State ex rel. Lane v. Corneli

• Decision Date: 04 May 1943
• Docket Number: 38295
• Parties: State of Missouri at the Relation of George W. Lane and Wm. S. Bedal, Executors Under the Will of Sarah L. G. Wilson, Appellants, v. Clifford Corneli, Henry W. J. Rott, Henry L. Mueller, Philip G. Deuser, Roy Jablonsky and Walter E. Miller, Composing the Board of Equalization of St. Louis County, Missouri; Philip G. Deuser, Assessor of St. Louis County, Missouri; Walter E. Miller, Clerk of the County Court of St. Louis County, Missouri; and Willis W. Benson, Collector of the Revenue of St. Louis County, Missouri
• Court: Missouri Supreme Court

171 S.W.2d 687

351 Mo. 1

State of Missouri at the Relation of George W. Lane and Wm. S. Bedal, Executors Under the Will of Sarah L. G. Wilson, Appellants, v. Clifford Corneli, Henry W. J. Rott, Henry L. Mueller, Philip G. Deuser, Roy Jablonsky and Walter E. Miller, Composing the Board of Equalization of St. Louis County, Missouri; Philip G. Deuser, Assessor of St. Louis County, Missouri; Walter E. Miller, Clerk of the County Court of St. Louis County, Missouri; and Willis W. Benson, Collector of the Revenue of St. Louis County, Missouri

No. 38295

Supreme Court of Missouri

May 4, 1943

Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.

Reversed and remanded (with directions).

J M. Blayney, Harold S. Cook and Rodney M Fairfield for appellants.

(1) Where a direct attack is made upon the judgment or order of an inferior tribunal not proceeding according to the course of the common law, its record must affirmatively show jurisdiction of the subject matter and of the person, and, where the record is silent as to any jurisdictional facts, no presumption can supply the omission. Chicago, R. I. & P. Ry. Co. v. Young, 96 Mo. 39, 8 S.W. 776; City of Tarkio v. Clark, 186 Mo. 285, 85 S.W. 329; Whitely v. Platte County, 73 Mo. 30; State ex rel. Baepler v. State Board of Health, 330 Mo. 1200, 52 S.W.2d 743; State ex rel. Kerr v. Landwehr, 32 S.W.2d 83; State ex inf. Major v. Woods, 233 Mo. 357, 135 S.W. 932; State ex rel. Jones v. County Court, 66 Mo.App. 96; State ex rel. Laidley v. Higgins, 71 Mo.App. 180; State ex rel. Stout v. Duncan, 150 Mo.App. 403, 130 S.W. 496; State ex rel. Shaw State Bank v. Pfeffle, 220 Mo.App. 676, 293 S.W. 512; In re Bledsoe Hill, 200 Mo. 630, 98 S.W. 631. (2) On the other hand, where only a collateral attack is made upon the judgment or order of such an inferior tribunal, and the record shows that the tribunal was given statutory jurisdiction of the particular class of case, it will be presumed, where the record is silent, that facts necessary to the jurisdiction were found to exist. Connors v. St. Joseph, 237 Mo. 612, 141 S.W. 638; Lingo v. Burford, 112 Mo. 149, 20 S.W. 459; State ex rel. Brown v. Wilson, 216 Mo. 215, 115 S.W. 549; State ex rel. Highway Comm. v. Moore, 322 Mo. 329, 18 S.W.2d 892. (3) The common-law writ of certiorari constitutes a direct attack. State ex rel. Aquamsi Land Co. v. Hostetter, 336 Mo. 391, 79 S.W.2d 463. (4) The assessment made against Sarah L. G. Wilson of omitted property in the total amount of $ 1,303,013 as it appears on the 1938 Assessor's books and 1939 Collector's book under purported authority of the Board of Equalization was void because the records certified fail to show that notice was served upon appellants as required by Section 11006, R. S. 1939, and therefore jurisdiction to make the assessment does not appear. State ex rel. Lane v. Corneli, 347 Mo. 932, 149 S.W.2d 815, and authorities cited under point (1), supra. (5) The former certiorari proceeding and the opinion of this court therein are not res adjudicata because in the prior proceeding the court passed only upon the validity of the preliminary order of the Board of Equalization, which was the only record certified in response to the writ.

Arthur U. Simmons and Lashly, Lashly, Miller & Clifford for Willis W. Benson, Collector of the Revenue of St. Louis County, respondent.

(1) Certiorari should not be allowed where, as here, it might operate inequitably or unjustly. Relators, as a condition precedent to the relief sought by certiorari, were required to show a prima facie case of merits so that it may appear that the determination complained of will probably be changed, and relators' failure to make such a showing justified the circuit court in refusing them the relief sought. Brown v. Atlantic City, 136 A. 608, 5 N. J. Misc. 397; Arkadelphia Milling Co. v. Clark County Board of Equalization, 136 Ark. 180, 206 S.W. 70; Gates v. Hayes, 69 Ark. 518, 64 S.W. 271; Overton v. Alston, 199 Ark. 96, 132 S.W.2d 834; Amero v. Board of Appeal, 283 Mass. 45, 186 N.E. 61; Sahagian v. Superior Court, 47 R. I. 85, 129 A. 813; In re Suelgrove, 208 N.C. 670, 182 S.E. 335; Willoughby v. Jarvis, 136 Tenn. 279, 189 S.W. 366; Jirou v. Jirou, 136 S.W. 493. (2) The judgment of this court in the first certiorari proceeding instituted by relators herein denying relators' petition for a writ of certiorari and the relief sought thereunder is a bar to the maintenance of relators' petition for a writ of certiorari in the instant cause. Leslie v. Carter, 268 Mo. 420, 187 S.W. 1196; State ex rel. Lane v. Corneli, 347 Mo. 392, 149 S.W.2d 815; Bennett v. Brotherhood of Locomotive Firemen, 222 Mo.App. 334, 106 S.W.2d 25; Tebbets v. Rickart, 252 Mo. 333, 158 S.W. 843; Powell v. City of Joplin, 335 Mo. 562, 73 S.W.2d 408; Johnson v. United Ry. Co., 243 Mo. 278, 147 S.W. 1077; Harrison v. Jackson County, 187 S.W. 1183, 1185; State ex rel. Natl. Lead Co. v. Smith, 134 S.W.2d 1061; Weaver v. Bryan, 225 Mo.App. 385, 35 S.W.2d 639; George H. Lee Co. v. Federal Trade Comm., 113 F.2d 583; 11 C. J., secs. 88, 385, pp. 131, 213; 14 C. J. S., sec. 21, p. 156. (3) Because the records returned and certified by respondents to the circuit court being silent as to whether proper notice of the board's action was given to relators the court was entitled to indulge in the presumption that such notice was duly given to relators. State ex rel. Harrison v. Springer, 134 Mo. 212, 35 S.W. 589; State ex rel. Lane v. Corneli, 347 Mo. 392, 149 S.W.2d 815; School Dists. v. Yates, 161 Mo.App. 107, 142 S.W. 791.

Erwin F. Vetter, County Counselor of St. Louis County, for other respondents.

(1) The previous decision and judgment of this court is conclusive as to all questions raised in this proceeding and the matter again here for decision is res adjudicata. State ex rel. Lane v. Corneli, 347 Mo. 932, 149 S.W.2d 815; Custer v. Kroeger, 313 Mo. 130, 280 S.W. 1035; Powell v. City of Joplin, 335 Mo. 562, 73 S.W.2d 408; Harrison v. Jackson County, 187 S.W. 1183; Lee Company v. Federal Trade Comm., 113 F.2d 583. (2) The statutory nature given by Section 11001, R. S. 1939, is all the organic law requires, and in the silence of the record showing whether notice was given under Section 11006, R. S. 1939 (Sec. 9816, R. S. 1929), it will be presumed that valid and right action was taken. State ex rel. Lane v. Corneli, 347 Mo. 932, 149 S.W.2d 815; State ex rel. v. Springer, 134 Mo. 212, 223 S.W. 589; State ex rel. Ball v. Board of Health, 325 Mo. 41, 26 S.W.2d 773.

OPINION

Douglas, P. J.

Relators, executors of the estate of Sarah L. G. Wilson, have appealed from a judgment rendered in a certiorari proceeding whereby the Circuit Court of St. Louis County dismissed their petition and refused to quash an assessment against Mrs. Wilson made by the Board of Equalization of St. Louis County.

As of June 1, 1938, the assessor made an arbitrary assessment of the personal property of Mrs. Wilson of $ 200. On November 19, 1938, Mrs. Wilson died. Her will naming relators as executors was probated. On April 17, 1939, the Board of Equalization entered the following order: "It is ordered by the Board that the following described personal property in Clayton School District of the Estate of Mrs. N. B. Wilson, Deceased, be added to the Assessor's books in the amount of $ 1,303,013.00 in lieu of $ 200.00 arbitrary assessment fixed by the Assessor, as follows, to-wit: Bonds $ 1,249,986.00; Notes $ 5,619.00; Goods and Chattels $ 15,021.00; Miscellaneous $ 1,500.00. It is further ordered that the Clerk notify Wm. S. Bedal and Geo. W. Lane, Attorney, for the estate of Mrs. N. B. Wilson, to appear on the 24th day of April, 1939, and show cause, if any they have, why said assessment should not be made."

This is the second appearance of this case in this court. In the first certiorari proceedings instituted by the executors the circuit court quashed the order of April 17 and the board appealed to this court. Our decision in that appeal appears in State ex rel. Lane v. Corneli, 347 Mo. 932, 149 S.W.2d 815.

It is conceded in both cases the applicable statute under which the board was acting is Sec. 11006, R. S. 1939, as follows "The county board of equalization, at its annual meeting in each year, in addition to the powers now conferred by law, shall have authority to assess and equalize the value of any property that may have been omitted from the assessor's books then under examination by said board, and in case said board shall add any property, real or personal, to said assessor's books, it shall cause notice in writing to be served upon the owner of such property, stating the kind and class of property and the value fixed thereon by said board, and naming the time and place, not less than five days thereafter, when and where such owner may appear before said board and show cause why said assessment should not be made. At the time fixed, said board shall again meet and give an opportunity to said taxpayer to be heard in regard to said assessment, and may change or alter the same upon it being shown by said owner that said assessment was erroneous or improperly made; otherwise, said property and the valuation, as fixed by said board, shall be extended upon the assessor's books, as in case of other property. Said notice shall be signed by the clerk of the county court and shall be served by the sheriff of the county, and it shall be the duty of the prosecuting attorney, when called upon by the board of equalization, to represent said county in any such proceedings. In case of the assessment of real estate belonging to nonresidents, publication may be made of the additional assessment in the same manner as publications required by law where the assessment has been increased by...