State ex rel. Sedalia Water Co. v. Harnsberger

• Decision Date: 02 March 1929
• Citation: 14 S.W.2d 554,322 Mo. 94
• Parties: The State ex rel. Sedalia Water Company v. Harry H. Harnsberger, Collector of Revenue of Pettis County, Appellant
• Court: Missouri Supreme Court

14 S.W.2d 554

322 Mo. 94

The State ex rel. Sedalia Water Company v. Harry H. Harnsberger, Collector of Revenue of Pettis County, Appellant

Supreme Court of Missouri

March 2, 1929

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Affirmed.

E W. Couey, George F. Longan and Paul Barnett for appellant.

(1) The taxpayer did not specify what part of the tax he desired to pay. The statute provides that "the collector shall receive taxes on part of any lot, piece or parcel of land charged with taxes; provided, the person paying such tax shall furnish a particular specification of the part, and if the tax on the remainder of such lot or parcel of land shall remain unpaid the collector shall enter such specification in his return, to the end that the part on which the tax remain unpaid may be clearly shown." Sec. 12905, R. S. 1919. The above section applies only to land, and does not give the taxpayer the right to pay a part of his personal tax. State ex rel. v. Railroad Co., 178 S.W. 444; 13 C. J. 545; 1 C. J. 558; Knapp v. Pepsin Syrup Co., 137 Mo.App. 472; Adams Express Co. v. Black, 62 Ind. 128. Under the statute, no equivocal position may be tolerated upon the part of a taxpayer who wishes to pay in full on a part of his real estate. The collector is entitled to have the question at rest beyond all further controversy. The taxpayer must furnish a particular specification of the part. Sec. 12905, R. S. 1919. (2) Informalities in the assessment of the property do not invalidate the tax. If the contention of relator is correct and the contention of respondent is wrong, then item 7 and item 10 should have been consolidated as one assessment on item 7. No assessment of property or charges for taxes thereon shall be considered illegal on account of any informalities in making the assessment or in the tax lists. Sec. 12801, R. S. 1919. Mere informalities in making the assessment of property or charges for taxes thereon, or in the tax lists, or in making or certifying the back tax book, do not effect the validity of the tax. State ex rel. v. Wilson, 216 Mo. 215; California Water Co. v. Los Angeles Co. (Cal.), 101 P. 547; St. Louis Ry. v. Gracey, 126 Mo. 472; State ex rel. v. Philips, 137 Mo. 259; State ex rel. v. Bank, 120 Mo. 161; State ex rel. v. Dungan, 265 Mo. 353. (3) The tender of taxes was insufficient because the water mains are personal property. Although the mains and pipes of gas and water companies, if laid in lands belonging to the company, seem to be universally regarded as a part of the realty, yet, when they are laid in streets or property belonging to others the authorities are conflicting. In Missouri and in a number of other states such pipes and mains, when laid in streets or property belonging to others, are considered to be personal property. Mulrooney v. O'Bear, 171 Mo. 613; Shelbyville Water Co. v. People, 140 Ill. 545; People v. Board of Assessors, 39 N.Y. 81; Memphis Gaslight Co. v. State, 6 Coldw. (Tenn.) 310; Dunsmuir v. Gas Co., 24 Wash. 104; Chelsea Water Works v. Bowley, 17 Q. B. 358; St. Croix Elec. Co. v. Milltown, 31 N. B. 452. Pipes laid under city streets are personal property within the meaning of the Missouri statutes concerning taxation; because, from their nature, they cannot be sold for taxes. Under the Missouri law a tax on real estate can only be collected by selling the real estate, without any right to a personal deficiency judgment. Charter Oak Land Co. v. Bippins, 200 Mo. 688; State ex rel. Hayes v. Snyder, 139 Mo. 549. On the other hand, the collection of the personal tax is by a suit in personam, resulting in a general judgment, which is a lien upon all the taxpayer's property without exemption. Sec. 12932, R. S. 1919. Where it is doubtful whether property purported to be taxed falls within the description used by law, resort should be had to other statutes relating to the subject to ascertain the legislative intent. Hannibal Ry. Co. v. Shacklet, 30 Mo. 550. Even if the water pipes under city streets should be considered real estate for some purposes, yet, under the scheme of the Missouri taxation statutes they are personal property. It is an old doctrine that property may be considered real estate for some purposes and personal property for others. Thus, a growing crop being considered personal property for some purposes, title will pass under a bill of sale, according to the provisions applicable to sales of personal property. Garth v. Caldwell, 72 Mo. 622; Glass v. Blazer, 91 Mo.App. 564. On the other hand, the foreclosure of a deed of trust upon the land carries with it title to the growing and unsevered crop even as against one who purchased the crop as personal property. For such purposes the growing crop is real estate. Farmers Bank v. Bradley, 288 S.W. 774. A dam built on another man's land with his consent, has been held to be personal property. Southard v. Hill, 44 Mo. 92. Buildings constructed upon the land of another, but with the understanding or agreement that they are to be removed, have been held to be personal property. Brown v. Turner, 113 Mo. 27. fixtures are considered real estate for some purposes and personalty for others. (4) Even if the water mains were realty, the tender would have been insufficient. Even in the states where it is held that water mains, gas mains, etc., laid in land belonging to another, constitute realty, it is held that the mains are appurtenances of the land itself. Stearns Light & Power Co. v. Trust Co., 223 F. 962; California Water Co. v. Los Angeles Co. (Cal.), 101 P. 547; Colorado Fuel Co. v. Water Co., 53 P. 232; Capital City Gas Co. v. Ins. Co. (Iowa), 50 N.W. 579. If the mains constitute realty, it therefore follows that the taxpayer did not have the right under the statute to pay the taxes on all of the real estate except the water mains. He has a right, under the statute, to pay all the taxes on a part of the real estate, but not a part of the taxes on all of the real estate. State ex rel. v. Railroad Co., 178 S.W. 444. If the mains were real estate, the acts of the assessor and the county clerk in setting forth the valuation and the taxes in two items instead of one constitute but a mere irregularity, which would not invalidate any part of the tax. Authorities under point 2. (5) Mandamus will not lie because the collector was not clearly wrong. A collector must be clearly wrong in refusing a tender of taxes, or mandamus will not lie. Stuard v. Thompson (Tex.), 251 S.W. 278; State ex rel. v. Brown, 172 Mo. 347. The erroneous assessment of mains as personal property is an informality which, under a statute like ours, will not invalidate the assessment. California Water Co. v. Los Angeles Co., 101 P. 547.

James T. Montgomery and Montgomery, Rucker & Hayes for respondent.

(1) When the collector received the water company's letter enclosing the check for $ 8021.47 and the duly certified tax bill from which item 10 was deleted and the total of item 10 deducted from the total of the fourteen items, the collector knew exactly what items the check was intended to cover. The collector's refusal to apply this payment to the thirteen items was a denial of the water company's right to pay these thirteen other items without paying item 10. (2) The statute requires each parcel of land to be assessed and valued separately (Sec. 12802) and provides that each lot shall be chargeable with its own taxes (Sec. 12803), and that the State shall have a lien on each lot for its own taxes (Sec. 12929). (3) The right of the owner of two or more pieces of real estate, which are separately assessed, to pay the taxes upon one without paying the taxes upon the other is not statutory, but is a necessary corollary from the statutory provisions which limit the lien on any one tract to the amount assessed against it. Our whole taxing system is based upon the idea that the amount assessed against each tract of land is in effect, a separate tax. Richey v. Moor, 249 S.W. 174; 2 Coolev. Taxation (3 Ed.) 808, 809. This right is not derived from Section 12905 of our statutes. State ex rel. v. Koeln, 255 Mo. 301; Howell v. Lamberson, 231 S.W. 872; Dolman v. Pitt. 109 Mo.App. 133. (4) Water mains and pipes owned by a water company and laid in the streets of a city and connected with a pumping station also owned by the same water company, are deemed a part of the real estate upon which the pumping station is located and are in the nature of appurtenances or fixtures. Providence Gas Co. v. Thurber, 2 R. I. 21; Paris v. Water Co., 85 Me. 333; Warwick v. Carr, 24 R. I. 231; Tidewater Pipeline Co. v. Berry, 53 N. J. L. 212; W. U. Tel. Co. v. State (Tenn.), 9 Bax. 509; Capital City v. Ins. Co., 51 Iowa 31; Dudley v. Corporation, 100 Mass. 183; Oskaloosa Water Co. v. Board (Ia.), 15 L. R. A. 296; Gas Co. v. Baltimore (Md.), 1 L. R. A. (N. S.) 267; Re Des Moines Water Co., 48 Iowa 324; Water Co. v. Fondulac (Wis.), 52 N.W. 439; Herkemer v. Johnson, 55 N.Y.S. 924; Reynolds v. MacLemore (Tex.), 241 S.W. 606; Stearns v. Central Trust Co., 223 F. 962; Badger Lumber Co. v. Water Co. (Kan.), 15 L. R. A. 652; Coolidge v. Hagar, 43 Vt. 13; California Gas Co. v. Los Angeles Co. (Cal.), 101 P. 547; Colorado Fuel Co. v. Water Co. (Colo.), 53 P. 232; City of Grand Haven v. Water Works (Mich.), 78 N.W. 890; Southern Supply Co. v. Rolla, 75 Mo.App. 822. This is the rule in every State excepting those in which there are statutes either making such pipes and mains personal property for purposes of taxation or evincing a legislative policy which is more consonant with their being held to be personal property. Instances of cases holding that gas pipes and mains are personal property under statutes making them so, are Commonwealth v. Lowell Gaslight Co., 12 Allen (Mass.), 75; Memphis Gaslight Co. v. State, 6...