Boonville Nat. Bank v. Schlotzauer, County Collector

• Citation: 298 S.W. 732
• Decision Date: 27 September 1927
• Docket Number: No. 27971.,27971.
• Parties: BOONVILLE NAT. BANK v. SCHLOTZAUER, COUNTY COLLECTOR, et al.
• Court: Missouri Supreme Court

298 S.W. 732

BOONVILLE NAT. BANK v. SCHLOTZAUER, COUNTY COLLECTOR, et al.

No. 27971.

Supreme Court of Missouri, in Banc.

September 27, 1927.

Appeal from Circuit Court, Cooper County; Henry J. Westhues, Judge.

Action by the Boonville National Bank against Oscar J. Schlotzhauer, County Collector of Cooper County, and others. From the judgment, plaintiff appeals. Reversed and remanded.

Montgomery, Rucker & Hayes, of Sedalia, for appellant.

Charles W. Journey and John H. Windsor, both of Boonville, for respondents.

Bryan, Williams & Cave, of St. Louis, for St. Louis Clearing House Ass'n, amicus curio.

GRAVES, J.

Plaintiff (appellant) is a national bank, located in Cooper county, Mo. The defendants are: (1) Collector of the revenue of Cooper county; (2) clerk of the county court of Cooper county; and (3) the judges of the county court of Cooper county. The action is in equity to enjoin the officers of Cooper county from collecting an alleged illegal tax upon the shares of stock of said bank. The tax is charged to have been upon a fraudulent assessment judgment. To avoid a multiplicity of suits, the bank sues for and in behalf of the shareholders. Counsel, amicus curiae, in a brief filed, have thus shortly outlined the petition:

"The petition alleges: (1) That plaintiff is a corporation engaged in the banking business in Cooper county, Mo.; (2) that defendants are the taxing authorities of Cooper county; (3) that on June 1, 1925, plaintiff made a return under section 12775 of its assets and listed same at their actual value, to wit, $90,000; (4) that the assessor assessed the shares of the plaintiff on the basis of 90 per cent. of said $90,000 and therefore at 90 per cent. of the true value in money of such shares; (5) that the assessor at the same time assessed all other real and personal property in Cooper county at only 75 per cent. of its true value in money, and that such other property was of the same class for purposes of taxation as plaintiff's shares and should be subject to the same tax; (6) that the plaintiff appealed therefrom to the county board of equalization and was denied relief; (7) that the state board of equalization raised the valuation of plaintiff's shares to 100 per cent. of their true value in money, but at the same time left all the other property, real and personal, assessed at only 75 per cent. of its true value in money, and that its action and the action of the assessor and the action of the county board of equalization was a deliberate, systematic, intentional, and arbitrary discrimination against the plaintiff and its shareholders; (8) that thereafter a tax was levied based upon said assessment of plaintiff's shares at 100 per cent. of their true actual value in money, and a tax was levied on all other property on the basis of only 75 per cent.; (9) that the plaintiff thereafter made a tender of 75 per cent. of the tax so assessed against its shares; (10) that the Constitution of Missouri provides that all taxes shall be uniform on the same class of property and that all property shall be taxed in proportion to its true value, and that the Constitution of the United States provides that no state shall deny to any person the equal protection of its laws; (11) that the taxing authorities deliberately, intentionally, systematically, and arbitrarily valued and assessed the plaintiff's shares at 100 per cent. of their true value in money, and at the same time deliberately, intentionally, systematically, and arbitrarily assessed all the other property of the same class in Cooper county at only 75 per cent. of its value, all in violation of said constitutional provision; (12) that the plaintiff had exhausted its remedy.

"On these allegations the plaintiff prays that the taxing authorities be enjoined from collecting from it any more than 75 per cent. of the tax assessed against said shares.

"In short, in looking to those allegations of the petition which go to the merits, the petition alleges as plainly and clearly as can be alleged that the taxing authorities intentionally and systematically valued and assessed and taxed plaintiff's shares at 100 per cent. while at the same time intentionally and systematically assessing all other property in the county at only 75 per cent. of its true value, and that plaintiff had sought relief at the hands of all administrative boards created under the statutes for granting relief, and had been denied relief by all such boards.

"And so the plaintiff comes to a court of equity for relief against such intentional and systematic value of its property at 100 per cent., while at the same time undervaluing all other property and assessing it at only 75 per cent."

Further details of the petition can be given, if necessary.

To this petition was filed a general demurrer, which was sustained by the trial court and a judgment entered dismissing plaintiff's bill in equity. The questions presented are, therfore, purely questions of law upon the facts admitted to be true by the demurrer.

It is not claimed that the shares of stock were assessed in excess of their cash value, but the real claim is that there has been a fraudulent discrimination against the plaintiff, bank, and its shareholders, in that all other property in the county was assessed at only 75 per cent. of its cash value, whilst the bank's shares of stock were assessed at their full value. The difference in the tax thus made possible, it is sought to restrain the collection thereof by this action in injunction.

The remedy used by plaintiff is attacked as not being proper by respondents, and numerous other questions raised—all of which can be noted in the course of the opinion.

I. At the threshold lies the question of remedy. Respondents contend that certiorari is the sole remedy. Appellants say such remedy is not adequate, in that it only brings up for review the record, and that the unjust discrimination can only be shown by matters dehors the record of any board of equalization. We shall not incumber this opinion with the discussion of a mass of irrelevant rulings. We shall first get the facts, and then discuss only such cases as have ruled upon a similar state of facts. There is no claim that there has been any discrimination in assessment a shares as between plaintiff (a national bank) and the state banks or other moneyed institutions in Cooper county, so that section 5219, U. S. Revised Statutes (12 USCA § 548), and cases ruling upon such section, are not in this case at all. The gist of this case lies in subdivision IX of the petition, which reads:

"That the taxing authorities aforesaid deliberately, intentionally, systematically, and arbitrarily valued and assessed the plaintiff's property as represented by its shares of stock at 100 per centum of its true value in money, and deliberately, intentionally, systematically, and arbitrarily undervalued and assessed all other property which is subject to an ad valorem tax in Cooper county and in the same class, for the purposes of taxation, at only 75 per centum of its true value in money; that each action by the taxing authorities was a discrimination against and a fraud upon the shareholders of the plaintiff bank and places an unjust and unequal burden of taxation upon the said shareholders, and that part of the taxes sought to be collected by the defendants from the plaintiff herein, which is based on valuation and assessment in excess of 75 per centum of the true value in money of the shares of stock in the plaintiff bank and which amounts to $401.08, is illegal and void because the said deliberate, intentional, systematic, and arbitrary undervaluation of all other property and its assessment at 75 per centum of its true value in money and the said deliberate, intentional, systematic, and arbitrary valuation of the property of the plaintiff, as represented by its shares of stock at 100 per centum of its true value in money, violates section 3 of article 10 of the Constitution of Missouri, requiring uniformity of taxation upon the same class of subjects within the territorial limits of the authority levying the tax, and violates section 4 of article 10 of the Constitution of Missouri, requiring that all property shall be taxed in proportion to its value, and violates section 1 of article 14 of the [Amendments to the] Constitution of the United States in that it deprives the plaintiff's shareholders of the equal protection of the laws and deprives them of their property without due process of law."

The facts thus pleaded are the admitted facts of this case. That such facts show a deliberate, unlawful, and fraudulent discrimination as between and against plaintiff bank and its shareholders and other property owners in Cooper county (the taxing district in this case), there can be no question. That certiorari to the state board of equalization or to the county board of equalization would be wholly inadequate, there can be no question. The real gist of this case lies in matters entirely dehors the record of these boards of equalization. They go back to the assessor of the county, who is an important cog in the wheel of assessment and taxation. He is one of the taxing authorities of the county and state. His acts enter into the legal scheme of assessment of property to be taxed ad valorem, and his acts (righteous or fraudulent) enter into the final judgment of assessment.

Upon the question of certiorari being an adequate remedy, we are cited to Bank v. Staats, 155 Mo. 55, 55 S. W. 626; State ex rel. v. Springer, 134 Mo. 212, 35 S. W. 589; State ex rel. v. Bank of Neosho, 120 Mo. 161, 25 S. W. 372; Meyer v. Rosenblatt, 78 Mo. 405; and Potosi v. Casey, 27 Mo. 372; but these cases do not rule a state of facts that we have in the case before us. The uppermost question here (stated, supra) is not in those cases at all; except Bank v. Staats, supra. State ex rel. v. Bank of Neosho was a suit for taxes and not one in equity asking for...