City of Stanberry v. Jordan

• Decision Date: 06 July 1898
• Citation: 145 Mo. 371,46 S.W. 1093
• Parties: CITY OF STANBERRY v. JORDAN et al.
• Court: Missouri Supreme Court

46 S.W. 1093

145 Mo. 371

CITY OF STANBERRY v. JORDAN et al.

Supreme Court of Missouri, Division No. 1.

July 6, 1898.

TAXATION — ASSESSMENT OF PRIVATE BANK — CONSTRUCTION OF STATUTE — EXCESSIVE LEVY — ACTION AGAINST COLLECTOR — AGREED STATEMENT OF FACTS — JURISDICTION OF APPEAL.

1. An appeal from a judgment in favor of a city, and against the collector thereof and the sureties on his official bond, for failure to collect certain taxes, was properly before the supreme court, where the construction of the act of April 1, 1891 (Laws 1891, p. 195), amending the statute concerning the revenue, was involved, and where it was urged that the levy in question was in excess of the constitutional limit.

2. The statute of 1889, relating to the revenue, after providing for the assessment of manufacturing and other corporations, and the shares of stock of incorporated banks, required that "private bankers * * * shall in like manner make return of all moneys or values of any description invested in or used in their business, which shall be taxed as other personal property." The act of 1891 (Laws 1891, p. 195) directs that the property of manufacturing companies and certain other corporations shall be assessed and taxed as that of individuals, and requires the assessment of the shares of stock in incorporated banks to the owners thereof, and provides that "private bankers * * * shall make like returns, and be assessed thereon as hereinbefore provided." Held, that the assessment of the property of a co-partnership of private bankers, in the business name adopted by them, was valid, as such act of 1891 made no change as to the party to whom such property should be assessed.

3. A claim that the rate of taxation exceeded constitutional limits was not based on sufficient facts, where nothing was shown except that such rate exceeded 50 cents on each $100 valuation, and that such excess was for "sinking fund and interest."

4. In an action by a city for the failure of its collector to enforce the payment of a certain tax, plaintiff was not entitled to recover where it did not affirmatively appear that proper authority was ever given him to compel payment thereof.

5. A judgment in an action submitted on an agreed statement of facts cannot be allowed to stand, where the facts stated are insufficient to sustain it.

Appeal from circuit court, Gentry county; C. A. Anthony, Judge.

Action by the city of Stanberry against S. M. Jordan and the sureties on his official bond as collector of said city. From a judgment for plaintiff, defendants appeal. Reversed.

McCullough, Peery & Lyons, for appellants. Aleshire & Benson, for respondent.

WILLIAMS, J.

Defendant Jordan, in the year 1893, was collector of the city of Stanberry. The other defendants are sureties on his official bond. This suit is for an alleged breach of duty upon his part, in failing to collect certain taxes levied by the city for said year upon the "Bank of Stanberry," amounting to $67.19. The petition alleges that plaintiff is a city of the fourth class; that defendant Jordan was elected collector thereof on the 5th of April, 1892, for a term of two years; that he duly qualified, and defendants executed the bond sued on, dated May 9, 1892, conditioned for the faithful performance of his official duties; that there was levied, by the board of aldermen of said city, a tax of $67.19, for the year 1893, against the Bank of Stanberry; that defendant Jordan, as collector, failed, refused, and neglected to collect the same; and that the city was damaged to the amount of said tax. The answer admitted the execution of the bond, but denied the other allegations. The case was submitted to the court upon an agreed statement of facts. This agreement admitted: (1) The election and qualification of Jordan as collector, and the execution by defendants of the bond sued on. (2) That there was assessed for the year 1893, against the "Bank of Stanberry," a city tax of $100.78; that this was under an ordinance of said city providing for a levy, for said year, of five mills on the dollar for the "General Revenue Fund," and 2½ mills on the dollar for the "Interest and Sinking Fund"; that plaintiff was only seeking to recover the tax for the general revenue fund; and that, if the finding was in its favor, the judgment should be for $67.19, the amount due that fund. (3) "It is further agreed that the property of the Bank of Stanberry for the taxes of 1893 was listed and given in to the assessor in the name of the Bank of Stanberry, and sworn to by A. L. Tomblin, who was cashier of said bank at that time, and that the county clerk, in furnishing the mayor of Stanberry a certified copy of the assessment for the year 1893, certified this assessment as follows, `Bank of Stanberry. A. L. Tomblin and Ed. Sayer, Proprietors;' but that the city clerk of Stanberry, in extending the taxes for the year 1893, extended the same on the collector's tax book, `Bank of Stanberry' only, being followed with the valuation and total amount of taxes." (4) It is further agreed that the taxes in question became delinquent October 1, 1893, and that from that date until February 1, 1894, the Bank of Stanberry had sufficient property out of which the same could have been collected. (5) That the levy of 2½ mills on the dollar for interest and sinking fund was questioned, but defendant collected the same from numerous taxpayers, and paid it to the city treasurer. And (6) that the owner of said bank had become a nonresident, and at the time of the suit owned no property out of which the taxes could be made; "and plaintiff contends that the defendant is liable on his bond for failure to collect such taxes; and defendant contends that a valid assessment could not be made against the Bank of Stanberry; and, if the same was valid, he could not collect the taxes due from said bank of Stanberry by seizing upon the personal property of said bank or its former owner; hence he is not liable on his bond." Plaintiff recovered in the lower court. Defendants appealed, and ask a reversal upon several grounds, which will now be considered.

1. The assessment is challenged. It is claimed that it was improperly made against the "Bank of Stanberry." This requires the examination and construction of the act of April 1, 1891 (Sess. Acts 1891, p. 195), amending the statute concerning the "assessment and collection of the revenue." It is further urged here, and was in the lower court, that the levy exceeds the constitutional limits. This court has appellate jurisdiction in cases where the construction of the constitution or of the revenue laws is involved. Hence it is that this appeal is properly before us.

2. The statute provides for the assessment of the shares of stock in an incorporated bank, and not of the bank itself. These shares must be assessed to the owner thereof. While the officers of the bank are required to deliver a list of the shareholders to the assessor, and the number of shares held by each, yet it is the owner of the stock who is to be assessed, and not the corporation. City of Springfield v. Bank, 87 Mo. 441; State v. Catron, 118 Mo. 280, 24 S. W. 439. It is not stated definitely in the agreed facts whether the Bank of Stanberry is a corporation, or that was merely the name adopted by a co-partnership of individuals for a private bank conducted by them. The statement mentions two parties as the "proprietors" of the bank, and in other places refers to the "owner" thereof. It seems probable that it was not incorporated. In State v. Bank of Neosho, 120 Mo. 161, 25 S. W. 372, Sherwood, J., said: "Section 922, to which reference has been made in mentioning the requirements...