61 S.W. 676 (Mo. 1901), The State ex rel. Mahan v. Merchants Bank of Jefferson City

Citation:61 S.W. 676, 160 Mo. 640
Opinion Judge:BURGESS, J.
Party Name:THE STATE ex rel. MAHAN, Collector, v. MERCHANTS BANK OF JEFFERSON CITY
Attorney:Edwards & Edwards for appellant. A. M. Hough for respondent.
Judge Panel:BURGESS, J. Sherwood, P. J., not sitting; Gantt, J., concurs. Sherwood, P. J., not sitting; Gantt, J., concurs.
Case Date:March 12, 1901
Court:Supreme Court of Missouri
 
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Page 676

61 S.W. 676 (Mo. 1901)

160 Mo. 640

THE STATE ex rel. MAHAN, Collector,

v.

MERCHANTS BANK OF JEFFERSON CITY

Supreme Court of Missouri, Second Division

March 12, 1901

Appeal from Cole Circuit Court. -- Hon. D. W. Shackleford, Judge.

Reversed and remanded.

Edwards & Edwards for appellant.

(1) The suit is against the "Merchants Bank of Jefferson City," while the alleged assessment is against "Merchants Bank." This is no more defendant's name than if it had been assessed against the "Savings" or "Jones Bank." R. S. 1889, secs. 7553, 7555, 7556; Hubbard v. Gilpin, 57 Mo. 441; Abbott v. Lindenbower, 42 Mo. 162; St. Louis v. Wenneker, 145 Mo. 239; R. S. 1889, secs. 7679 and 768. (2) The vital point in the case is the assessment. If the shareholders in the bank had a million dollars, this money could not have been assessed to the bank under section 7538 of the statutes of 1889, which is the same as the law now. R. S. 1889, sec. 915; State ex rel. v. Catron, 118 Mo. 280; State ex rel. v. Bank of Neosho, 120 Mo. 161. (3) The tax-bill is prima facie evidence of what it contains, and it devolves upon the defendant to overcome it by competent evidence. State ex rel. v. Hutchinson, 116 Mo. 399; State ex rel. v. Philips, 137 Mo. 259. Yet, when defendant, even by competent testimony offered to do so, he is refused by the court. (4) The so-called assessment made by the assessor, was an arbitrary action on his part, as was also the action of the board of appeals. When the cashier furnished the assessment list required by law, the assessor was bound to make the assessment from it. State ex rel. v. Cunningham, 153 Mo. 642. (5) This is not an effort to avoid paying any tax, but if respondent is correct, this bank pays not only on the shares of the stock of its stockholders, but on its real estate in addition, which forms a large part of its capital stock.

A. M. Hough for respondent.

(1) The failure of defendant to stand on its motion to make the petition more specific, was a waiver of the matter set up in the motion. Davis v. Boyce, 73 Mo.App. 563. (2) The assessment was properly made. Laws 1891, p. 195; In re Ward v. Board of Equalization, 135 Mo. 309. (3) Irregularities or informalities in making an assessment will not defeat the assessment. R. S. 1889, secs. 7563 and 7708; State ex rel. v. Bank of Neosho, 120 Mo. 170. (4) The Act of 1891 (Laws 1891, page 195), under which this assessment was made, does not require the assessment to be made against the stockholders (conceding that this assessment is against the stock, which fact the defendant failed to show), but provides that shares, premiums and other earnings shall be assessed as that amount of money. (5) A slight change in the name will not vitiate the assessment, especially where it appears the assessees represented the same persons. Souhegan Factory v. M. Conihe, 7 N.H. 309; St. Louis v. Wenneker, 145 Mo. 240; State ex rel. v. Bank, 120 Mo. 170. (6) Defendant's objection to paying its taxes was a charge of over-valuation. If dissatisfied with the action of the assessor, its remedy was by certiorari. State ex rel. v. Bank, 120 Mo. 170. (7) The acts of the board of equalization, being judicial, can not be impeached collaterally. Black v. McGonigle, 103 Mo. 198; State ex rel. v. Vaile, 122...

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