City of Mexico v. Cauthorn

• Decision Date: 28 March 1887
• Parties: CITY OF MEXICO TO USE OF COLLECTOR, Appellant, v. B. R. CAUTHORN, EXECUTOR OF ESTATE OF DANIEL CORKER, DECEASED, Respondent.
• Court: Kansas Court of Appeals

25 Mo.App. 285

CITY OF MEXICO TO USE OF COLLECTOR, Appellant, v. B. R. CAUTHORN, EXECUTOR OF ESTATE OF DANIEL CORKER, DECEASED, Respondent.

Court of Appeals of Missouri, Kansas City.

March 28, 1887

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Affirmed.

The case is stated in the opinion.

W. B MCINTYRE, S.W. BUCKLEY, for the appellant.

I. The authority of the city of Mexico to make the assessment, and levy and collect the tax for which this suit was instituted is contained in the first clause of section 1, of article 6 of the city charter, and reads as follows: " The city council shall have the power to levy and collect taxes upon all property, real and personal, taxable by law, for state purposes, except such as may be exempt by law, within the limits of the corporation, not to exceed one per cent. upon the assessed value thereof, in manner to be previously provided by ordinance not repugnant to the laws of the state of Missouri, or this act, to defray the contingent and other expenses of the city, not otherwise in said charter provided for."

II. The money and notes belonging to the estate of said Daniel Corker, deceased, are subject to assessment and taxation at the place of his last domicile. Stephens, Adm'r, v Boonville, 34 Mo. 323; Corn v. City of Cameron, 19 Mo.App. 573.

III. The court clearly erred in refusing the declaration of law asked by plaintiff. Daniel Corker having been a resident of the city of Mexico at the time of his death, and for two years immediately prior thereto, the money and notes in the hands of his executors, and belonging to his estate, are subject to taxation by the city, regardless of where the executor may reside. The appellate courts of this state have so held whenever the question has been squarely presented. Furthermore, such is the doctrine now held by the courts of other states, and by respectable text-writers. This being the only point in question, it is not worth while to argue the case at length. If our position be correct, the city of Mexico is entitled to the amount sued for, and should have had judgment therefor in the circuit court.

MACFARLANE & TRIMBLE, for the respondents.

I. The petition alleges that the city of Mexico was incorporated under special acts of the legislature, and was empowered by said special acts " to levy and collect taxes upon all property * * * within the city limits. " There was no evidence to sustain this allegation of the petition. There was no evidence offered, tending to prove that the said city had any authority of law whatever to levy or collect taxes upon any property whatever. The courts cannot take judicial notice of special acts of the legislature, but such enactments, when relied upon for recovery, must be pleaded and proved like any other essential fact in the case.

II. The petition alleges " that said city, by its assessor, H. O. Smith, assessed for the year 1885, the personal property of the estate of said Daniel Corker, deceased, at the sum of twenty-five thousand dollars." This allegation of the petition was admitted to be true upon the trial. But the petition alleges further, " that a tax was, by said city of Mexico, duly levied on said assessment, which tax amounts to the sum of one hundred and fifty dollars. " There was no evidence offered to sustain this essential allegation. There was no evidence tending to show that the city had ever levied any tax on the assessment, and, of course, nothing to show the rate of the levy, nor the amount of taxes, due under the levy. The trial court could not presume, without evidence, that a levy had been made upon the admitted assessment, neither could it find, without evidence, the rate of the levy so as to ascertain the amount of the tax.

III. Assuming for the purposes of this point that it had been proved on the trial that said city had " the power to levy and collect taxes upon all property, real and personal, taxable by law for state purposes, within the limits of the city, " as alleged in the petition, yet it was an undisputed fact that the property here sought to be taxed was both actually and constructively outside of the " city limits." The peculiar wording of the taxing power, as set out in the petition, would seem to exclude all property whose actual situs was outside of the corporate limits of the city. The action of the trial court, in refusing the declaration of law asked by plaintiff, if error at all, was a harmless one, because the judgment must have been for the defendant, no matter what view the court took of the question of law presented by that declaration, for the reasons suggested in the first and second points.

MCINTIRE & BUCKLEY, in reply.

I. In reply to the first point raised by respondent, it may be said that the special act, by virtue of which the city of Mexico is empowered to collect the tax sued for, was properly pleaded by its title and date of passage; therefore, the courts will take judicial notice thereof. Rev. Stat., sect 3549; State ex rel. v. Odle, 42 Mo. 214; Apitz v....