the law, namely, so that each tract of land shall be entered at its `true value.'

"In performing these duties the board acts judicially; this has been often held, and the very nature of the duty to be performed makes it a judicial one. St. Louis Mutual Life Ins. Co. v. Charles, 47 Mo. 465; Railroad v. Maguire, 49 Mo. 483; Cooley on Taxation (1st Ed.) 291."

To like effect in the case of State ex rel. v. Bank, 234 Mo. loc. cit. 197, 136 S. W. 336, whereat we thus spoke:

"In making the order raising the valuation of the property for taxation in Christian county for the year 1905, the county board of equalization was acting in a judicial capacity, and, under the well-settled rule of law applicable to judgments its action was not subject to collateral attack. Black v. McGonigle, 103 Mo. 192 ; State ex rel. v. Vaile, 122 Mo. 33 [26 S. W. 6721; State ex rel. v. Western Union Tel. Co., 165 Mo. 502 ; State ex rel. v. Lumber Co., 198 Mo. 430 ."

So, also, in State ex rel. v. Lumber Co., 198 Mo. loc. cit. 439, 95 S. W. 335, we said:

"But the county board of equalization had jurisdiction over the lands taxed for levee purposes (section 8449, R. S. 1899), and the authority to raise the assessments for benefits against all the lands (section 9131, R. S. 1899), and in so doing it acted judicially. Black v. McGonigle, 103 Mo. 192 ; St. Louis Mutual. Life Ins. Co. v. Charles, 47 Mo. 465; Railroad v. Maguire, 49 Mo. 483; Cooley on Taxation (1st Ed.) 291; Ward v. Board of Equalization, 135 Mo. 309 . In raising the rate of taxation against the lands in the levee district it was sufficient for the board to designate a percentage of increase. 1 Cooley on Taxation (3d Ed.) 786. It is not claimed that the board of equalization failed in any of its duties. Its proceedings were regular, proper notice given, and the result legally published and certified as required by the statute. The act of the board in raising the assessment, being judicial in its character, is not subject to attack in its collateral way."

Other cases along the same line are State ex rel. v. Vaile, 122 Mo. loc. cit. 47, 26 S. W. 672; Railroad v. Maguire, 49 Mo. loc. cit. 483; Black v. McGonigle, 103 Mo. loc. cit. 198, 15 S. W. 615; State ex rel. v. Board of Equalization, 256 Mo. loc. cit. 461, 165 S. W. 1048. In the latter case, supra, Bond, J., said:

"The functions of the board of equalization in judging the assessments of property are judicial, and if in the exercise of that power it shall act without rightful jurisdiction, and this should appear from the face of its record, then certiorari is the proper remedy to quash its record and proceedings."

So that from the beginning to this time we have held the proceedings of these boards (both county and state) to be judicial in character. Not only so, but we have given their proceedings in fixing values the force of judgments. Other cases from this state might be cited, but these are illustrative of the whole line of our cases. Of course, if such bodies in acting (as stated by Bond, J., supra) exceed their constituted power or jurisdiction, and such fact appears upon their records, then we can reach their judgments by certiorari. Such is the rule as to courts.

II. It being conceded (as it must be) that the action of the state board of equalization was judicial in character, then it must be held that its judgment cannot be attacked in this collateral proceeding. That the attack upon the judgment of the state board of equalization is collateral is clear from the books.

In 23 Cyc. p. 1062, the difference between direct and collateral attacks is clearly stated, thus:

"The term `collateral' as used in this connection is opposed to `direct.' If an action or proceeding is brought for the very purpose of impeaching or overturning the judgment, it is a direct attack upon it. Such is a motion or other proceeding to vacate, annul, cancel, or set aside the judgment, or any proceeding to review it in an appellate court, whether by appeal, error, or certiorari, or a bill of review, or, under some circumstances, an action to quiet title. On the other hand, if the action or proceeding has an independent purpose and contemplates some other relief...