State ex rel. McCune v. Carter
| Citation | 214 S.W. 180,279 Mo. 304 |
| Parties | THE STATE ex rel. JEFF D. McCUNE et al., Appellants, v. ALEXANDER CARTER et al., Constituting the Board of Equalization of Audrain County |
| Decision Date | 09 July 1919 |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. Ernest S. Gantt, Judge.
Affirmed.
E. A Shannon and Pearson & Pearson for appellants.
(1) Statutes imposing taxes are strictly construed against the State, and in favor of the taxpayer. 37 Cyc. 768; State ex rel. v. Alt, 224 Mo. 513; State ex rel. v Lesser, 237 Mo. 318; State ex rel. v. Scullin, 266 Mo. 331; State ex rel. v. St. L. Co. Ct., 13 Mo.App. 54; City of Hannibal ex rel. v. Bowman, 98 Mo.App. 109. (2) A county board of equalization is a court of limited and inferior jurisdiction. Section 11402, R. S. 1909; Washington Co. v. Railroad, 58 Mo. 379. (3) Where the proceedings of inferior courts whose methods of procedure are not in accordance with the courts of the common law, are called in question, jurisdiction will not be presumed; but must of necessity appear, and be distinctly disclosed by the record, on the face of the proceeding; and can receive no help from intendments or implications. Cunningham v Railroad, 61 Mo. 36; State ex rel. v. County Court, 66 Mo.App. 99; Rousey v. Wood, 57 Mo.App. 658. The record of such courts must show the existence of all facts necessary to give jurisdiction over the subject-matter, and the parties. Schell v. Leland, 45 Mo. 294; State v. Metzgler, 26 Mo. 66; Corrigan v. Morris, 43 Mo.App. 461; Fisher v. Davis, 27 Mo.App. 327. If such jurisdiction does not appear upon the face of the proceedings, their acts are void. Haggard v. Railroad Co., 63 Mo. 303. (4) The law requires, that an accurate and detailed record of the proceedings and orders of a board of equalization must be kept, showing distinctly, when it is raising the valuation of property already assessed; and, when it is adding and assessing other property "omitted from the assessor's books," designating in each instance, the "kind and class" of property raised, or assessed. Secs. 11404, 11407, R. S. 1909; State exrel. v. Cunningham, 153 Mo. 653; Washington Co. v. Railroad, 58 Mo. 378. (5) When the valuation of property listed and assessed is raised, or property "omitted from the assessor's books" is assessed, a notice must, in either case, be served on the property owner stating the "kind and class" of property raised or assessed and the value fixed thereon by the Board; and the record of the board should show, and such notice should distinctly state whether the action of the board was on the property listed and assessed or property omitted from the assessor's books, and by it assessed for the first time. Secs. 11404, 11407, R. S. 1909; State ex rel. v. Cunningham, 153 Mo. 653; Washington Co. v. Railroad 58 Mo. 378. (6) A notice, such as the law requires to be given, on increasing the valuation of property or already assessed, or assessing property "omitted from the assessor's books," is essential to the validity of the proceeding. Sec. 11407, R. S. 1909; State ex rel. v. Springer, 134 Mo. 224. (7) A property owner does not waive his rights to a legal notice, by appearing for the sole purpose of objecting to the invalidity and insufficiency of the notice served on him, and to the jurisdiction of the board to act under the premises. His appearance for a special purpose constituted no waiver of any valid objection which he had to the defective process and service; for a party who is in court for one purpose, is not necessarily in for any other purpose. Schell v. Leland, 45 Mo. 293; Thompson v. Ry. Co., 110 Mo. 156. (8) The board of equalization acts judicially in either raising the assessments already listed; or, in assessing property "omitted from the assessor's books." In raising the assessment of property already listed or in assessing property "omitted from the assessor's books, the board of equalization must have evidence before it, or its act will be invalid. Secs. 11406, 11407, R. S. 1909, Washington Co. v. Railroad, 58 Mo. 378; State ex rel. v. Scullin, 266 Mo. 331. The record of the proceedings of the board should contain a statement, that evidence was taken and heard in either raising assessments of property already listed, or in assessing property "omitted from the assessor's books." Washington Co. v. Railroad, 58 Mo. 378. (9) On and after the 4th Monday of April, a board of equalization ceases to act as such, but is simply a board of appeals; and has power and authority as such to hear complaints from the property owner, on the action of the board of equalization, in either raising the valuation of his property already assessed, or in assessing property "omitted from the assessor's books;" and, can only "change or alter the same, upon it being shown by the said owner that said assessment was erroneous, or improperly made; otherwise said property and the valuation as (previously) fixed by said board, shall be extended upon the assessor's books, as in case of other property." And, it has no power or authority (on its own initiative, the property owner not appearing), to hear evidence or change the valuation thitherto raised or assessed. Sec. 11407, R. S. 1909. (10) A board of appeals has no authority to treble assessments before the board of equalization shall have had a notice filed with it, by the assessor, that the property owner has made out a list "with intent to defraud," and said board shall have given notice thereof to the property owner who shall have furnished such false list which notice was to specify the particulars in which said list is alleged to have been false. Sec. 11354, R. S. 1909; State ex rel. v. Baker, 170 Mo. 390. (11) The clerk had no right to change the record, in vacation of the board, upon the order, or at the dictation of any one. Sec. 11405, R. S. 1909; State ex rel. v. Wray, 55 Mo.App. 654; Corrigan v. Morris, 43 Mo.App. 461; State ex rel. v. Scullin, 266 Mo. 331. A change in the record, after it had been writttn up by the clerk, and a certified copy of which had been served on the property owner, was a fraud on the property owner. In doing so, it was wilfully depriving him of knowledge of the true record of the alleged board's proceedings against his property. Washington Co. v. Railroad, 58 Mo. 378. (12) "Under our system of taxation, there can be no lawful collection of a tax until there is a lawful assessment; and, there can be no lawful assessment, except in the manner prescribed by law and of property designated by law for that purpose." State ex rel. v. Lesser, 237 Mo. 318.
A. C. Whitson for respondents.
(1) The rule of strict construction in tax proceeding does not obtain in this State and has not since the decision of State ex rel. v. Bank, 120 Mo. 161; State ex rel. v Timbrook, 240 Mo. 236, 238; State ex rel. v. Wilson, 216 Mo. 286; Sec. 11383, R. S. 1909. (2) The board of equalization is not a court of limited jurisdiction. Secs. 11402, 11409, R. S. 1909; Secs. 11747, 11748, R. S. 1909. It has full power and it is the duty of the board to assess and to equalize the valuation and assessment of all property both real and personal within the county. Sec. 11403, R. S. 1909; 15 C. J. 982, sec. 414, note 15. Diehl v. Page, 3 N.J.Eq. 143; William v. Ball, 52 Tex. 603; State ex rel. v. Harrison, 226 Mo. 174; State ex rel. v. Springer, 134 Mo. 212. (3) The county clerk is by the statute (Sec. 11402, R. S. 1909) made secretary of the board of equalization, and as such had a right to correct its records to speak the truth at any time before final adjournment of the board. The board may at any time before final adjournment correct its records. State ex rel. v. Board, 108 Mo. 235; State ex rel v. Ray, 55 Mo.App. 647; Henry County v. Salmon, 201 Mo. 151; Williams v. Silvy, 84 Mo.App. 433; State v. Jeffries, 64 Mo. 376; Becker v. Schutte, 85 Mo.App. 65. The record of the board of equalization was sufficient without any correction as made by the clerk showing the classification of the property added to the assessment list. State ex rel. v. Trust Co., 261 Mo. 448. (4) The board has a right to add omitted property to the assessment list, or to assess omitted property even though no list be given. Sec. 11407, R. S. 1909; State ex rel. v. Trust Co., 261 Mo. 448; State ex rel. v. Timbrook, 240 Mo. 236. The respondent, Guy McCune, having given a false list, the board had a right to treble his assessment. Sec. 11354, R. S. 1909; State ex rel. v. Baker, 170 Mo. 391. The procedure in adding omitted property and in adding property where a false list is given is the same. In re Sanford, 236 Mo. 686. (5) The respondents having appeared before the board, the form of the notice or whether or not notice had been given at all is immaterial. On their appearance the board had jurisdiction, and by such appearance appellants waived the giving of notice and its form and such appearance cured all defects in the notice. State ex rel. v. Baker, 170 Mo. 390; State ex rel. v. Trust Co., 261 Mo. 455; State ex rel. v. Board, 108 Mo. 243; Cooley on Taxation (3 Ed.), p. 783; Smith v. Kiene, 231 Mo. 222; State ex rel. v. Galord, 73 Wis. 306; Brown v. Weatherby, 71 Mo. 152. (6) The presumption is that the board heard evidence, and that the procedure was lawful. The board has power of its own knowledge to add omitted property or to raise the valuation of property assessed. State ex rel. v. Springer, 134 Mo. 225; Hannibal Railroad v. Board, 64 Mo. 309. (7) While the board of equalization is required to hear appeals on the 4th Monday in April, it is the same board and its labors are not necessarily to be completed at that time. Sec. 11404, R. S. 1909; State ex rel. v. Vaile, 122 Mo. 43. The record as returned by the respondents, and as proved at the trial, shows a record kept by...
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