State ex rel. Davis v. Rogers

• Decision Date: 31 October 1883
• Parties: THE STATE ex rel. DAVIS v. ROGERS, Appellant.
• Court: Missouri Supreme Court

79 Mo. 283

THE STATE ex rel. DAVIS

v.ROGERS, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Clinton Circuit Court.--HON. GEO. W. DUNN, Judge.

REVERSED.

J. F. Harwood and Ramey & Brown for appellant.

J. M. Lowe for es ondent.

PHILIPS, C.

This is an action by the collector of Clinton county to recover taxes on personal property, with penalties and attorney's fee. The petition alleges in substance that the relator is collector of Clinton county, and that having legal authority therefor the officers and agents of said county assessed and levied certain taxes upon personal property of the defendant, to-wit: $5,000 in lawful money, the same being the amount of defendant's capital used by him in carrying on a private bank in the town of Cameron in said county, and known as the Park Bank. These assessments run through the years from 1873 to 1878. The petition alleges demand and refusal of payment, and that on the 15th day of March, 1879, the county court of said county ordered Joseph M. Lowe to bring suit for said taxes, said attorney to receive as his compensation ten per cent on the amounts collected. Judgment is prayed for $1,148.35, and $114.80, attorney's fee, and ten per cent interest on said taxes from the 1st day of January, 1879, and for costs.

The answer tenders the general issue as to all the allegations of the petition not thereinafter admitted. It then interposes two special pleas: 1st, That during all the years for which the taxes were imposed the defendant was a resident tax-payer in the county of DeKalb in said State, and that he had during all that time paid in said county of his residence all the taxes lawfully assessed against him; 2nd, That during all the time aforesaid he was engaged in the business of broker and exchange dealer, under and by virtue of the laws of the State of Missouri, with his office located at the town of Cameron in said Clinton county; that in said business during all said years he received deposits of money from and loaned the same to his customers, and as a matter of safety to his customers, and precaution against the stringency of the money market and financial panics, at the time he opened his office and began business as aforesaid, he deposited with his correspondents (naming them) in the city of New York, state of New York, United States bonds issued by the government of the United States under and by virtue of the acts and laws passed by congress since the 1st day of January, 1861, to the amount of $5,000, exclusive of coupons; that said bonds were what are known as “Five Twenties,” and were by law exempt from taxation; that defendant had invested the $5,000 of capital which he had at the beginning of his said business in said government bonds; that they so remained during all the years of said assessments on deposit as aforesaid, and constituted the only capital or investment of capital employed in his said business. The answer then alleges that the assessment of said taxes was made upon the said bonds and no other capital or property.

To the whole of this answer the plaintiff demurred, on the ground that the same constituted no defense to the action. The demurrer was sustained and judgment rendered on the petition as for want of answer. The defendant brings the case here on appeal.

I. It occurs to me that the demurrer in this case, even were it conceded to be well taken as to the new matter set up, is too broad. It goes to the whole answer including the general denial as well as the matter specially pleaded. Unless in the special pleas there is an expressed or implied admission of all the material allegations of the petition the demurrer should have gone to the new matter alone. It perhaps is inferable from the whole answer that it is admitted there was an assessment made on the capital invested in the defendant's banking business. But it is not admitted that the relator is collector as alleged, or that demand was made, or that Joseph M. Lowe was ordered by the county court to institute the suit, or that he was entitled to the commission claimed and for which the court gave him judgment, or that the personal property assessed was $5,000 in lawful money.

The right to bring this action by the collector for the recovery of personal taxes exists solely by virtue of section 17 of the Revenue Act, (Laws 1877, p. 388,) which provides that the “back tax book” containing the personal list “shall be delivered to the proper collector. The collector shall proceed to collect the tax due thereon * * in all matters the same as provided in this act in reference to taxes now delinquent.” Section 5 of said act provides inter alia that “for the purpose of prosecuting suits for taxes under this act, the collector shall have power, with the approval of the county court, to employ such attorneys as he may deem fit, who shall receive as fees in any suit such sum as shall not exceed ten per cent of the amount of taxes actually collected and paid into the treasury, as may be agreed in writing and approved by the county court, before such services are rendered, which sum shall be taxed as costs, * * and no such attorney shall receive any fee or compensation for such services, except as in this section provided.” p. 386. From which it is manifest that the attorney is selected by the collector, and the county court only approves the selection. The collector is the party designated by law to bring the suit, and his warrant therefor is the “back tax book, delivered to him” by the county clerk.

The petition contains no averment as to this warrant, nor that Joseph M. Lowe was properly selected as such attorney. If it could be maintained that the petition was good after verdict as to the authority of the collector to institute the suit, it certainly cannot be said that sufficient was averred to authorize the judgment for $114.80 for attorney's fee; because the statute expressly says: “No such attorney shall receive any fee or compensation, except as in this act provided.” Unless he was selected and his selection approved as provided, the court had no right to exact as costs his fee, nor had the court to award judgment therefor. At all events, these were matters put directly in issue by the general denial of the answer. It is perfectly competent, under our Practice Act, to tender in answer the general issue and matters of special defense, provided they be consistent with each other. This has been explicitly held by the Supreme Court in cases in nowise differing in principle from the answer in question. Rhine v. Montgomery, 50 Mo. 566; McAdow v. Ross, 53 Mo. 202; Wales v. Chamblin, 19 Mo. 500; also Cavender v. Waddingham, 2 Mo. App. 555, 556; Nelson v. Brodhack, 44 Mo. 596.

The proper practice in a case like this, where the plaintiff desires to reach the new matter claimed to constitute no defense to the action, is to demur to the new matter or move to strike it out. Houston v. Lane, 39 Mo. 495; Phillips v. Evans, 38 Mo. 305.

II. The first matter of special defense set up in the answer, in my opinion, constitutes no defense to the action. It is true the statute, (Wag. Stat., p. 1159, § 6,) declares that “all property, personal by the laws of this State, situate in a county other than the one in which the owner resides, shall be assessed in the county where such owner resides.” But it does not, in my opinion, apply to property like that of a private bank. This provision is but declaratory of the well recognized maxim of the common law, mobilia personam sequuntur. But a banking institution, while in the nature of personal property, is sui generis. The bank as such has an actual situs, and by fiction of law the situs of the bank is the residence of the owner for the purpose of assessment and taxation. These are regulated by special provisions of the Revenue Law, distinct from the ordinary modes of assessment respecting other personal property. While the individual banker or broker is not a corporation, subject to its incidents and duties, it is, unlike other private business, subject to special statutory regulations. R. S. 1879, chap. 85. “Of Brokers;” Gen. St. 1865, chap. 94. Such bankers or brokers are required to take out license before they can ply their vocation. Sections 4338 and 4339 clearly indicate that this license is to be obtained in the county where the business is conducted, and limit the right to conduct it to one place in the county. It will not be pretended, I presume, by defendant's counsel, that he could obtain such license elsewhere than in the county where the banking was to be done. The courts will assume that the defendant complied with the law, penal in its requirements, and, therefore, that he was doing business as a broker in Clinton county under a license obtained from the proper officer of that county. As such licensee he was amenable to the constituted authorities of that county, in all matters pertaining thereto.

Reading, in connection with the foregoing sections, section 35, page 1165, Wagner's Statutes, which is as follows: “Private bankers, brokers, money brokers and exchange dealers 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; provided, however, that the license hereafter required to be paid by such bankers, brokers and dealers, in addition to such taxes, shall not exceed $100 per annum;” there can be no doubt but the legislature contemplated that the bank was to be assessed in the county where situated. The provision that “the license shall not exceed $100 per annum,” shows clearly that the same local officials who regulate and grant the license also assess and collect the tax. The license coming from the county of Clinton carried with it the corresponding obligation to pay there the taxes for local purposes and local protection. As is fitly said by the court in Miner v. Village of Fredonia, 27 N. Y. 158, “A banking association...