State ex rel. Harvey v. Cook

• Citation: 82 Mo. 185
• Parties: THE STATE ex rel. HARVEY v. COOK, Appellant.
• Decision Date: 30 April 1884
• Court: United States State Supreme Court of Missouri

82 Mo. 185

THE STATE ex rel. HARVEY

v.COOK, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

REVERSED.

W. B. Martindale for appellant.

The assessment for 1873 was not verified as required by law. Wag. Stat., § 61, chap. 118. It is nowhere provided that the assessment may be divided into two books, nor that a certificate attached to one book shall sufficiently authenticate some other book. One book, the land assessment one, must be treated as not certified to. Newell v. Smith, 38 Wis. 39. For 1874 no assessment whatever of lands was made or returned. The assessment of 1873 could not supply the place of a new assessment altogether for 1874. Wag. Stat. 1872, chap. 118, §§ 38, 61, 65. There being no land assessment for 1874, no land tax book could be made, and the tax assumed to be levied for that year was void. Cooley on Taxation, p. 259; Thurston v. Little, 3 Mass. 429; Mason v. Whitney, 1 Pick. 140; People v. Hastings, 29 Cal. 449.Bryan & Sanders for respondent.

SHERWOOD, J.

Action brought in 1878 for taxes due on certain land for the years 1873 and 1874. Section 61, 2 Wag. Stat. 1170 provides that: “The assessor shall make out and return to the county court, on or before the 20th day of January in every year, a fair copy of the assessor's book, verified by his affidavit annexed thereto in the following words, etc.” This section so far as quoted shows in plain and unambiguous language that there is but one book authorized by this section, and further on the section shows that the book to be made out by the assessor is to contain lists of both real and personal property. This section was not obeyed in the present case. The assessor when making out his book for the year 1873 made out two instead of one. That relating to personal property was verified as required by law, except that the words, “foregoing books,” were used in the affidavit “annexed thereto,” but there was no affidavit annexed to the book which contained the land list and, of course, there was no verification of that list or that book. Sec. 38, chap. 118, Wag. Stat. (Ed. 1878) reads: “The clerk of the county court shall deliver to the assessor, on or before the first day of August, 1871 and 1872, and every two years thereafter, the assessor's book of the last assessment of real estate, * * * and the assessor, so soon as he shall have completed his assessment for the year and made his assessor's book shall return” the same, etc.

This section, though so explicit, did not meet with compliance; for there was no land assessment or book for the year 1874 made or returned to the clerk as required by that section. True, the law provides that where an assessment of land is made, it shall stand good for two years, and that the assessment of the second year shall be based upon that of the first, but still, an assessment, though based on the former one has to be made out in a new book, and the old one returned to the clerk of the county court. The law knows but one assessor's book, which contains both the real and personal property, and of this book section 61, supra requires that the assessor make out and return to the county court a fair copy every year, and section 65 of the same chapter requires that the clerk of the county court make a fair copy of the assessor's book, authenticated by the seal of the court, and deliver the same to the collector. And if the land list for 1873 was not verified as required by law, as already seen, there could not be any valid basis on which to make out, either an assessor's book, or, an assessment, at least, so far as land was concerned for the year 1874.

Treating of proceedings of the nature now being discussed an eminent jurist and author remarks: “Of the necessity of an assessment no question can be made. Taxes by valuation cannot be apportioned without it. Moreover, it is the first step in the proceedings against individual subjects of taxation and it is the foundation of all which follow it. Without an assessment they have no support and are nullities. It is, therefore, not only indispensable, but in making it the provisions of the statute must be observed with particularity. If this were not compulsory, if the officers were to be at liberty...