State ex rel. and to Use of Parman v. Manring

• Decision Date: 03 March 1933
• Docket Number: 29569
• Citation: 58 S.W.2d 269,332 Mo. 235
• Parties: State of Missouri at the Relation and to the Use of Orville S. Parman, Ex Officio Collector of the Revenue In and For the County of Gentry and State of Missouri, v. E. J. Manring, Appellant
• Court: Missouri Supreme Court

58 S.W.2d 269

332 Mo. 235

State of Missouri at the Relation and to the Use of Orville S. Parman, Ex Officio Collector of the Revenue In and For the County of Gentry and State of Missouri, v. E. J. Manring, Appellant

No. 29569

Supreme Court of Missouri

March 3, 1933

Appeal from DeKalb Circuit Court; Hon. Guy B. Park, Judge.

Affirmed.

F P. Stapleton for appellant.

(1) For taxation purposes real estate cannot be considered within the boundary of a consolidated school district unless said real estate is actually within the boundary of the plat, on which said district is formed. Sec. 11259, R. S. 1919; State ex inf. Thompson, Prosecuting Attorney ex rel. Pregh, v Bright, 298 Mo. 349; State ex rel. School Districts Nos 52 & 53 of Cass County v. Wright, 270 Mo. 383; State ex rel. Hilbert, Prosecuting Attorney of Lewis County, v. Glaves, 268 Mo. 108. (2) Taxation and revenue laws are strictly construed and any ambiguity or doubt is resolved in favor of the person upon whom it is sought to impose the burden. 25 R. C. L. sec. 307, p. 1092; United States v. Isham, 17 Wall. 496, 21 U.S. (L. Ed.) 728; East Livermoore v. Livermoore Falls Trust Co., 103 Me. 418; McGannon v. State, 33 Okla. 145; In re Estate of Clark, 270 Mo. 351; State ex rel. Compton v. Buder, 308 Mo. 253; State ex rel. Union Electric L. & P. Co. v. Baker, 316 Mo. 853; State ex rel. Am. Cent. Ins. Co. v. Gehner, 315 Mo. 1126. (3) The land of the appellant, not being in Consolidated School District No. 1, same should be taxed for school purposes at the statutory rate for unincorporated territory. R. S. 1919, sec. 11183.

C. E. Ernst, E. G. Robison and W. F. Seevers for respondent.

(1) The plat of a consolidated school district is not, of itself, conclusive as to the boundaries of the consolidated school district admittedly legally organized. State ex rel. School Districts Nos. 52 and 53 of Cass County v. Wright, 270 Mo. 385; State ex rel. Hilbert, Prosecuting Attorney of Lewis County, v. Glaves, 268 Mo. 108; Secs. 11259, 11261, R. S. 1919. (2) The land of appellant, consisting of only 81.17 acres of unimproved land, being the only remaining part of common school district No. 82 that would be left out of the incorporation of Consolidated School District No. 1, if a division of the said school district No. 82 was contemplated by the county superintendent of schools, such division would be in contravention of the law relating to the formation of consolidated school districts. Sec. 11261, R. S. 1919. (3) Since the land of appellant, under the law, must be within the boundaries of Consolidated School District No. 1, it is subject to taxation in said Consolidated School District No. 1, at the same rate as all other property in said district. Secs. 11257, 11183, R. S. 1919. (4) Grand River being the northwest boundary of common school district No. 82 and the intention of the county superintendent of schools being to include all of said common school district No. 82 in the formation of Consolidated School District No. 1, the apparent deviation of the line on the plat filed and posted by the county superintendent of schools from the actual location of Grand River, the difference being slight, and Grand River being a permanent monument of boundary, the presumption will prevail that the line of the plat follows the course of Grand River, since the act of the county superintendent of schools would have been in violation of the law should it be held that the line on the plat runs as contended by appellant. Sec. 11261, R. S. 1919; State ex rel. Rawlings v. Kansas City, 213 Mo.App. 349; School District, No. 42, Audrain County, v. School District No. 45, Audrain County, 254 S.W. 7, 212 Mo.App. 670. (5) The authority conferred upon public officers by law must be exercised in the manner prescribed by law. Nat. Surety Co. v. Sand Springs State Bank, 177 P. 574, 74 Okla. 176. (6) Where permanent monuments like well defined watercourses constitute boundary lines, no courses or distances being called for, and no quantity of land being described further than all of school district No. 82, the permanent monument will control. State ex rel. School Districts Nos. 52 and 53 of Cass County v. Wright, 270 Mo. 386; Smith v. Catlin Land and Imp. Co., 117 Mo. 444.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This case comes to the writer on reassignment. It is a tax suit by the State at the relation of the ex officio Collector of Gentry County, and raises the question whether certain land is in Consolidated School District No. 1 in Miller Township, Gentry County, and is liable for taxation for school purposes in that district. There was judgment for the collector for the full amount of the suit. Defendant by his appeal brings up the issue of the validity of so much of the judgment as covers the Consolidated School District taxes. He contends that his land is not in the consolidated district, that it is unincorporated territory and therefore is only liable for a school tax of forty cents on the one hundred dollars valuation.

The cause, by change of venue, went from Gentry County to DeKalb County and was tried on an agreed statement of facts. By the agreement the parties admitted that Orville S. Parman was ex officio collector of the revenue of Gentry County, and that Gentry County legally adopted township organization. The other facts contained in the agreed statement were as follows:

"It is agreed that the defendant is the owner of the following described real estate in Miller Township in Gentry County, Missouri, Tract No. One, Lots Five and Six of the Northwest quarter of Section Seven, Township Sixty-one of Range Thirty. Tract No. Two, the south half of the southeast quarter of the northwest quarter and the northwest quarter of the southeast quarter of the northwest quarter of Section Seven, Township Sixty-one of Range Thirty.

"It is agreed that all the steps taken leading up to the assessment of said land and the extension of the tax were regular and legally taken, subject to the question as to whether or not said land was properly assessed in said Consolidated School District, No. One. It is further agreed that if said land was properly assessed in said District that the amount of taxes and the penalty and cost thereon as set out in plaintiff's petition is correct.

"It is further agreed that Consolidated School District No. One of Gentry County, Missouri, was organized on the 24th day of February, 1920; that Exhibit 1 hereto attached and made a part hereof by reference is the original plat of said Consolidated School District as voted upon and which was filed in the office of the County Clerk of said county. It is agreed that Exhibit 2 hereto attached and made a part hereof by reference is a plat of Section Seven, Township Sixty-one of Range Thirty, Gentry County, Missouri, showing the land in question and the location of Grand River in said Section.

"It is further agreed that the north boundary of said Consolidated School District where the same enters said Section Seven is Grand River and that the north boundary of said Consolidated School District where the same enters Section Twelve, Township Sixty-one of Range Thirty-one (said Section 12 being immediately west of said Section 7) is Grand River.

"It is further agreed that prior to the organization of said Consolidated School District, the land herein described was in School District No. 82 of said county, and that it was the intention of the county superintendent of schools of said county, who drew said plat, to include within the boundaries of said Consolidated School District all of said District No. 82, and it is further agreed that the petition filed with the superintendent of schools included said school District No. 82.

"It is further agreed that at the time of the organization of said Consolidated School District there was some question as to whether the land hereinbefore described was in said District No. 82, due to the fact that some time prior thereto said land had been assessed in an adjoining district across the said Grand River from said District No. 82, but that taxes even in those years was credited to and paid to the benefit of said District No. 82.

"It is further agreed that if said land consisting of 81.17 acres of unimproved land hereinbefore described is not in said Consolidated School District No. One, then it is the only part of said District No. 82 that is not included in the boundaries of said Consolidated School District.

"It is further agreed that the north and west boundaries of School District No. 82 in said Section Seven was Grand River."

It was further agreed that the grantor of the defendant, M. L. Manring, paid the consolidated district school taxes for the year 1920 in ignorance of the fact that the plat did not include said land; that said grantor paid the school taxes for 1921 under protest; that the defendant and his grantor for the years 1922, 1923, 1924, 1925 and 1926, made timely tender to the township collector of that amount which would have been due on said land for school taxes had the same been assessed as unincorporated territory, but that said tender was refused; that said tender has been renewed in said suit and has been refused; that if defendant's land is in Consolidated School District No. One, then the plaintiff should recover $ 407.61 for taxes and penalty and $ 40.08 costs, and that, if said land is not in said District then plaintiff should recover $ 113.72 for said taxes the amount tendered.

There was in evidence a notice of the superintendent of public schools of Gentry County calling a meeting of the qualified voters of the proposed consolidated District No. 1 for February 24, 1920, to organize the district "with boundaries as laid...