State ex rel. Mills v. Fleming

• Citation: 204 S.W. 1085,275 Mo. 509
• Parties: THE STATE ex rel. JOHN MILLS, Collector of City of Aurora, v. KATHARYN FLEMING et al., Appellants
• Decision Date: 16 July 1918
• Court: United States State Supreme Court of Missouri

204 S.W. 1085

275 Mo. 509

THE STATE ex rel. JOHN MILLS, Collector of City of Aurora, v. KATHARYN FLEMING et al., Appellants

Supreme Court of Missouri, Second Division

July 16, 1918

Appeal from Lawrence Circuit Court. -- Hon. Carr McNatt, Judge.

Reversed and remanded.

John L McNatt for appellant.

(1) The taxes for 1912 were not subject to suit until the first day of January, 1914. Therefore this suit brought on the eighth day of December, 1913, was premature, and the admission in evidence of the tax bill containing such tax was error. R. S 1909, sec. 11491; State ex rel. Hudson v. Carr, 178 Mo. 229. (2) All Armories owned by the State and all buildings leased by the State for military purposes shall be exempt from taxation for all purposes during the period of such ownership, lease or use. Therefore the testimony that this property was partially used for other purposes was incompetent as a defense, and an attempt to read into the statute something not intended by the Legislature. R. S 1909, sec. 8378.

H. H. Bloss for respondent.

(1) The statutes relating to the bringing of suits is not the same where the party defendants are residents or non-residents. In cases of non-residents the Statute provides that where service can be had on them the plaintiff is not required to wait one year after the tax becomes delinquent. R. S. 1909, sec. 11506. (2) Exemption from taxation must be in terms too plain to be mistaken, and should be confined to the strict terms of the law granting it. Pacific Railroad Co. v. Cass County, 53 Mo. 17; State ex rel. v. Railroad Co., 89 Mo. 523; State ex rel. v. Railroad Co., 99 Mo. 30; State ex rel. v. Arnold, 136 Mo. 446. (3) Where a statute exempts a building from taxation because of its use for some purpose which the State does not desire to tax and exempts because of that reason by such statute and the Constitution, then the building must be exclusively used for that purpose, and where the owners derive a benefit from other businesses through the property, the same is not exempt. North St. Louis Gymnastic Society v. Hudson, 12 Mo.App. 342, 85 Mo. 32; State ex rel. v. McGurn, 187 Mo. 238; Fitterer v. Crawford, 157 Mo. 41. (4) Exemptions being in derogation of equal rights are not to be favored by the courts. State ex rel. v. Johnson, 214 Mo. 656.

WHITE, C. Roy C., concurs.

OPINION

WHITE, C.

The suit is brought by the collector for the city of Aurora to recover taxes for the years 1907 to 1912 inclusive, charged against Lot 7, Block 6, of the original survey of the city of Aurora. The circuit court rendered judgment for plaintiff for all taxes except for the year 1907.

The answer, among other things, pleads that the lot described in the petition was leased and rented to the State of Missouri for military purposes and was used by the National Guard of the State of Missouri. The reply of the respondent contains a general denial, and other matters which are not set out in the abstract.

On the trial, after the plaintiff introduced the taxbill and rested, the defendant introduced Colonel W. A. Raupp, Colonel of the Second Regiment of the National Guard of Missouri. He testified that Company G of the Second Regiment, part of the time under a verbal lease and part of the time under a written one, had used the building on the premises as an armory all the time during the years for which the taxes sued for were assessed, excepting a short period of a few months; that fifty dollars a month was paid for the use of the building for the military band and Company G.

An accurate description of the building does not appear in the record. Enough is shown to indicate that there was a basement, a main floor called the "Auditorium" on the ground floor, and rooms occupying part of the space upstairs; whether the second floor covered all the space or not is not shown. Once a week at night the Company used the main room, called the auditorium, for the purpose of drill, and also at such other times as they desired to use it for the purpose of inspection; the Company was inspected by a Government official at irregular intervals. The military band also occupied portions of the building. During part of the period the basement was used for an arsenal, and the guns were stored there; during all the period it was used for the purpose of bath and toilet by men of the Company. The janitor of the building had rooms upstairs and some of the offices were used by the Company.

Colonel Raupp testified that a couple of rooms were cut out down-stairs for offices and used by someone else, and possibly two rooms upstairs. It was also shown that there were billiard tables in the basement, but whether they were used by the Company, in connection with the military occupation, or by other tenants was not shown. At times some part of the building "was made into a theatre and used for a skating rink." That appears to be the room used by the Company for its drills. Whether this use was merely permissive by the military authorities in charge, or whether there were other tenants that had exclusive use of the Auditorium at certain periods, is not shown. The evidence is very indefinite as to the extent of the use of the building but the military band and Company G had access to practically all parts of it. There was no definite restriction of their right either as to the time of use or parts to be occupied. No evidence appears as to whether anybody paid rent to the owners for the use of any part...