City of Cape Girardeau v. Buehrmann

• Decision Date: 21 February 1899
• Parties: CITY OF CAPE GIRARDEAU v. BUEHRMANN.
• Court: Missouri Supreme Court

49 S.W. 985

148 Mo. 198

CITY OF CAPE GIRARDEAU v. BUEHRMANN.

Supreme Court of Missouri, Division No. 2.

February 21, 1899.

TAXATION — ASSESSMENTS — VALIDITY.

1. An assessment for city taxes for one year, which described the property merely as personal property, was approved without objection, and the tax was extended and paid. Subsequently the assessor, acting under a city ordinance, made a back assessment, taking as a basis therefor the valuation for the previous year for state and county taxes. Held, that such back assessment was void for not showing on its face the specific property omitted from the former assessment.

2. Rev. St. 1889, §§ 7531, 7532, provide that, if a person required to list property is absent when the assessor calls, the latter shall leave a written or printed notice, requiring such person to make out a list. Section 7567 provides that, when an assessment is made in the absence of the head of the family, a duplicate list shall be left with some member. Held, that where the assessor gave a mere verbal notice, and left no duplicate of his assessment, the assessment was invalid.

Appeal from Cape Girardeau court of common pleas; Alex. Ross, Judge.

Action by the city of Cape Girardeau against Otto Buehrmann to recover taxes. From a judgment for plaintiff, defendant appeals. Reversed.

Robert L. Wilson, for appellant. Sam. M. Green and B. F. Davis, for respondent.

GANTT, P. J.

This is an action for city taxes, and involves a construction of the revenue laws of this state, and whether appellate jurisdiction is thereby conferred upon this court. The city of Cape Girardeau, at the time of the commencement of this action, was a city organized under a special charter, approved March 29, 1872 (Laws Mo. 1872, p 328), and as such had power to levy and collect taxes not exceeding three-quarters of 1 per cent. per annum upon all property, real, personal, or mixed, taxable by law for state and county purposes (Laws Mo. 1872, p. 332, art. 3, § 1). Annetta Buehrmann was a resident of said city prior to March, 1889, and during said month died in said city, testate, leaving a last will, by which she appointed defendant, Otto Buehrmann, her executor. On March 28, 1889, he qualified and took charge of her estate, which consisted of a few personal effects, household furniture, a few notes of small amounts which she held against her legatees, and 18 bonds of the city of Cape Girardeau, each of the par value of $500, and bearing 8 per cent. interest, aggregating at that time $9,000 principal and $1,080 interest, — total $10,080. These bonds were issued and bore date 1873, and were payable 30 years after date, or in 1903. They were known as "Normal School Bonds," and were issued by said city for the purpose of procuring the location of the Southeast Missouri Normal School in said city. The executor consumed all the personal estate except these bonds in paying allowances, taxes, and costs of administration. He duly advertised for his final settlement at the May term, 1891, of the probate court of said county. At said May term, on May 25, 1891, the executor filed his final settlement, which seems to have been amended at the October term, 1891, of the estate distributed, and vouchers filed. The final order of discharge was made January 6, 1892. This action is brought against the defendant in his individual capacity on an implied obligation. The city does not seek to charge the estate.

The fiscal year of the city of Cape Girardeau begins on the first Monday in May of each year, and ends the first Monday in May of the succeeding year. The defendant produced the receipt of the city collector, dated April 20, 1891, for the city taxes on the estate of Annetta Buehrmann for the fiscal year ending the first Monday in May, 1891, amounting to $35.87½. The petition contains two counts. The first count is for the taxes of the fiscal year 1891, and the second for the fiscal year 1892. The allegations of the first count are to the effect that it was the duty of defendant to return to the assessor the personal property of said Annetta's estate in his hands, his neglect to do so, and that because of said neglect the assessor, on the 17th day of June, 1891, did assess back the said personal estate for the fiscal year ending first Monday in May, 1891, to be of the value of $6,300, and thereupon, in accordance with certain ordinances of said city, taxes were extended on said personal property by the city register to the amount of $110.25. It is further alleged that the said taxes became delinquent on May 1, 1891, and defendant became liable to pay interest on the same at the rate of 1 per cent. per month from and after May 1, 1891; "that said defendant, after said taxes became due and delinquent, failed, neglected, and refused to pay the same, or any part thereof without any demand therefor being presented to the court having competent jurisdiction for allowance thereof, or in any other way, as it was his duty to do in accordance with the statutes in such cases made and provided." The second count is of like tenor and effect, save that it seeks to collect the taxes assessed for 1892 for the fiscal year ending May 1, 1892, and the taxes amount to $157.50. It appears that the executor paid the state and county taxes for the year 1890 on the basis of a valuation of $6,300.

1. Disposing of the taxes for the two years separately, that of 1891 presents this feature: It is conceded and established that Mrs. Buehrmann's estate was assessed for the fiscal year ending May, 1891, and the city taxes levied for that year amounted to $35.87½, which the executor paid April 20, 1891. It is not contended that when the assessor concluded he had not assessed all of the taxable property of the estate, and determined to assess back for that year, he gave the executor any notice of his intention to do so. The ordinance of the city provided that: "If by any means any personal property as contemplated by this ordinance, or any lot or part of lot or tract or part of tract of land, shall be omitted in the assessment of any year or series of years, and not put upon the assessor's book, the same, when discovered, shall be assessed by the assessor for the time being, and placed upon his book, with all arrearages of tax which ought to have been assessed and paid for in former years charged therein." The first assessment of Mrs. Buehrmann's estate for city taxes of 1891 described...