State ex rel. Lane v. Corneli
| Decision Date | 18 April 1941 |
| Docket Number | 37194 |
| Citation | 149 S.W.2d 815,347 Mo. 932 |
| Parties | State of Missouri at the relation of George W. Lane and Wm. S. Bedal, Executors under the Will of Sarah L. G. Wilson, v. Clifford Corneli, Henry W. J. Rott, Henry L. Mueller, M. L. Neaf, John M. Crutsinger and Walter E. Miller, composing the Board of Equalization of St. Louis County, Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied March 13, 1941.
Motion to Transfer to Court in Banc Denied April 18, 1941.
Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.
Reversed and remanded (with directions).
Erwin F. Vetter for appellants;
Walter Wehrle, amicus curiae, for Town School District of Clayton; Glen Mohler, amicus curiae, for City of Clayton.
(1) The order is not void because of the use of the name "Mrs. N. B. Wilson" instead of Sarah L. G. Wilson. The test as to whether a misnomer in an assessment is fatal or a mere irregularity is whether it is misleading or prejudicial to the taxpayer. 61 C. J. 707; State ex rel. Gracy, Collector, v. Bank, 120 Mo. 161; State ex rel. v. Moyt, 123 Mo. 356. (2) The order of the county court correcting the name was properly included in the return as it became a part of the assessment of the board of equalization as soon as it was made and the trial court erred in excluding it. (3) The order of the board of equalization amounted to an increase in the valuation of personal property. Hence, the failure to give notice would not invalidate the order of the board. The law requires no notice of an increase in the valuation of assessed personal property. State ex rel. v. Springer, 134 Mo. 227; State ex rel. v. Birch, 186 Mo. 214; State ex rel. v. Cummings, 151 Mo. 58; State ex rel. v. Cunningham, 153 Mo. 653. (4) The record shows that relators have not pursued their remedy by appeal from the order of the board of equalization to the State Tax Commission before bringing this proceeding. Therefore, certiorari does not lie. Sec. 9854 (3), Art. 4, Chap. 59, R. S. 1929. (5) There is an adequate remedy in equity to enjoin the collection of taxes under a void assessment. State ex rel. v. Neaf, 130 S.W.2d 509; State ex rel. v. Telephone Co., 165 Mo. 502; Bank v. Schlotzhauer, 298 S.W. 732.
J. M. Blayney, Harold S. Cook and Rodney M. Fairfield for respondents.
(1) The County Boards of Equalization in Missouri act judicially and their orders, if made within their jurisdiction, have the force and effect of judgments. State ex rel. Johnson v. Bank, 279 Mo. 228, 213 S.W. 815. (a) The order of the St. Louis County Board of Equalization was void because it named the wrong party. Vincent v. Means, 184 Mo. 327, 82 S.W. 96; Woodside v. Durham, 317 Mo. 15, 295 S.W. 772; State Land Co. v. Mitchell, 162 Ala. 469, 50 So. 117; People v. Whipple, 47 Cal. 591. (2) The order of the St. Louis County Board of Equalization was void because it failed to show on its face that notice was served upon respondents as required by Section 9816, Revised Statutes 1929. State ex rel. Brown v. Wilson, 216 Mo. 277, 115 S.W. 568; State ex rel. Kerr v. Landwehr, 32 S.W.2d 83; State ex rel. Baepler v. State Board of Health, 330 Mo. 1200, 52 S.W.2d 743. (a) The board's order was made under the provisions of Section 9816, Revised Statutes 1929, and not Section 9813, Revised Statutes 1929. State ex rel. Rice v. Harrison, 226 Mo. 171, 125 S.W. 1119; State ex rel. Morris v. Cunningham, 153 Mo. 642, 55 S.W. 249; State ex rel. Collector v. Trust Co., 261 Mo. 448, 169 S.W. 28. (3) Certiorari is the proper remedy where a county board of equalization has exceeded its jurisdiction and this is shown by the face of the record. State ex rel. Ballew v. Woodson, 161 Mo. 452, 61 S.W. 254; State ex rel. Bentley v. Reynolds, 190 Mo. 588, 89 S.W. 879; State ex rel. Van Raalte v. Board of Equalization, 256 Mo. 455, 165 S.W. 1047; State ex rel. Davis v. Walden, 332 Mo. 680, 60 S.W.2d 24.
Dalton, C. Hyde and Bradley, CC., concur.
Relators, respondents here, applied for and obtained from the Circuit Court of St. Louis County a writ of certiorari directed to the members of the county board of equalization to review certain proceedings of the board with reference to an order for an assessment of personal property against the estate of Mrs. N. B. Wilson, deceased. Upon a hearing the circuit court quashed the order of the board of equalization, as entered of record April 17, 1939, and respondents below have taken the necessary steps to present the matter on appeal.
We have jurisdiction because the appeal is one "involving the construction of the revenue laws of this State." [Sec. 12, Art. 6, Constitution, 15 Mo. Stat. Ann. 561; State ex rel. Martin v. Childress, 345 Mo. 495, 499, 134 S.W.2d 136, 138; State ex rel. Harrison County Bank v. Springer, 134 Mo. 212, 220, 35 S.W. 589.]
The petition for the writ of certiorari, among other things, recites that George W. Lane and Wm. S. Bedal are the duly appointed, qualified and acting executors of the estate of Sarah L. G. Wilson, who died November 19, 1938; that letters testamentary were issued to them on November 23, 1938; that "relators assume that said Sarah L. G. Wilson is the same person referred to in the order of the board of equalization hereinafter set forth as Mrs. N. B. Wilson;" and that respondents, as members of the Board of Equalization of St. Louis County, held an adjourned meeting on April 17, 1939, and entered the following order:
It was further alleged that an adjourned meeting of said board was held on April 24, 1939, but no further action with reference to the property described in the order was taken; and that relators made no appearance and no appearance was made on behalf of the estate of Sarah L. G. Wilson, deceased.
Relators alleged that "such order made by respondents on April 17, 1939, if applicable to the estate of Sarah L. G. Wilson, deceased, was illegal, beyond the jurisdiction of said Board, unauthorized by law, and therefore void . . ." The reasons assigned were as follows: (1) The order named the wrong estate, being purported to be made against the estate of Mrs. N. B. Wilson, deceased, and not the estate of Sarah L. G. Wilson, deceased, whose late husband was Newton R. Wilson; (2) "On the first day of June, 1938, . . . the date fixed by law for the assessment of all property for taxes for the year 1939, the said Mrs. N. R. Wilson, or Sarah L. G. Wilson, was living and, therefore, said assessment, presuming that it was intended to be an assessment against the estate of which relators are executors, could only have been made against her;" (3) The order shows on its face that notice of the addition of such property to the assessor's books was ordered given to "Wm. S. Bedal and Geo. W. Lane, Attorneys for the Estate of Mrs. N. B. Wilson; . . . That, presuming that such assessment was intended to be an assessment against the estate of Sarah L. G. Wilson, deceased, relators, as executors under the will of Sarah L. G. Wilson, deceased, are and were at all times since November 23, 1938, the owners of said property and the only persons to whom such notice could have been given;" (4) "That no notice . . . was given to relators, . . ."
The writ, as issued, required respondents to certify and send up "a true, full and complete copy of the orders and records as such Board of Equalization in connection with the matters set forth in said application and all other acts and proceedings in said matters."
Respondents moved to quash the writ, assigning among others, the following reasons: (1) that it appeared on the face of the petition that Mrs. N. B. Wilson and Sarah L. G. Wilson were one and the same person; (2) that it appeared from the face of the petition that all of the property assessed against the estate of Sarah L. G. Wilson was personal property and no notice of raise in valuation thereof was required by law; (3) that if the property assessed against the estate of Sarah L. G. Wilson was not correct such facts were outside of the record and certiorari could not reach them; and (4) that relators had full and adequate remedies at law for review and determination of the legality of the assessment. This motion was overruled and respondents filed their return.
The return consisted of a certified copy of the order of the board of equalization of April 17, 1939, set out supra, and a certified copy of an order of the County Court of St. Louis County entered October 23, 1939. This order stated that Sarah L. G. Wilson was a resident of St. Louis County on June 1 1938; that she died November 19, 1938; that George W. Lane and Wm. S. Bedal had been appointed executors; that neither Sarah L. G. Wilson nor her executors had filed a return; that the assessor had made an arbitrary assessment for $ 200; that the board of equalization had raised the assessment on personal property to $ 1,303,013; that Sarah L. G. Wilson was the widow of Newton R. Wilson and was sometimes known as Mrs. Newton R. Wilson or Mrs. N. R. Wilson; and that the assessor erroneously made his assessment in the name of Mrs. N. B. Wilson. It then directed that the tax books and...
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