State ex rel. Lindell Tower Apartments v. Guise

• Decision Date: 08 December 1947
• Docket Number: 40265
• Citation: 206 S.W.2d 320,357 Mo. 50
• Parties: State of Missouri ex rel. Lindell Tower Apartments, Inc. v. Eugene Guise, Assessor, et al., Appellants
• Court: Missouri Supreme Court

206 S.W.2d 320

357 Mo. 50

State of Missouri ex rel. Lindell Tower Apartments, Inc. v. Eugene Guise, Assessor, et al., Appellants

No. 40265

Supreme Court of Missouri

December 8, 1947

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Reversed and remanded (with directions).

George L. Stemmler, City Counselor, and Charles J Dolan, Associate City Counselor, for appellants.

(1) The statutory requirement that the Assessor of the City of St Louis shall give two weeks' notice stating when and where the Board of Equalization will be in session should not be construed to mean that the notice shall be published two weeks before the first meeting of the board because the assessor cannot commence such publication until his plat books have been completed. The plat books need not be completed until the end of the fourteenth day before the first session of the Board of Equalization. Nemo ad impossibile tenetur; Laws 1945, p. 1861, sec. 8, p. 1862, sec. 11. (2) The notice sent to relators by the Board of Equalization stating that the board had increased the assessment of relators' property and stating the amount at which the board valued the said property was substantial compliance with statutory requirements. Laws 1945, p. 1861, sec. 10. (3) Statutory requirements regarding notice should be construed as directory and not mandatory if the statute merely requires certain things to be done and nowhere prescribes the result that shall follow if such things are not done. State ex inf. v. Bird, 295 Mo. 344; Hudgins v. Consolidated School Dist., 312 Mo. 1. (4) The appearance of relators before the Board of Equalization and the presentation of its appeal cured any defects of notice. State ex rel. v. Baker, 170 Mo. 383; State ex rel. McCune v. Carter, 279 Mo. 304. (5) Under the law of Missouri assessments of property should not be considered illegal on account of any informality in making the assessment. Laws 1945, p. 1789, sec. 21.

Oscar E. Buder and Eugene H. Buder for respondent.

(1) Taxing statutes should be strictly contrued in favor of the taxpayer, and the court should rigidly adhere to the letter of the law. Crooks v. Harrelson, 282 U.S. 55, 51 S.Ct. 49, 75 L.Ed. 156; State ex rel. Nashville Life Ins. Co. v. Hyde, 292 Mo. 342, 241 S.W. 396; State ex rel. American Central Ins. Co. v. Gaynor, 315 Mo. 1126, 280 S.W. 416, 59 A.L.R. 1041; State ex rel. Compton v. Buder, 308 Mo. 253, 271 S.W. 770. (2) Statutory notice of tax proceedings is jurisdictional and requisite to the validity of those proceedings. State ex rel. Lemon v. Board of Equalization of Buchanan County, 108 Mo. 235, 18 S.W. 782; State ex rel. Lane v. Corneli, 351 Mo. 1, 171 S.W.2d 687. (3) The statutory requirement that the Assessor of the City of St. Louis shall give two weeks' notice in at least two daily newspapers stating when and where the Board of Equalization will be in session must be construed to mean that the notice shall be published in at least two daily newspapers two full weeks before the first meeting of the board. If the assessor has not completed the tax books until the fourteenth day before the first session of the Board of Equalization he can and must begin publication on that day. Laws 1945, p. 1861, sec. 8, p. 1862, sec. 11. (4) The statutory requirement that the Assessor of the City of St. Louis shall give two weeks' notice in at least two daily newspapers when and where the Board of Equalization will be in session must be construed to mean that the notice shall be published so as to give notice fourteen days in duration in each of said daily newspapers. Publication in a daily newspaper imparts notice only for the day of insertion. Laws 1945, p. 1862, sec. 11; State v. Brown, 130 Mo.App. 214, 109 S.W. 99. (5) Notice to the taxpayer of the proposed increase in the assessment given before that increase is made is a substantial requirement of the statute governing the Board of Equalization of the City of St. Louis. Statutory provisions relating to matters of substance are mandatory. State ex rel. Ellis v. Brown, 326 Mo. 627, 33 S.W.2d 104. (6) Giving of notice to the taxpayer before the assessment is increased by the Board of Equalization of the City of St. Louis is required in the statute by the use of the word "shall." In statutes the word "shall" is mandatory. Stevens v. Wurdeman, 295 Mo. 556, 246 S.W. 189; McKittrick v. Wynore, 343 Mo. 98, 119 S.W.2d 941, 119 A.L.R. 710. (7) When the taxing statute requires that notice be given of a proposed increase in assessment before that increase is made, it is not sufficient compliance with the statute to raise the assessment and then notify the taxpayer that he may take exception to such increase. Huntley v. Board of Trustees of City of Auburn, 165 Cal. 298, 131 P. 859; Allegheny County v. New York Mining Co., 76 Md. 549, 25 A. 864; People ex rel. Bracher v. Vail, 296 Ill. 61, 129 N.E. 494; State, Hoboken Land & Imp. Co., v. Anderson, 38 N.J.L. 82 (1875). (8) Where a board of equalization raises an assessment without having given notice of the proposed increase, as required by law, no proceedings, notice or appearance occurring after such raise can cure the defect. Topeka City Rail Co. v. Roberts, 45 Kan. 360, 25 P. 854; Topeka Water Supply Co. v. Roberts, 45 Kan. 363, 25 P. 855; Montana Ore Purchasing Co. v. Mayer, 32 Mont. 480, 81 P. 13; Western Rancher v. Custer County, 28 Mont. 278, 72 P. 659. (9) The taxpayer's special appearance before the Board of Equalization saved for review all the exceptions thereby taken. State v. Drake, 33 N.J.L. 194; State ex rel. Auchincloss, Parker & Redpath v. Harris, 349 Mo. 190, 159 S.W.2d 799; Code of Civil Procedure, sec. 66; Reg. v. Div. Ct., 25 U.C.Q.B. 286. (10) Raising an assessment without giving notice of the proposed increase as required by law, is a defect of substance, not of form, and is not saved by a statute upholding assessments tainted by irregularity or informality. People ex rel. Bracher v. Abraham, 295 Ill. 582, 129 N.E. 511.

OPINION

Leedy, P.J.

Appeal by the members of the Board of Equalization of the City of St. Louis from the judgment of the Circuit Court of that city in a certiorari proceeding against them, which judgment voided their action increasing the assessed valuation (as of January 1, 1946) of the improvements upon relator's real property for state, city and school taxes. The respondent on this appeal was relator in the circuit court, and appellants here were respondents there. For convenience, they will be referred to as they were styled in the trial court. Jurisdiction is in this court because the case involves the construction of the revenue laws of the state. Art. V, Sec. 3, Const. of Mo., 1945.

The improvements in question consist of a 14-story modern apartment building of brick construction, containing 350 rooms with accommodations for 92 families and a garage accommodating 37 cars, located at 3743 Lindell Boulevard, and acquired by relator August 6, 1942. On January 1, 1946, it had a gross annual rental of $ 83,000.00, and was encumbered by a first mortgage for $ 477,100. The valuation of these improvements was increased by the respondents, for the purpose of taxation, from $ 300,000 to $ 350,000. The merits of that valuation are not here involved.

On June 7, 1946, the Board of Equalization made the following entry in its minutes concerning the property in question: "Improvements from $ 300,000 to $ 350,000." And on June 8, 1946, it sent the following letter by registered mail, addressed to Lindell Tower Apartment Company at 3745 Lindell Boulevard:

"The Board of Equalization of the City of St. Louis, for the year 1946, in session convened and having had brought before it plat covering City Block 3925, after thorough investigation and consideration, have increased the assessed valuation of the property located in said City Block and being a bounded parcel fronting on Lindell Boulevard, and listed in the name Lindell Tower Apartment Company, from $ 300,000.00 to $ 350,000.00, on the improvements thereof.

"You are hereby notified that if you wish to take exception to this matter you may appear before the Board, which meets daily in Room 120, City Hall, between the hours of 10:00 a.m. to 12:00 Noon and from 2:00 p.m. to 4:00 p.m., on week days and from 10:00 a.m. to 12:00 Noon, on Saturdays.

"After the Board of Equalization adjourns, which will be on Saturday, June 15, no appeals for correction or change may be made on the taxes for the year 1946.

Very truly yours,

Board of Equalization,

Secretary."

The registered mail receipt shows that said letter was delivered to the addressee's agent on June 10, 1946.

On June 15, 1946, relator filed in respondents' office the following document:

"June 15, 1946.

"Before the Board of Equalization of the City of St. Louis.

"Exception is taken to the notice directed to the Lindell Tower Apartments, Inc., dated June 8, 1946, as also to the action of the Board of Equalization therein referred to, because the same is not in accordance with the law made and provided increasing assessments as prescribed by the Sixty-third General Assembly of the State of Missouri, commonly referred to as House Bill No. 604, and hence the Board of Equalization was without jurisdiction and power to increase the assessment as set forth in its notice of June 8, 1946, and because further the registered address with the Secretary of State of the State of Missouri of the undersigned company is the 'C.T. Corporation System, 314 North Broadway, St. Louis Missouri,' which is not only the last known, but the only address of the Lindell Tower Apartments, Inc.; that neither said Assessor nor his deputies at any time took any action increasing the assessment of exceptor prior to May...