City of Stanberry v. Jordan
| Decision Date | 06 July 1898 |
| Citation | 46 S.W. 1093,145 Mo. 371 |
| Parties | City of Stanberry v. Jordan et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Gentry Circuit Court. -- Hon. Cyrus A. Anthony, Judge.
Reversed and remanded.
McCullough Peery & Lyons for appellants.
(1) The petition does not allege that the defendant Jordan ever had in his hands or that there was ever delivered to him, any properly certified and authenticated tax book, or any other legal warrant or authority to collect said tax. Unless such process was put into his hands by the proper authorities, he could not lawfully have collected the tax, nor could his sureties be held liable for his failure so to do. He must have a process before he can be held guilty of a breach of official duty in not executing it. Mechem on Officers, secs 689 to 694; R. S. 1889, secs. 7576, 7598, 7599, 7602, 1603 1604 and 1607; Warrensburg v. Miller, 77 Mo. 56; Railroad v. Apperson, 97 Mo. 300; Brown v. Harris, 52 Mo. 306; 25 Am. and Eng. Ency. of Law, pp. 292 to 297; State v. Thomas, 17 Mo. 506. (2) The petition alleges that the tax was assessed and carried out on the city books against the "Bank of Stanberry." This was a void and illegal assessment. Sess. Acts 1891, p. 195; Springfield v. Bank, 87 Mo. 441; Lionberger v. Rowse, 43 Mo. 67; Bank v. Meredith, 44 Mo. 500; State ex rel. v. Catron, 118 Mo. 280. (3) Under the act of 1891 there is no distinction between a private and an incorporated bank, and hence the assessment was void. If void, the collector could not be required to collect it. Cooley on Taxation, pp. 500, 501; Weimer v. Bunburg, 30 Mich. 201; State to use v. Shacklett, 37 Mo. 380; Railroad v. Shacklett, 30 Mo. 550; Warrensburg v. Miller, 77 Mo. 56; Brown v. Harris, 52 Mo. 306; Mechem on Officers, secs. 689 et seq. (5) Such defects in the petition are not cured by verdict. Bank v. Franklin Co., 65 Mo. 105; Inhabitants v. Williams, 53 Mo. 141; Frazer v. Roberts, 32 Mo. 457; Jones v. Fuller, 38 Mo. 363; Wells v. Mut. Ben. Ass'n, 126 Mo. 639. (6) An agreed statement of facts must contain, without any ambiguity, omission or uncertainty, all the facts necessary to a recovery. If there be any ambiguity, any omission of facts necessary to a recovery, or any substantial lack of clearness and certainty on material points, no judgment can be rendered on it. And the burden is on the party seeking to recover to show his right of recovery from the facts as stipulated. Gage v. Gates, 62 Mo. 412; Moore v. Henry, 18 Mo.App. 35; Ford v. Cameron, 19 Mo.App. 457; Appleman v. Am. Sport. Goods Co., 64 Mo.App. 71; Carr v. Coal Co., 96 Mo. 149; Smith v. Railroad, 47 Mo.App. 546; Land Co. v. Combs, 53 Mo.App. 298; Land Co. v. Hays, 105 Mo. 143; Hughes v. Moore, 17 Mo.App. 148; Robidoux v. Casselige, 81 Mo. 459; Burress v. Park. Imp. Co., 55 Mo.App. 381; Field v. Railroad, 21 Mo.App. 600.
Aleshire & Benson for respondent.
(1) The petition is not defective, as it sets out in haec verba the condition of the bond, which is also filed with the petition as an exhibit. Measured by the standard laid down in State ex rel. v. Williams, 77 Mo. 467, cited by appellant, the petition is good. State ex rel. v. Pace, 34 Mo.App. 458. (2) Revised Statutes of 1889, sections 7576, 7598 and 7602, cited by appellant, have no connection with collectors of cities of the fourth class, and sections 1603, 1604 and 1607 are absolutely silent and wanting as to appellant's contention, and the law nowhere requires the same exactness of city clerks and boards of aldermen as it does of county courts and county clerks. The practice of collecting the taxes which relates to the sale and seizure of the property is governed by the same rule as with county collectors. No warrant or authenticated tax books is mentioned as being a prerequisite for the collector in cities of the fourth class, and no such defense was made in the lower court. An inspection of the last paragraph in the agreed statement of facts shows conclusively that appellant's only defense to plaintiff's action was that a valid assessment could not be made against the Bank of Stanberry, and if it was valid it could not collect the taxes due from the Bank of Stanberry by seizure upon the personal property of said bank or its former owner. (3) There was levied against the Bank of Stanberry the tax in question, and if there was no such institution, appellant should not have waived that by agreement; but the agreed statement says that A. L. Tomblin was the cashier, and listed the property of the bank, and that admits the ownership. We think the case of State ex rel. v. Bank of Neosho, 120 Mo. 161, covers every phase of this case. (4) There is no ambiguity or uncertainty in the agreed statement, and we contend that appellant by the agreed statement has admitted all of the necessary ingredients to make himself liable for the neglect of duty, as alleged in the petition. (5) The collector was the officer of the city, and all the presumptions must be indulged in that he was equipped with all of the authority given to collectors. (6) It is claimed that the statement is silent as to the class the city of Stanberry belongs. The petition alleges it to be a city of the fourth class, and it is not denied under oath, and we assume that that will dispose of that objection. While plaintiffs are only seeking to collect a five mill levy, it is true the entire levy was legal and should lawfully be collected. (7) No vote of the people in a city of the fourth class was required to levy the additional tax for interest and sinking fund, but the appellant has confounded the law which provides for the vote of the people to make contracts. Lamar Waterworks v. Lamar, 128 Mo. 188.
Defendant Jordan, in the year 1893, was collector of the city of Stanberry. The other defendants are the 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 fifth 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:
First. The election and qualification of Jordan as collector, and the execution by defendants of the bond sued on.
Second. 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 two and one half 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.
Third. "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 '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."
Fourth. 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.
Fifth. That the levy of two and one half 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.
Sixth. That the owner of said bank had become a non-resident 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...
To continue reading
Request your trial