Brinkerhoff-Faris Trust & Savings Co. v. Hill

• Decision Date: 28 September 1931
• Citation: 42 S.W.2d 23,328 Mo. 836
• Parties: Brinkerhoff-Faris Trust & Savings Company, Appellant, v. Walter O. Hill, Treasurer and Ex Officio Collector of Henry County
• Court: Missouri Supreme Court

42 S.W.2d 23

328 Mo. 836

Brinkerhoff-Faris Trust & Savings Company, Appellant, v. Walter O. Hill, Treasurer and Ex Officio Collector of Henry County

Supreme Court of Missouri

September 28, 1931

Appeal from Henry Circuit Court; Hon. W. L. P. Burney Judge.

Reversed and remanded (with directions).

Montgomery & Rucker, of Sedalia, for appellant.

N. B Conrad, of Montrose, Frederick F. Wesner, of Sedalia, and C A. Calvird, Jr., of Clinton, for respondent.

Stratton Shartel, Atty. Gen., and L. Cunningham, Asst. Atty. Gen., amici curiae.

Gantt, J. All concur, except Ellison and Henwood, JJ., not sitting.

OPINION

GANTT

This case came to me on reassignment. Action to enjoin defendant from collecting alleged excessive taxes. Judgment for defendant and plaintiff appealed. The case was argued and submitted at our April Term, 1929, and we affirmed the judgment. [323 Mo. 180, 19 S.W.2d 746.] The United States Supreme Court granted certiorari, reversed the judgment of this court and remanded the cause for further proceedings not inconsistent with the opinion of that court. Our former decision was not upon the merits, but upon plaintiff's right to maintain the action. The United States Supreme Court held that decision to be erroneous. At our October Term, 1930, the case was re-argued on the merits and assigned for an opinion. It is unnecessary to consider the powers of the State Tax Commission. The ruling on that question in our former opinion was not affected by the decision of the United States Supreme Court. That court fully recognized the authority of this court to overrule the case of the Laclede Land & Improvement Co. v. State Tax Commission, 295 Mo. 298, 243 S.W. 887, and to decide that the Tax Commission was authorized to hear and determine the complaint of plaintiff, subject to the approval of the State Board of Equalization. The reversal was based solely upon the ground that plaintiff was denied due process of law as guaranteed to citizens of the United States by the Fourteenth Amendment to the Federal Constitution. In other words, the refusal of a hearing on the merits was held to be a denial of due process of law for the reason plaintiff was not authorized, in view of the decision in the Laclede case (which then had not been overruled), to apply to the Tax Commission for relief. We adhere to our rulings in the former opinion, except insofar as such opinion is in conflict with the decision of the United States Supreme Court. Therefore, our former opinion is to the extent adhered to made a part of the present opinion.

It should be noted that the only substantial difference between this case and the case of Boonville National Bank v. Schlotzhauer, 317 Mo. 1298, 298 S.W. 732, insofar as the pleadings, the facts and the relief sought are concerned, is that in this case the facts must be determined from the evidence, while in the Schlotzhauer case the facts alleged in the petition were admitted by the demurrer.

It should also be noted that in the former opinion we said: "It is doubtful whether the evidence in this case warrants a finding that the local assessor intentionally and systematically undervalued real estate and personal property listed with him, other than bank stock." As our former decision was not based upon a finding of the facts, the foregoing statement was not necessary to a disposition of the case, and hence not controlling on the issues of fact. Thus we are free to review the evidence and make such findings as we deem proper.

It should also be noted that taxes were levied against the shareholders of plaintiff amounting to $ 2648.24 for the year 1927. Plaintiff admits that 75 per cent of said tax, amounting to $ 1986.18, is lawful and valid, but contends that the amount in excess thereof is illegal and void. It tendered to the township collector for Clinton Township said sum, which was refused as payment in full of its taxes for said year.

The foregoing has reduced the issues to the contention that the township assessor intentionally and systematically discriminated against plaintiff in the assessment of its shares by assessing said shares at one hundred cents on the dollar and assessing practically all other property in the township at seventy-five cents on the dollar.

I. At this point defendant contends that plaintiff is not in position to complain, for the reason its bank stock was not assessed at its true value in money. He admits that said stock and the stock of other banks in the county were assessed as directed by Section 9765, Revised Statutes 1929, but contends that the stock of plaintiff bank could have been sold at a premium, and in that event the assessment would not represent the value of the stock. The stock of plaintiff bank was assessed at $ 144 a share. The only evidence on the question was the testimony of the president of plaintiff bank. He testified that he would not sell any of his stock at that price, for the reason he might lose control of the bank. He further testified that he knew of no sales, except when someone died owning stock, and that the last sale was at $ 120 a share. The evidence does not sustain the contention. The stock was assessed at one hundred per cent of its value, as the statute directs such value to be ascertained. The contention is overruled.

II. We next consider the evidence to sustain the charge of under valuation of real estate. It is summarized as follows:

George Holliday of Clinton, Henry County, abstractor of title, president of the Citizens Bank for twelve years and president of two building and loan associations for six years, testified that he was familiar with the valuation of real estate in Clinton Township; that he made a card abstract of each transfer of real estate in said township from January 1, 1926, to December 31, 1926; that the cards stated the consideration named in the deed, the encumbrance, if any, and the assessed valuation of the real estate as of June 1, 1926; that after completing the card abstract he classified them into those stating the consideration, those for one dollar and love and affection, and those for one dollar and other valuable considerations; that if a substantial consideration was not given, he supplied it in most instances from his knowledge or from information on inquiry; that he then totalled the considerations and the assessed valuations, and the result showed that said real estate was assessed at only sixty per cent of the considerations named in the cards.

H. P. Faris of Clinton, Henry County, since 1867, and president of plaintiff bank, with which he had been connected for fifty-five years, testified that his duties required him to inspect farms and determine values; that he bought and sold a large amount of real estate; that he had conducted sales and exchanges of real estate for others and that he knew the value of real estate in said township on June 1, 1926; that he examined and verified the card abstracts, assisted in tabulating and examining the information obtained from them, assisted in obtaining information as to considerations not named in the deeds, and that they obtained this information in all but a few instances; that a few transfers were the result of foreclosures, partitions, deeds among heirs and sales by non-residents, and the consideration for these transfers was less than the assessed valuation of the real estate; that based upon information obtained from the card abstracts and upon his knowledge of real estate values and assessed valuations of real estate in said township, he was of the opinion that real estate in said township was assessed at only sixty-five per cent of its actual value.

W. M Stephens of Henry County for sixty years, county treasurer four years, recorder four years and in the real estate and loan business therein for twenty-eight years, testified that his business required him to familiarize himself with the values of real estate in Clinton Township; that he was often required to investigate its assessed valuation, and that based on his experience and knowledge, it was his opinion that real estate was assessed in said township at...