State ex rel. McMillan v. Guinn

• Citation: 274 S.W. 456,309 Mo. 291
• Decision Date: 01 July 1925
• Docket Number: 24732
• Parties: THE STATE ex rel. J. A. McMILLIAN, Collector of Revenue, v. JOHN C. GUINN, Appellant
• Court: United States State Supreme Court of Missouri

274 S.W. 456

309 Mo. 291

THE STATE ex rel. J. A. McMILLIAN, Collector of Revenue, v. JOHN C. GUINN, Appellant

No. 24732

Supreme Court of Missouri

July 1, 1925

Appeal from Jasper Circuit Court; Hon. Grant Emerson Judge.

Affirmed.

McReynolds McReynolds & Flanigan for appellant.

(1) If the county clerk by mistake extended the tax in favor of a district which did not exist the record cannot be changed and the tax is illegal and cannot be collected. State ex rel v. Shepherd, 218 Mo. 656; State ex rel. v. Brown, 172 Mo. 374. (2) The county clerk proceeded under Sec. 11183, R. S. 1919, on receipt of the estimate furnished by District 38, to assess, levy and extend the tax. But his action was void because based upon the estimate furnished by a district that had ceased to exist. (3) It was the duty of the clerk to extend the tax only in favor of Consolidated District No. One, and to ignore the null and invalid estimate furnished by District 38. R. S. 1919, sec. 11183; State ex rel. v. Burford, 82 Mo.App. 343; Board of Education v. Barrett, 101 Kan. 568. (4) The tax books are the primary and best evidence. They are the record. State ex rel. v. Hutchison, 116 Mo. 402. (5) Parol evidence is not admissible to impeach, contradict or vary a record. Here the tax records all showed that District 38 had levied the tax, and it was error for the trial court to permit the deputy county clerk to explain away or contradict that record by parol. State ex rel. v. Maloney, 113 Mo. 367; 22 C. J. p. 1085, par. 1428; p. 1070, par. 1380; 37 Cyc. p. 1063, note 75, p. 1071; State v. Faith, 180 Mo.App. 491; Ball v. Fagg, 67 Mo. 484; Hedgewood v. Shiek, 233 S.W. 58; Forsee v. Garrison, 208 Mo.App. 408; City of Huntsville v. Eatherton, 182 S.W. 767; Lebanon L. & M. W. Co. v. Lebanon, 163 Mo. 254; Keating v. Skiles, 72 Mo. 97; Cooksey v. Railway, 74 Mo. 477; Murray v. Laften, 15 Mo. 622; Lamothe v. Lippott, 40 Mo. 142; Freeman v. Thompson, 53 Mo. 192; Spring Valley Water Co. v. Alameda County, 141 P. 38; Montana Ore. Pur. Co. v. Maher, 81 P. 13; Allen v. McKay & Co., 72 P. 715.

Walter Bailey and Owen & Davis for respondent.

(1) The assessment list made out and delivered by the defendant to the assessor, on July 27, 1920, and which was read in evidence on the trial of this case, shows on its face, that the defendant was, on June 1, 1920, a resident of Common School District No. 38. Sec. 11183, R. S. 1919. (2) This list was copied or extended by the assessor on the assessor's book or list, as provided in Sec. 12790, R. S. 1919, for the tax year 1921, and said book or list carried Current Number 8946, John C. Guinn, School District No. 38, total valuation $ 233,300. (3) The assessor's book or list, for the tax year 1921, was delivered to the county court clerk, as required by Sec. 12810, R. S. 1919, and that said clerk, as provided in Sec. 12868, R. S. 1919, made a fair copy thereof, and extended thereon the taxes levied for the year 1921 in favor of the State, county, school districts, etc., duly authenticated by the certificate of the clerk and the seal of the county court. (4) The personal tax book for the year 1921 shows that it carried Current Number 8946, John C. Guinn, School District No. 38, total valuation by the assessor, $ 233,300, total valuation as adjusted by the State Board of Equalization, $ 372,160, school tax $ 1860.80. (5) The estimate furnished by said consolidated district to the county clerk's office, shows that it was estimated that it would require a fifty cent levy to raise the funds estimated necessary for school and incidental purpose for the tax year 1921. The taxes extended on the personal tax book for the year 1921, and here in question, equals fifty cents on the one hundred dollars valuation of defendant's property, as equalized by the State Board of Equalization. (6) The pleadings and the evidence in the case show that common school districts Nos. 38, 39 and 40, Jasper County, Missouri, were on October 22, 1920, under an election called and held for that purpose, consolidated into Consolidated School District No. 1. (7) The foregoing facts, show that the taxes in question were levied and extended for and on behalf of said consolidated school district, and could not be otherwise.

Woodson, J. All concur; Ragland, P. J., and Alwood, J., in the result.

OPINION

WOODSON

This suit was instituted by the plaintiff in the Circuit Court of Jasper County against the defendant to collect certain school taxes levied against him. The judgment of the court was for the plaintiff, and the defendant duly appealed.

These taxes were alleged to be due and owing to Consolidated School District No. 1 of Jasper County Missouri. Appellant contends that the taxes sued for were not levied for said school district, but were levied upon an estimate of School District Number 38, which had, at the time of the extending on the taxbooks of the taxes in question, become a part of Consolidated School District No. 1, under and by virtue of an election called and held for that purpose on October 22, 1920, and that said taxes were, therefore, illegal.

On October 22, 1920, an election for the proposed consolidation of common school districts numbered 38, 39 and 40, in Jasper County, Missouri, was held, resulting in favor of the proposed consolidation.

On April 20, 1921, a number of citizens of the old School District 38 instituted a proceeding by quo warranto against said consolidated school district and the directors thereof, for the purpose of testing the legality of the acts of the directors in certifying to the county clerk an estimate of taxes necessary for school and incidental purposes and of the rate estimated to raise the taxes estimated and so certified -- it being contended in that suit that the consolidated district could not function until June 30, 1921.

Said writ of quo warranto was, on motion of the defendants therein, quashed, and the judgment of the trial court quashing said writ was, on appeal to the Springfield Court of Appeals, affirmed.

The record does not show, as stated at page 2 of appellant's statement, that the board of directors of District No. 38, on April 5, 1921, made a levy of fifty cents on the one hundred dollars' valuation for school purposes for said District No. 38, and duly certified the same to the county clerk, and that the clerk proceeded to extend said levy on the 1921 tax books in favor of said District No. 38, but it does show that no such levy was made and certified to the county clerk.

Defendant was, on June 1, 1920, a resident of and living in District No. 38, and, on July 27, 1920, defendant made out, with affidavit attached, a list of all his property owned by him or under his control on June 1, 1920, on a form furnished him by the assessor, said form being the usual and customary form used in listing property for assessment, and was headed, as follows: "List of taxable property belonging to or under the control of John C. Guinn of Jasper Township, Section 5, Congressional Township 29, Range 33, School District No. 38, Jasper County, Missouri," etc. This list was copied or extended by the assessor on the assessor's book, as provided in Section 12790, Revised Statutes 1919. The assessor's book contained a column, opposite the name of defendant (copied therein), for the extension of school taxes, which column was by the assessor, designated as "School District No. 38."

The record shows that no estimate was furnished the office of the county clerk for School District No. 38 for the year 1921, but the evidence does show that the directors of said consolidated district furnished the county clerk, within the time required by law, with an estimate of the amount of funds necessary to be raised by taxation for school purposes and for incidental purposes for the year 1921.

The evidence further shows that the county clerk, in extending the school taxes sued for against the property of defendant, extended them in the column on the tax book copied from and designated on the assessor's book as "School District No. 38."

The total assessment of defendant's property for taxable purposes for the year 1921 was $ 372,160. The total of the testimated rate, certified to the clerk by said consolidated district for the year 1921, was fifty cents on the one hundred dollars assessed valuation. The school taxes assessed and extended on the county tax books by the clerk for the year 1921 was $ 1860.80, being fifty cents on each one hundred dollars of said assessment. At the trial, plaintiff read in evidence the tax bill filed with the petition, the substance thereof being set out in the printed record. The tax bill did not, as will be observed, state in favor of what school district the school taxes therein specified were levied and assessed. Plaintiff also read in evidence the estimate required to be certified and which was certified to the county clerk by said consolidated district, as provided in Sections 10791, 10793, Revised Statutes 1919.

Mr. Reidharr, deputy county clerk, testified that he had searched the office of the county clerk several times, the last time being on the morning of the day he testified, for any estimate of School District No. 38 for the year 1921, but failed to find any such estimate, and that he had no recollection of ever seeing such estimate. He also further testified that he helped to extend most of the school taxes and that the extension of the taxes in question on the tax book was in his handwriting, but that the head at the top of the column in which they were extended was in the handwriting of Mrs. Morton, a clerk in the office, which heading she had copied from the assessor's book or list.

The assessor's book or list reached the clerk's office about January 1, 1921, and this...