State v. Vaile

• Decision Date: 14 May 1894
• Citation: 26 S.W. 672
• Parties: STATE ex rel. WYATT, Collector, v. VAILE.
• Court: Missouri Supreme Court

26 S.W. 672

STATE ex rel. WYATT, Collector, v. VAILE.

Supreme Court of Missouri, Division No. 1.

May 14, 1894.

TAXATION — EQUALIZATION — COUNTY AND STATE BOARDS.

1. A nunc pro tunc order of the county court in correction of one approving the collector's settlement on return of the delinquent list, so as to show that the court examined and corrected said list, and ordered the clerk to certify and file it as corrected (Rev. St. 1889, § 7669), will be presumed to have been made and entered on sufficient evidence.

2. The county board of equalization, being required to meet at the county clerk's office on the first Monday in April, has a right to meet at the branch county clerk's office established by statute in a city, where the records of proceedings there had are to be kept.

3. A county board of equalization has the inherent power to adjourn from time to time, and the fact that on assembling it declares its intention to meet at another lawful meeting place in the county on a certain day does not prevent it from modifying said order by its day to day adjournments.

4. An assessment cannot be overthrown because the board of equalization met in the court room instead of in the clerk's office, both being in the same building, and nobody misled.

5. The custom of a county board of equalization when in session in one place to consider only the assessments of a certain part of the county, cannot deprive a taxpayer in another part of his legal right to present his case there for equalization.

6. Const. art. 10, § 18, provides for a state board of equalization to adjust the valuation of realty and personalty among the several counties; and Rev. St. 1889, § 7514, requiring them to do so by adding to or deducting from the valuations in each county such per centum as shall result in the true value, does not give such board any right to reduce the valuation in one county of town lots at one rate, and of lands at another; and its order thereunto is void.

7. The state board's orders reducing valuations being void, the assessment, as equalized by the county board, remains the only legal assessment whereon to extend taxes.

8. The headings of the columns of an assessment roll are a part of the description of the land assessed.

9. In an assessment roll, the abbreviations "ex." for except, "a." for acres, and "cor." for corner, being in every-day use, and well understood, though not mentioned in the statute, are sufficient.

Appeal from circuit court, Jackson county; R. H. Field, Judge.

Action on relation of Frank C. Wyatt, collector, against H. M. Vaile, for delinquent taxes. Judgment for plaintiff. Defendant appeals. Affirmed.

J. N. Southern and Warner, Dean & Gibson, for appellant. J. G. Paxton, for respondent.

BLACK, J.

The collector of Jackson county brought this suit to recover delinquent taxes for the years 1888 and 1889 on eight or nine parcels of land owned by defendant. The cause was tried before the court without a jury, resulting in a judgment for the plaintiff for $2,048.

1. The plaintiff put in evidence the tax bills, and rested. To defeat the prima facie case thus made, the defendant called the deputy county clerk, who produced the delinquent list for 1888, and testified that the collector returned it to the county court on the 19th March, 1889. With the records of the county court before him, and without objection, he testified that they showed an order of the court approving the collector's settlement, made when the delinquent list was returned, but that the records showed no order correcting the list, or directing the clerk to certify and file the list in his office. On the 20th January, 1890, the county court made a nunc pro tunc order correcting the one made in March, 1889, so as to show that the court examined the delinquent list, corrected the same, and ordered the clerk to certify the corrected list, and file the same in his office. The clerk made the certificate in due form, and then filed the list thus certified in his office. This certificate bears date the 13th March, 1890. The tax bills are based on the back-tax book, which is made up from the delinquent list. The statute (section 7669, Rev. St. 1889) makes it the duty of the county court to examine the delinquent list when returned by the collector, correct the same, and cause the corrected list to be certified by the county clerk, and filed in his office. It has been held by this court that a failure of the county court to examine, correct, and cause the list to be certified is sufficient to overcome the prima fade case made by the tax bills, since they are based on books which are based upon this delinquent list. State v. Scott, 96 Mo. 72, 9 S. W. 21; State v. Hurt, 113 Mo. 90, 20 S. W. 879; State v. Hutchinson, 116 Mo. 399, 22 S. W. 785. The court had the undoubted right and power to amend its former record so as to make it conform to the facts. But it is said a record can only be amended at a subsequent term, where the minutes of the judge or clerk, or some paper filed in the cause, show the facts from which the amendment can be made. Such is the rule in this state, though a different rule prevails in some courts. When, however, a mule pro tunc order has been made, and is offered in evidence in another suit, the presumption is that it was made and entered upon sufficient evidence. Allen v. Sales, 56 Mo. 28; Belkin v. Rhodes, 76 Mo. 643; 1 Freem. Judgm. (4th Ed.) § 67. Now, there is no evidence in this case to overcome this presumption, for the minutes of the clerk were not offered in evidence. Indeed, there was no effort made to show that the amending order was not made on sufficient evidence. The nunc pro tunc order stands as a valid order, so that the tax bills still have their prima facie effect as evidence, — an effect given to them by the statute.

2. A further defense made to all the taxes sued for is that the assessment for 1888 and 1889 is void, because the county board of equalization did not meet at the proper time and place. The facts bearing upon this issue, and upon the further issue that the defendant was deprived of a hearing before that board, are to the following effect: The county board of equalization met at the office of the county clerk in Kansas City on Monday, 3d April, 1888, and made an order stating that it would meet at Kansas City on the 5th, and continue in session until the 14th; that it would meet at Independence on the 16th, and continue in session there for four days. The same order states that the board of appeals would meet at Kansas City on the 23d, and continue in session at that place four days; and that it would meet at Independence on the 27th, and continue in session two days, for the purpose of hearing appeals. The board held sessions and transacted business at Kansas City from the 5th to the 20th, instead of the 14th. On the 20th it adjourned to meet at Independence on the 21st. The record made at that place is in these words: "Independence, Mo., Saturday morning, April 21, 1888. Board met in county court room pursuant to adjournment. Present, a full board. On motion the board of equalization adjourned sine die." The board calling itself a "board of appeals" convened again at Kansas City on Monday, the 23d of April, 1888, and transacted business until the 26th, when it adjourned to meet at Independence on the 28th. It met at that place, and transacted business on the 28th and 30th of that month. Kansas City is in range 33. The evidence shows it was the custom of the board to consider assessments in that range only when sitting at that place, and to consider assessments in all ranges east of 33 when sitting at Independence, the county seat. The defendant's lands are in a range east of 33, and are near the city of Independence. The evidence shows that the board of equalization did not hold its session in the county clerk's office at Independence, but held the same there in a court room in the courthouse. The clerk's office is in the same building. The defendant did not appear before the board at any time it was in session at Kansas City. The evidence of one member of the board is that defendant and several other persons appeared before the board while it was in session on the 21st, at Independence, as a board of equalization, and that the defendant there complained that his lands had been assessed too high. The evidence of the defendant is that he did not appear before the board at that time, but he did appear before it on the 28th, when it was sitting as a board of appeals. He says he was told by members of the board that they had no time to hear his complaint. The statute makes it the duty of the county board of equalization to meet "at the office of the county clerk on the first Monday in April of each year." The board, it will be seen, met and organized at the proper time; but it is said it should have met at Independence, the county seat of Jackson county, and not at Kansas City. The fifth section of the act of 21st March, 1873 (Acts 1873, p. 155), provides for holding terms of the county court at Kansas City, as well as at Independence. The power thus conferred upon the court to hold terms at Kansas City was not, in our opinion, repealed by the act of 27th April, 1877. It was, therefore, the duty of the county court, under the terms of sections 3428 and 3429, Rev. St. 1889, to establish, and it did establish, "a branch county clerk's office" at Kansas City. According to the second of these sections, the records of the proceedings had at Kansas City are to be kept and preserved at that place. That section provides further that "all acts done and performed at such place shall have the same force and effect as if done at the county seat." It is true the county board of equalization, though composed in part of the justices of the court, is a different body from the county court. But it is plain to be seen from what has been said there are two county clerks' offices in Jackson county, one...