The State ex rel. Ward v. Atchison

• Decision Date: 18 March 1903
• Citation: 72 S.W. 1075,173 Mo. 164
• Parties: THE STATE ex rel. Ward v. ATCHISON et al., Appellants
• Court: Missouri Supreme Court

72 S.W. 1075

173 Mo. 164

THE STATE ex rel. Ward v. ATCHISON et al., Appellants

Supreme Court of Missouri, First Division

March 18, 1903

Appeal from Clinton Circuit Court. -- Hon. A. D. Burnes, Judge.

Affirmed.

Thomas W. Walker and W. S. Herndon for appellants.

(1) The pecuniary punishment, imposed by the statute, for making a false assessment list, with intent to defraud, is a civil liability. The penal part of the statute is enforcible by indictment. State v. Cannon, 79 Mo. 346; State ex rel. v. Moss, 69 Mo. 499. If the right to enforce the provisions of section 9150, survived the death of John Ward then the board of equalization had jurisdiction, their action is final, and not subject to review by the circuit or any other court. Britton v. Steber, 62 Mo. 373; State ex rel. v. Hoyt, 123 Mo. 356. (2) The merits of the controversy can not be inquired into in certiorari proceedings. No evidence is required to be preserved, and hence it can not be examined. Nothing but the record is brought up. Railroad v. Board of Equalization, 64 Mo. 294; State ex rel. v. Board of Equalization, 108 Mo. 235. (3) The act of John Ward in giving a fraudulent and false assessment list of his property to the assessor, during his lifetime, created a cause of action in favor of the State, under the law, that is, a right to enforce the provisions of section 9150. It was a wrong done the property rights and interests of the State, i. e., it deprived it of its revenue. It was a pecuniary benefit and a source of profit to John Ward. After his death, it was a pecuniary benefit and a source of profit to his estate. Therefore, the cause of action survives, not only to the extent of the benefit to the estate, but also to the civil remedy of treble taxation given by the statute. Sec. 96, R. S. 1899; Wiener v. Peacock, 31 Mo.App. 242; Baker v Crandall, 78 Mo. 524; Roberts v. Nelson, 86 Mo 21; James v. Christy, 18 Mo. 162; Higgins v. Breen, 9 Mo. 497; Davis v. State, 119 Ind. 555; Genin v. Belmont Co., 18 Oh. St. 534. (4) The rule that personal actions die with the person, applies only to actions affecting the person of the parties, as assault and battery, slander and false imprisonment. Roberts v. Marsen, 23 Hun (N. Y.) 486; Haight v. Hayt, 19 N.Y. 274. The rule has been modified in some jurisdictions, to the extent that where any pecuniary advantage has accrued to the defendant, the action survives where the action was merely personal. U. S. v. Daniel's Exec'rs, 6 How. 11; Pitts v. Hale, 3 Mass. 321; Cravath v. Plymton, 13 Mass. 250; Wilbur v. Gilmore, 21 Pick. (Mass.) 250; Watson v. Loop, 12 Tex. 11.

E. J. Smith for respondent.

(1) A proceeding under section 9150, Revised Statutes 1899, is criminal in its nature, and abates at the death of the person who violates it. It is clear that there is no violation of this statute unless the "list" is not only a false list, but made "with intent to defraud." An indictment founded on section 9150, in order to be good, must allege in substance that it was a false and fraudulent list of taxable property; also give in general terms at least, a description of the property omitted from the list. State v. Welch, 28 Mo. 600. Also that the party charged made such list with the intent to defraud. State v. Foulks, 57 Mo. 461. The section is not an infraction of the Constitution by reason of constituting the board of equalization a tribunal for the purpose of determining as to the guilt or innocence of a party charged with a violation of its provisions; and for such violation with the assessment of the treble taxation penalty. State ex rel. v. Moss, 69 Mo. 495. The manifest intention of the section is to provide a punishment for a taxpayer who delivers to the assessor a false tax list with an intent to defraud. State v. Ebbs, 89 Mo.App. 95. (2) A criminal case abates upon the death of the defendant. State v. Perrine, 56 Mo. 602; State v. Woods, 56 Mo.App. 55. A prosecution for violation of a city ordinance abates upon the death of the defendant. Town of Carrollton v. Rhomberg, 78 Mo. 547. It has been decided by the higher courts of this State as well as others, "That in the absence of a statute to the contrary all actions arising ex delicto die with the person by whom or to whom the wrong was done. Such for instance as trespass, trover, deceit, etc., where the plea must be not guilty." Melvin ex rel. v. Evans, 48 Mo.App. 426; Hegerick v. Keddic, 99 N.Y. 258; Stebbins v. Palmer, 1 Pick. 71; Pitts v. Isom (Ga.), 56 Am. Dec. 420; Cowan v. Campbell, Adm., 66 Am. Dec. 184; Schreiter v. Sharpless, 17 F. 589; U. S. v. De Goer, 38 F. 80; Fairley v. Davis, 6 Ala. 375; Willis v. Byrne, 106 Ala. 425; Little v. Conant, 19 Mass. (2 Pick.) 527; Yarter v. Flagg, 143 Mass. 280; Reynolds v. Mason, 54 How. Prac. 213; Estes v. Lenox, 1 N.C. 72; Mason v. Ballew, 35 N.C. 483; Governor v. McManus, 30 Tenn. 152. It is also decided that where a statute is penal it should be strictly construed. State to use v. Railroad, 19 Mo.App. 104; Parish v. Railroad, 63 Mo. 284. Tax laws must also be strictly construed under the decisions of this State. State to use v. St. Louis County Court, 13 Mo.App. 53; 84 Mo. 234; and especially should that be done in this case. (3) The authorities cited by appellants to sustain their third proposition, namely, State v. Cannon, 79 Mo. 343, and State ex rel. v. Moss, 69 Mo. 495, are not in point. The former simply decides that a party guilty of a violation of section 9150 may be proceeded against both by the board of equalization and on indictment in the circuit court, and that each tribunal in its proceeding is independent of the other; and there is no doubt about the section authorizing that; but the penalty inflicted in this case is only to be applied to those who are found guilty of fraudulent intent and therefore it is criminal in its nature. The latter, State ex rel. v. Moss, 69 Mo. 495, merely holds that the section is constitutional, as heretofore stated.

OPINION

BRACE, P. J.

This is an appeal from a judgment of the circuit court of Clinton county, in a proceeding in that court by certiorari, quashing a record and proceeding of the board of equalization of said county.

By section 9150, Revised Statutes 1899, it is provided that: "If any person shall, with intent to defraud, deliver to any assessor a false list of his property, it shall be the duty of the assessor to give notice in writing thereof to the said county board of equalization; and the said board shall, on receiving such notice, give notice thereof to the person who shall have furnished such false list, which notice shall specify the particulars in which said list is alleged to have been false, and shall fix a time for a hearing of the matter, on which day the person aforesaid shall have the right to appear and defend against such charge; and if it appear that such person is not guilty as charged, the said board shall dismiss the matter; but if it appear that such person is guilty as charged, it shall be the duty of said board of equalization to ascertain the true amount and value of all property of such person subject to taxation, and to tax the same as similar property of other persons is taxed, and in addition shall, by way of penalty for furnishing such false list, treble the amount of taxes thus ascertained against such person; and such person shall be required to pay such treble amount, and shall in addition thereto be liable to be punished for perjury."

On September 29, 1899, John Ward, late of said county, deceased, gave a list of his taxable property to Phillip V. Bowman, the assessor of said county, and afterwards on November 12, 1899, died intestate, and the respondent became his administratrix. Afterwards on April 14, 1900, the said assessor gave notice in writing to the board of equalization of said county, that the said John Ward did, on said 29th day of September, 1899, with intent to defraud, deliver to said assessor a false list of his property, in this: "That said list contains, 'for other personal property, sixty dollars; money, notes, twenty-five hundred dollars,' when in truth and in fact the said John Ward was on the first day of June, 1899, the owner of additional personal property which he failed to list, as follows: money, notes thirty thousand, nine hundred and sixty-nine dollars and forty-three cents, as shown by the records in the probate office of said Clinton county, Missouri."

Thereupon the board ordered that said matter be heard on April 19 1900, and that a copy of said notice and order be served upon the respondent administratrix, to appear before the board on that day to answer the charge, which on the same day was served on said administratrix, and on April 19, 1900, she appeared by attorneys before the board, for the purpose of the motion only, and moved that the proceeding be...