State ex rel. Lewellen v. Schooley

• Decision Date: 31 October 1884
• Citation: 84 Mo. 447
• Parties: STATE ex rel. LEWELLEN, Collector, v. SCHOOLEY, et al., Appellants.
• Court: Missouri Supreme Court

84 Mo. 447

STATE ex rel. LEWELLEN, Collector,

v.SCHOOLEY, et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Clair Circuit Court.--HON. CHAS. G. BURTON, Judge.

REVERSED.

Johnson & Lucas for appellants.

(1) Before the relator could recover he should have shown that the defendants were the owners of the property against which the action was instituted. (2) The back tax book is an execution, a command to the collector to institute an action for the collection of taxes-- videsection 6836, Revised Statutes, and no provision is made for his turning the same over to his successor; he must collect all taxes thereon, or show to the court that he has exhausted all remedies given by law. Section 2396, Revised Statutes, authorizes and empowers sheriffs to deliver to their successors unexecuted writs; without such provision it would be the duty of the officer receiving the writ fully to execute the same. (3) The relator was possessed of no authority to place on the tax books or tax bills any tax that did not appear thereon at the time of his receiving the same. His act in placing tax in columns headed “Railroad” and ““Total,” was without authority and void. Henry v. Bell, 75 Mo. 192; Higgins v. Ausmuss, 77 Mo. 353. The action of the state auditor in directing the clerk to make out a new back tax book was unauthorized by any provision of law, and the clerk's action is clearly within the rule laid down in Higgins v. Ausmuss, 77 Mo. 353. (4) The failure of the assessor to verify the assessor's book by affidavit, as required by law, invalidated his assessment. Town of Warrensburg ex rel. Coburn v. Miller, 77 Mo. 56; State ex rel. Harvey v. Cook, 82 Mo. 18; Marshv. Supervisors, 42 Wis. 502; Plume v. Supervisors, 46 Wis. 163; Cooley on Taxation, p. 289; Johnson v. Elwood, 43 N. Y. 431. (5) The delinquent lists were not verified by affidavit. Until the collector has exhausted the remedy provided by section 6754, supra, no authority exists to go further, and the evidence thereof is to be found in the affidavits required by law. Thatcher v. Powell,19 U. S. C. C. (Wheaton) 119; Cooley on Taxation, p. 307. (6) The record shows that the levies for county purposes were in excess of the constitutional limit. When the county court exceeds its authority, all of its proceedings are void, hence, the whole levy for county taxes should have been stricken from the suit. Cooley on Taxation, pp. 295-6. (7) Section 4, article 10 of the Constitution, requires all property to be taxed in proportion to its value, and in accordance with said provision, the legislature, Revised Statutes, section 6881, has provided a rule for all assessors to ascertain and place an actual cash value thereon. These provisions of the constitution and the statute the assessors ignored and disregarded. The assessment is void. Hamilton v. St. Louis, etc., 15 Mo. 3; State v. North, 27 Mo. 483; Life Association v. Board, 49 Mo. 518.

Parkinson & Abernathy and C. J. Harrison for respondent.

(1) The affidavit of the assessor to the assessment is not essential to confer jurisdiction of the subject matter of taxation. The verification is in no sense a judicial act on the part of the assessor, as the valuation of property, to some degree, at least, is, and it is against the general rule to find in the affidavit that which is always sought and found in the thing verified. In the case of State v. Cook, 82 Mo. 185, the decision does not depend on the assessor's affidavit, but upon the non-existence of any assessment or official act of the assessor for the taxes of 1874. (2) The levies were severally made within the tax limit, as appears from the record, unless as claimed by appellants, a levy to meet a portion, exhausts the power, and makes the second levy to meet the balance of indebtedness existing at the adoption of the constitution of 1875, void. The constitution itself uses the term “taxes” in the exception clause, seeming to imply successive levies till such indebtedness is liquidated. Such construction is consistent with the general doctrine of the partial execution of powers. Though the second levy for back indebtedness is void, yet it is void only for the thirty cents levied for such back indebtedness. The statutory requirements and the facts show that it is a separate tax separately levied, separately extended on back tax column, and is not blended with other taxes, so as to be incapable of separation from them. The rule goes without question, that where the excess is distinct and separate, invalidity attaches only to the excess and not to the levies made for other objects within the powers and limits of the law. Const. Mo., art. X, § 11; Cooley on Taxation, pp. 295, 6. (3) The destruction of the tax books did not nullify or destroy the authority their creation and existence conferred The taxes were due, and the powers of the various officers remained unimpaired. Whether the amount should be ascertained by secondary evidence, or by a copy, or new book made under direction of the auditor, who is the superintending authority in revenue matters, makes but little practical difference. The state is not to be left to the mercy of midnight marauders, in the collection of her revenues. Sess. Acts 1872, §§ 90, 91, p. 102; 2 Wag. Stat. 1872, § 14, p. 1137; Strain v. Murphy, 49 Mo. 337. The cases of Henry v. Bell, 75 Mo. 192, and Higgins v. Ausmuss, 77 Mo. 353, go to the question of power, and not to the question of ascertaining in a proper way by secondary evidence the amounts due, the original evidence of which had been destroyed. (4) The same reasons as are given regarding the jurisdictional character of the assessment, and not the affidavit of the assessor apply to the delinquent lists and collector's affidavit. Furthermore, we claim that the collector's affidavits are things going to the remedy only, and not to the jurisdiction of the tax lien proceedings in the circuit court. They are subject to legislative change or abolition, and have no jurisdictional force, and come into existence after lien attaches. Cooley on Taxation, 215, 219; R. S. 1879, § 6825, p. 1341; Blossom v. VanCourt, 34 Mo. 390; McLaren v. Sheeble, 45 Mo. 130; McCready v. Sexton, supra. (5) The curative provisions of the revenue law of 1872, section fifty-three, indicate a legislative intention to relieve as far as possible, from strained construction and technical niceties in the interpretation and administering of it. And the same or similar provisions are manifest to a greater degree in subsequent legislation.

BLACK, J.

This action was instituted by the collector of the revenue of St. Clair county to enforce the lien for back taxes for the years 1873, 1874, 1875, 1876, 1877, and 1878, against certain lands in that county which it is conceded, belong to the defendants. The township organization law was adopted and went into force in that county in May, 1872, and remained in force until August 1, 1877,

1. On the trial of this cause the relator made proof of the signature to the tax bill sued upon, and then offered it in evidence, to which objections were made on the alleged ground that the tax bill was not correctly certified from the back tax books. The tax bill appears to be formal and states the facts required by section 6837, Revised Statutes, and by that section became prima facie evidence that the amount claimed was just and correct. The law does not contemplate that this tax bill made out by the collector for suit shall be a copy of a part of the back tax book. It must state certain facts and be certified to by him, and when all this is done, it is made evidence. The objections made to the introduction of this tax bill did not appear upon its face, and were properly overruled, and so was the demurrer to the evidence interposed at the close of the plaintiff's case.

2. It is agreed that the evidence offered on trial showed that three of the assessment lists made out by the township assessor for the township in which this land is situated, for the years 1873, 1874, 1875, and 1876 had no affidavit or oath of the assessor attached, and that the fourth...