State ex rel. Teare v. Dungan
| Decision Date | 01 June 1915 |
| Parties | THE STATE ex rel. TEARE, Collector of Holt County, v. THOMAS C. DUNGAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Holt Circuit Court. -- Hon. W. C. Ellison, Judge.
Affirmed.
T. C Dungan pro se.
(1) The court erred in making its finding for the plaintiff and rendering its judgment and decree for the plaintiff. No assessment was made of said lands as required by law. To recover there must be a legal assessment or there can be no delinquent taxes. State ex rel. v. Scott, 96 Mo. 72; State v. Spencer, 114 Mo. 574. The action of the assessor having been without notice to defendant is void. Abbott v. Lindenbower, 42 Mo. 162; Thomas v Chapin, 116 Mo. 396; R. S. 1899, sec. 9146; Sec. 11350 R. S. 1909; State ex rel. v. Fullerton, 143 Mo. 682; State ex rel. v. Voselsang, 183 Mo. 17; State ex rel. v. Railroad, 114 Mo. 11; State ex rel. v. Tregenheim, 114 Mo. 574. (2) The court erred in assuming to act as and for the revenue officers of Holt county, for it made an assessment of its own, fixing valuations, the same as that fixed by the forgery of the assessor's book by the county clerk. (a) There was no assessment thereof made by the assessor of Holt county in any of the methods prescribed by law. (b) The court assumed to act as a board of equalization in raising the valuation, if valuation it can be called, of defendant's land from that appearing first on the assessor's book, and without notice to defendant in any way. (3) If there was any assessment made of defendant's lands or any valuation fixed thereon it was done by the assessor's clerk and such valuation was that appearing on the previous year's assessor's book, as such clerk informed defendant that such valuation had been so entered, and defendant had the right to consider and believe it would so remain unless he had notice from the assessor or board of equalization that such assessment and valuation had been or would be changed. No such notice was given or had by defendant. He is presumed to have been satisfied with such assessment and valuation. Cooley on Taxation, 266-268; Mining Co. v. Neptune, 19 Mo.App. 438; Butler v. Supervisors, 20 Mich. 22; Sioux Ry. Co. v. Washington Co., 3 Neb. 3043. If the board can not change such assessment so judicially made, by the return of the assessor, without notice to the taxpayer, how can such board with full knowledge of a change made and a forgery of the assessor's book increasing defendant's land valuation, by the county clerk, its own secretary, by silent acquiescence do indirectly what it cannot do directly? The effect is the same to the taxpayer as it illegally deprives him of his rights and attempts without process of law, to take his property. Mining Co. v. Neptune, 19 Mo.App. 443. (4) The assessment of lands is not made until the assessor enters the lands or list into the assessor's book. State ex rel. v. Reed & Sutton, 159 Mo. 85. While the defendant might have had notice of assessment as shown by the return of the assessor's book and ample means for redress for any unauthorized action of the assessor by an appeal, no opportunity was afforded him to know of any change or increase made by the county clerk and ratified by the board of equalization. State ex rel. v. Springer, 134 Mo. 224; State ex rel. v. Stamm, 165 Mo. 73; Black v. McGonigle, 103 Mo. 133; State ex rel. v. Baker, 170 Mo. 195; State ex rel. v. Carr, 178 Mo. 235.
Don M. Hunt for respondent.
(1) There was a valid assessment. State ex rel. v. Cunningham, 153 Mo. 642; State ex rel. v. Casey, 210 Mo. 253; State ex rel. v. Reed, 159 Mo. 83; State ex rel. v. Carr, 178 Mo. 233; State ex rel. v. Bank, 120 Mo. 161; Sec. 11385, R. S. 1909. (2) The defendant took no appeal from the assessment to the board of equalization, therefore he has forfeited his right to object to the valuation placed on the property. Dean v. Todd, 22 Mo. 90; State ex rel. v. Hoyt, 123 Mo. 356; State ex rel. v. Bank, 120 Mo. 175. (3) All other acts with regard to the tax levy being legal the unauthorized and unlawful acts of an officer cannot prevent the collection of the amount of tax which is due. State ex rel. v. Carr, 178 Mo. 234; State ex rel. v. Bank, 120 Mo. 173. (4) If a valid assessment is shown, its entry upon the tax book and the failure of the property owner to pay it when due, a good cause of action is made out, and all other requirements and proceedings are mere formalities and intended to facilitate the collection of the taxes. State ex rel. v. Wilson, 216 Mo. 287; Rockland v. Ulmer, 84 Me. 503; State ex rel. v. Carr, 178 Mo. 239.
On March 10, 1911, plaintiff, as collector of Holt county, Missouri, sued defendant to recover one hundred and forty-four dollars and fifteen cents, the aggregate amount of taxes, interest, penalties and costs alleged to be due on six tracts of land, belonging to defendant and located in said county. Said taxes are charged to have been delinquent upon each of said tracts for the year 1906. The petition alleges the election and qualification of said Teare as collector of said county; that defendant was the owner of each of said six tracts of land, which are separately described in the petition; that all of said land was liable for taxation, etc., for each of the years mentioned; that the assessor of said county was duly elected and qualified; that he listed and assessed the value for taxation of said tracts of land separately; that he made an assessor's book for said county as required by law, for each of the years for which said lands were so listed and assessed for taxation, which said book contained a complete list of all the taxable property of said county; that he entered in the parts known as the Land List and the Real Estate Book, in numerical order, each of said tracts of land; that he did, on or before January 20th next following each of said years, in which each of said assessments was made, and after the first day of June, next preceding, for each of the said years, for which said assessments were made respectively, make out and return to the county court of said county a fair copy of the assessor's book, made as aforesaid, duly verified by his affidavit annexed thereto, as required by law; that said assessments and valuations for each of said years were duly abstracted by the county clerk of said county and laid before the then State Board of Equalization, as the law required; that said assessments and valuations for each of said years were duly equalized by said Board of Equalization; that said equalized assessments and valuations were duly certified to the county clerk aforesaid, who thereupon, for each of said years, furnished one copy to the then assessor of said county; that another copy was laid before the County Board of Equalization of said county; that the County Board of Equalization aforesaid, did at the time and in the manner required by law, for each of said years, equalize and adjust said valuations and assessments, did give due and lawful notice to all persons interested therein that said board would meet at the time and place prescribed by law, to hear appeals from said valuations and assessments of said assessor on account of its action in raising and equalizing assessments and valuations, and did all other things in this connection required by law; that each of said books was thereafter corrected, adjusted and the valuation duly extended as so equalized by and in accordance with the decisions of the State Board of Equalization and said County Board of Equalization; that after such final valuations, adjustments and assessments so made as aforesaid, and by virtue of the laws of Missouri, the duly elected, qualified and acting officers and agents of said state and county, having full authority so to do, as required by law, did by orders of record fixing the rates thereof, within the limits required by law, levy upon said real estate as so listed, valued, assessed and adjusted, in due proportion to its true valuation as so listed, valued, assessed and adjusted, certain state, county, school and other taxes on the separate tracts of said real estate for the years, and in favor of the several funds, for the purposes, and to the amounts in the aggregate of $ 126.47, as shown by a tax bill, duly authenticated by certificate of the county collector, and attached to said petition.
Other allegations follow, but as the sufficiency of the petition is not questioned, and as the case was tried upon an agreed statement of facts, we do not deem it necessary to set out any further synopsis of the petition.
The answer denied the material allegations of petition, and contained other averments tending to show that the law was not complied with in the making of said assessment, etc.
AGREED STATEMENT OF FACTS.
The case was tried in the court below upon the following agreed statement of facts:
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