State ex rel. Hayes v. The Hannibal & St. Joseph Railroad Company

• Decision Date: 17 November 1896
• Citation: 37 S.W. 532,135 Mo. 618
• Parties: The State ex rel. Hayes, Appellant, v. The Hannibal & St. Joseph Railroad Company
• Court: Missouri Supreme Court

37 S.W. 532

135 Mo. 618

The State ex rel. Hayes, Appellant, v. The Hannibal & St. Joseph Railroad Company

Supreme Court of Missouri, First Division

November 17, 1896

Rehearing Denied 135 Mo. 618 at 649.

Appeal from Jackson Circuit Court. -- Hon. C. L. Dobson, Judge.

Reversed and remanded.

H. M Meriwether, Teasdale, Ingraham & Cowherd, and Marcy K. Brown for appellant.

(1) The action of the county court in ascertaining the average rate of taxation for school purposes is not subject to collateral attack. State ex rel. v. Railroad, 116 Mo. 15; State ex rel. v. Brassfield, 113 Mo. 90. It may be reviewed by appeal. R. S. Mo. 1889, secs. 3318, 3434, 7658; Colman v. Farrar, 112 Mo. 72. It may also be reviewed by certiorari. Halpin v. Powers, 68 Mo 320; State ex rel. v. Dowling, 50 Mo. 134. (2) In assessing defendant's local property the assessor acted judicially, and his assessment was not appealed from. It is not subject to review in this proceeding. Burrows on Taxation, pp. 238 and 245; Cooley on Taxation [2 Ed.], p. 750, and following; Meyers v. Rosenblat, 78 Mo. 495; Dean v. Todd, 22 Mo. 90; State ex rel. v. Bank, 120 Mo. 161; Ins. Co. v. Charles, 47 Mo. 466; R. S. 1889, sec. 7572; Farmington v. Downing, 30 A. (N. H.) 345; Railroad v. Matthews, 38 N.E. 623; Jones v. Gas Co., 35 N.E. 390; Railroad v. Devereux, 41 F. 14. (3) The failure of several school boards to state clearly the amounts deemed necessary in their estimates was an immaterial variation. The requirements as contained in section 8000 are merely directory. Railroad v. Gracy, 28 S.W. 736. (4) The property of defendant described, assessed and taxed as local property, was local property, and subject to be taxed as such. R. S. 1889, secs. 7728, 7729; State ex rel. v. Railroad, 117 Mo. 1; State ex rel. v. Railroad, 114 Mo. 1; State ex rel. v. Bridge Co., 109 Mo. 253; Railroad v. Devereux, 41 F. 14. (5) The Kansas City school levy was valid and sufficient authority to the county clerk to enter up the tax on the railroad tax book as a charge against the local property of defendant in said school district. Railroad v. Gracy, 28 S.W. 736; R. S. 1889, secs. 8005, 8067 and 8094; State ex rel. v. Railroad, 113 Mo. 297; In re Powers, 52 Mo. 218; School District v. Byars, 67 Mo. 706; State ex rel. v. Railroad, 21 S.W. 14; Robbins v. Barron, 33 Mich. 124. (6) The uniting and blending of the rates for school purposes, building purposes and other purposes in obtaining the average rate of fifty-five cents, was a mere irregularity which did not increase the burden of defendant and would not invalidate the tax. Railroad v. Gracy, 28 S.W. 736; Railroad v. County Court, 50 N.W. 937; Roackland v. Ulma, 24 A. 949; Thatcher v. People, 79 Ill. 597; R. S. 1889, secs. 7708, 7563; State ex rel. v. Railroad, 113 Mo. 297. (7) Buildings on the right of way of a railroad are a part of the roadbed and are to be assessed by the state board and taxed for school purposes at the average rate. They are not local buildings. State ex rel. v. Railroad, 89 Mo. 98; R. S. 1889, sec. 7718. (8) The railroad tax book is not required by statute to have the rate at the head of each column. R. S. 1889, sec. 7733. (9) The relator was required to collect the whole amount of taxes charged against each tract of land, parcel or valuation, on the tax book. He could not receive less than the whole, and hence it was error to adjudge costs against him. R. S. 1889, sec. 7612; Julien v. Ainsworth, 24 Kan. 446.

Spencer & Mosman and John D. Strong for respondent.

(1) The trial court did not err in holding that appellant could not recover on account of school taxes charged against defendant's property at the average rate of fifty-five cents (55 cts.), for the reason that the railroad tax book was fatally defective and would not authorize a judgment for the tax. "A statute is never regarded as directory merely, so that any of its provisions may be dispensed with, when the act required or the omission of it can by any possibility work advantage on one side or injury on the other, however slight, to anyone affected by it." 1 Desty on Taxation, pp. 555 and 558; Lyon v. Alley, 130 U.S. 185; State v. Bank, 120 Mo. 173; Seymour v. Peters, 67 Mich. 415; Ferton v. Feller, 33 Mich. 203; Cooley on Taxation [2 Ed.], pp. 353 and 420. (2) By the failure of the county clerk to comply with the command of the statute the tax against the defendant was increased largely over what it would have been, if based on the assessment returned by the state board. All statutes are mandatory which expressly or by implication limit the amount of taxes that may be levied. When these are exceeded by a sum which is spread upon the whole roll, the levy is void. Boyce v. Sebring, 66 Mich. 219; Bailey v. Haywood, 38 N.W. 209; Lufkin v. City, 11 S.W. 340; Cooper v. Lumber Co., 31 S.W. 981; Wager v. Booley, 62 N.W. 293; State v. Railroad, 117 Mo. 12; State v. Railroad, 114 Mo. 11. (3) Any such unauthorized action on the part of the officers has always been held fatal to the tax. Henry v. Bell, 75 Mo. 197; Railroad v. Cass Co., 53 Mo. 17; Harris v. Brown, 52 Mo. 306; Warrensburg v. Miller, 77 Mo. 56; State v. Railroad, 110 Mo. 271; Railroad v. Apperson, 97 Mo. 300; Higgins v. Ausmus, 77 Mo. 351. (4) The railroad tax book is by statute given the force and effect of an execution (sec. 7740), and as it did not follow the assessment, it was a nullity. Burroughs on Taxation, sec. 105, p. 256; Railroad v. Apperson, supra; Warrensburg v. Miller, supra; Ewart v. Davis, 76 Mo. 133; Kinney v. Forsythe, 96 Mo. 419; Pike v. Martindale, 91 Mo. 280; Howard v. Heck, 88 Mo. 461; Holzhour v. Meer, 59 Mo. 434. (5) The trial court did not err in holding that appellant could not recover school taxes at the average rate, for the reason that the provisions of section 8005, Revised Statutes, 1889, had not been complied with. The taxpayers had not voted to authorize the levy of any such a rate of taxation. (6) The failure of the estimates to show the aggregate sum necessary to be raised in the district in order to maintain the schools for the year is fatal to the recovery of the average rate school tax. (7) The failure to find separately the average rate for "school purposes," for "building purposes," and for "other purposes," and the failure to charge the railroad company with taxes for each of said purposes separately at the average so found, avoids the tax. (8) Tracts number 9 and 10, were parcels of land arbitrarily cut by the city assessor out of the lands bought by the defendant and improved for track and depot purposes. These lands were the roadbed for the defendants main and side tracks, and the site of its depot and (except coal shed site) were not put to any other use. (9) The city assessor had no power to subdivide the ground; the statute gave him none. People, etc., v. Co., 96 Ill. 369; Gage v. Rumsey, 73 Ill. 473; Bedleman v. Brooks, 28 Cal. 72; Brown v. Hays, 66 Pa. St. 235; Reading v. Finney, 73 Pa. St. 467. (10) If it were conceded that he had the power, still his action in this case is unauthorized, because his description included too much land. Co. v. People, 89 Ill. 464.

Division One: Brace, P. J. Macfarlane and Robinson, JJ., dissent from paragraph 4. In Banc: Macfarlane, J. Brace, C. J., dissents.

OPINION

In Banc.

DIVISION ONE.

Brace P. J.

This is an action by the collector of the revenue of Jackson county, for the recovery of taxes alleged to be due by the defendant for the year 1891. The taxes sued for are upon both the local and distributable property of the defendant. Before the taxes became delinquent the aggregate sum which the defendant admitted to be properly leviable of its property was tendered to the collector, and, after suit brought, was deposited in court. The question at issue is upon the taxes which it refused to pay, for reasons stated as follows:

"1. The defendant refused to pay the local school tax of Kansas City district on its local property described in the petition as tracts 1, 2, 3, 4, 5, 6, 7, and 8, for the reason that no order of the county court was made levying the tax.

"2. The defendant also refused to pay school taxes at the average rate of fifty-five cents on the $ 100, claiming that it was in excess of the true average rate, and that the levy of the average rate was illegal.

"3. Defendant refused to pay the school tax at the average rate of fifty-five cents on its buildings valued at $ 12,550. And it contends that said buildings should only be taxed at the local district rate.

"4. It refused to pay all taxes on tracts 9 and 10 described in appellant's petition, for the reason that 'said tracts were in fact a part of the distributable property of the defendant, were reported by it to the state auditor, and the same were assessed by the state board of equalization. Defendant claims that they were not subject to assessment by the local assessor of Jackson county.'"

The trial court refused all the declarations of law asked for by both the plaintiff and the defendant, gave judgment for the defendant, adjudged the costs against the relator, and the plaintiff appeals.

1. Plaintiff contends that the action of the county court in ascertaining the average rate of taxation for school purposes upon defendant's distributable property and of said court and of the assessor in the assessment of defendant's local property is conclusive and not subject to attack in this action, and that the court committed error in refusing to so declare, as asked in the instructions of the plaintiff; and in admitting evidence in support of such attack.

If this contention can be maintained we are relieved of the necessity of inquiring into most of the objections urged against the validity of the proceedings by which the contested taxes were...