State ex rel. Thompson v. Jones

• Decision Date: 30 June 1931
• Docket Number: No. 30689.,30689.
• Citation: 41 S.W.2d 393
• Parties: THE STATE EX REL. L.D. THOMPSON as State Auditor, STATE BOARD OF EQUALIZATION and STATE TAX COMMISSION, Relators, v. K.C. JONES as Clerk of County Court of Morgan County, Respondent.
• Court: Missouri Supreme Court

41 S.W.2d 393

THE STATE EX REL. L.D. THOMPSON as State Auditor, STATE BOARD OF EQUALIZATION and STATE TAX COMMISSION, Relators, v. K.C. JONES as Clerk of County Court of Morgan County, Respondent.

No. 30689.

Supreme Court of Missouri.

Court en Banc, June 30, 1931.

Mandamus.

PEREMPTORY WRIT AWARDED.

Stratton Shartel, Attorney-General and Albert Miller, Assistant Attorney-General, for relators; L. Cunningham of counsel.

(1) The State Tax Commission in the performance of its duty under and by virtue of the provisions of Secs. 12847, 12848, R.S. 1919, was authorized to correct the assessment of property of The Texas-Empire Pipe Line Company in Morgan County for taxes payable in 1930. Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 19 S.W. (2d) 749. And the assessment, so made by the State Tax Commission, when approved by the State Board of Equalization, became final, and when certified to the county clerk (the respondent herein) it became and was his duty to compute and extend the taxes levied by lawful authority in Morgan County, and by the State of Missouri, for the year 1930, against said property of said corporation upon the valuation thereof as found, fixed and assessed by said State Tax Commission and approved by the State Board of Equalization. (2) The State Tax Commission, by virtue of Section 12847, has authority to make original and individual assessment, and when it has made such assessment, it became and was the duty of the county clerk to extend taxes in accordance with such action of said State Tax Commission. This authority is amply, completely and specifically given under said Section 12847. Brinkerhoff-Faris Trust & Savings Co. v. Hill, 19 S.W. (2d) 746. (3) The State Tax Commission acted within its powers in making the new, corrected and additional assessment of the personal property of the Texas Empire Pipe Line Company in Morgan County, subject to taxation for taxes payable in the year 1930, and in placing same upon the assessment roll. Sec. 12848, R.S. 1919; Brinkerhoff-Faris Trust & Savings Co. v. Hill, 19 S.W. (2d) 746. (4) The said assessment of the property of the Texas Empire Pipe Line Company by the said agent of the State Tax Commission, when confirmed and approved by the State Board of Equalization, became final. Sec. 12848, R.S. 1919. And, when the assessment was approved by the State Board of Equalization and such approval was certified to the respondent, it thereupon, became and was, and now is, his duty to compute and extend the taxes levied by lawful authority upon the valuation of said property, as found and fixed by said agent of the State Tax Commission and approved by said State Tax Commission and by the State Board of Equalization, and to certify the same to the Collector of the Revenue of Morgan County, for collection. Secs. 12849, 12823, 12826, 12868, R.S. 1919; State ex rel. v. Bethards, 9 S.W. (2d) 603; State ex rel. v. Dirckx, 11 S.W. (2d) 38. (5) The description: "fifteen carloads of material for the construction of an oil pipe line," on the assessment roll, of the personal property assessed, is a sufficient description of the property intended to be assessed to validate the assessment. 37 Cyc. 1051. An assessment of personal property need not describe the items of property assessed in detail and an assessment in general terms of money and all other personal property is sufficient. 26 R.C.L. 357, sec. 314; Dickson v. Rouse, 80 Mo. 224.

R.M. Livesay and M.C. Livesay for respondent; Phil M. Donnelly and Clark, Boggs, Cave & Peterson of counsel.

(1) The State Tax Commission or its agent is without authority of law to make an assessment against an individual for property omitted or left off of the tax books by the county assessing officers, and the purported assessment placed upon the assessment books of Morgan County, by the agent of the Tax Commission, was placed there unlawfully and has no force and effect and there is no duty upon this respondent to extend taxes thereon. Sec. 10, Art. 10, Constitution of Missouri; Secs. 12847-12848, R.S. 1919 (Sec. 9855, R.S. 1929; Sec. 13002, R.S. 1919 (Sec. 10012, R.S. 1929); Art. 2, Chap. 119, R.S. 1919 (Art. 2, Chap. 59, R.S. 1929); Brinkerhoff-Faris Trust & Savings Co. v. Hill, 19 S.W. (2d) 746; Laclede Land & Improvement Co. v. State Tax Commission, 295 Mo. 298, 243 S.W. 887; State ex rel. v. Jaudon, 286 Mo. 181; Boonville Natl. Bank v. Schlotzhauer, 317 Mo. 1298, 298 S.W. 732; Jefferson City Bridge Co. v. Blaser, 318 Mo. 373, 300 S.W. 778; Columbia Terminal Co. v. Koeln, 3 S.W. (2d) 1021; State v. Dirckx, 11 S.W. (2d) 38; State ex rel. Gardner v. Harris, 286 Mo. 262, 227 S.W. 818; State ex rel. Power & Transmission Co. v. Baker, 9 S.W. (2d) 589. (2) Mandamus will not lie to compel the respondent to place the extensions upon the tax books of Morgan County, for the reason that he is not in possession of said books, has no right to the possession thereof and cannot compel said books to be delivered to him for the purpose of making said extensions. Sec. 12872, R.S. 1919; Sec. 9880, R.S. 1929; State ex rel. Special Rd. Dist. v. Cole County, 300 S.W. 267; State ex rel. Nick v. Edwards, 260 S.W. 454; State ex rel. Gastineau v. Smith, 196 S.W. 115; State ex rel. Caldwell v. Redd, 68 Mo. 106; State ex rel. Stickle v. Martin, 191 S.W. 1064, 195 Mo. App. 366; State ex rel. Burton v. Bagby, 288 Mo. 482; State ex rel. Sharp v. Weeks, 93 Mo. 499; State ex rel. Kent v. Olenhouse, 23 S.W. (2d) 83. (3) There was no duty on respondent to make said extensions even if the State Tax Commission had power to make said assessment, for the reason that the description of the property is not sufficient and as required by law, in that the nature, character or kind of material is not stated nor does said assessment show the quality, kind or character of the property in each school district in which said property is assessed, and the assessment on its face shows that the division between said school district is arbitrary and not based upon the assessed value of the property in each school district as required by law. Secs. 9756, 9760, 9764, 9780, 9855, 12848, R.S. 1929. (4) Relators are not entitled to a writ of mandamus because they did not make demand upon respondent to perform the acts which they now seek to compel him to perform. State ex rel. Doud v. Lesueur, 136 Mo. 452; State ex rel. Harvey v. Linville, 318 Mo. 698.

ATWOOD, C.J.

This is an original proceeding in mandamus by the State Auditor, the State Board of Equalization and the State Tax Commission of Missouri to compel the Clerk of the County Court of Morgan County to compute and extend taxes for the year 1929 on certain personal property omitted by the county assessor from the assessment books of said county, and thereafter placed on said books and the valuation thereof fixed by said State Tax Commission and approved by said State Board of Equalization before the tax books had been delivered to the county collector.

Respondent waived issuance of the alternative writ and pleaded to the petition as though it were the alternative writ, to which pleading we shall hereinafter make appropriate reference. Relators thereupon filed motion for judgment on the pleadings.

Respondent's position is generally indicated in his statement of the case from which we quote as follows:

"In the year 1929, the Texas-Empire Pipe Line Company was building a pipe line across the State of Missouri. On the first day of June, 1929, the pipe line was not completed across the State so that oil could be pumped through it, and the State Tax Commission held that the same was not assessable by them under Section 13002, Revised Statutes 1919 (Sec. 10012, R.S. 1929), but should be assessed by the various county assessing officers under the laws relating to the assessment of individual property owners. [Article 2, Chapter 119, Revised Statutes 1919; Article 2, Chapter 59, Revised Statutes 1929.] The company turned in no tax list in Morgan County for the year 1929, and the assessor found and assessed no property of the company in Morgan County for said year.

"The State Tax Commission, purporting to act under authority conferred upon it by Sections 12847 to 12849, Revised Statutes 1919 (Secs. 9853, 9854 and 9855, R.S. 1929), held a meeting at the county-court room in the courthouse in Versailles, Morgan County, Missouri, on the 14th day of July, 1930, at which time and place, one H.S. Bales appeared as agent for the State Tax Commission, and found that the Texas-Empire Pipe Line Company had in Morgan County, on the 1st day of June, 1929, `fifteen carloads of material for the construction of an oil pipe line' of the actual value of twenty-five thousand dollars. He further found that such property had not been returned by the company, or assessed by the county assessor or board of equalization, and had been omitted from the tax rolls of said county. He fixed the valuation of said property and distributed the same among three school districts in said county, but did not place it in any road district. The entry of this property upon the assessment books appears on page 23 of the abstract. At said time and place he also wrote in said assessment book his certificate of these proceedings.

"It is to be noted that in entering the property upon the assessment books, the agent of the State Tax Commission did not enter the property as assessors are required to do, but wrote the name of the company and following it and over several lines wrote: `fifteen carloads of material for the construction of an oil pipe line.' Then in the column provided for valuation he placed $5,000 in school district number one, $12,500 in school district number ten, and $7,500 in school district number nine. The assessment does not show the nature, kind or quantity of property in any district, but is made to apply to all the districts in a lump. The assessment does not show what road districts the property was located in. In the certificate of the agent,...