State ex rel. Thompson v. Bethards

• Decision Date: 02 October 1928
• Docket Number: 29075
• Citation: 9 S.W.2d 603,320 Mo. 1164
• Parties: The State ex rel. L. D. Thompson, State Auditor, et al., Composing State Board of Equalization, v. Lewis C. Bethards, County Clerk of Shelby County
• Court: Missouri Supreme Court

9 S.W.2d 603

320 Mo. 1164

The State ex rel. L. D. Thompson, State Auditor, et al., Composing State Board of Equalization, v. Lewis C. Bethards, County Clerk of Shelby County

No. 29075

Supreme Court of Missouri

October 2, 1928

Peremptory writ awarded.

North T. Gentry, Attorney-General, and Smith B Atwood, Assistant Attorney-General, for relators.

(1) The County Board is not called upon to make a special order indicating either its acceptance or confirmation of, or assent to, the action of the State Board, and being without power to alter or change the same in any way no reason for such order can exist. It must merely conform its action to such order. (2) The power to execute an order carries with it the power to enforce it. The failure of the County Board in its duty does not relieve respondent of his duties in the premises; neither is respondent bound by an order of the County Board which it had no power to make. The duties, the performance of which it sought, are ministerial. Mercantile Trust Co. v. Schramm, 269 Mo. 489. Being ministerial duties which respondent has refused to perform mandamus is the proper remedy to compel performance.

Roland F. O'Bryen and Harry J. Libby for respondent.

(1) The writ of mandamus will be denied unless the relators show (a) a clear, unequivocal, specific and positive legal right to have performed the thing or action demanded, and (b) that it is the clear legal duty of the party sought to be coerced, to do the thing he is called on to do. State ex rel. Gehner v. Thompson, 293 S.W. 398; State ex rel. Dolan v Dickey, 280 Mo. 536; State ex rel. Kern v. Stone, 269 Mo. 342; State ex inf. Barker v. Gas Co., 254 Mo. 532; State ex rel. Porter v. Hudson, 226 Mo. 239. (2) In mandamus parties are conclusively bound by admission in their pleadings, and by filing a motion for judgment on the pleadings the relators admit all well-pleaded facts in the return. State ex rel. Tompkins v. Shipman, 290 Mo. 65. (3) Relators by their petition admit that there is no difference of opinion between the assessor and the State Board as to the true value of the lands. The assessor valued said lands at $ 12,679,945, and relators in their petition frankly conceded and allege therein that the assessor did in fact assess said lands at their true value in money, and by so doing have entirely eliminated from the case any controversial opinion as to values, and the case stands here for determination on the law applicable to the admitted facts and conceded values. (4) The State Board of Equalization, has no legal right, power or authority to value farm lands at any per cent in excess of its admittedly true value in money, or by any order or judgment to impose upon said lands an increase in valuation in excess of their actual value. The attempt by the State Board to increase the value of Shelby County farm lands ten per cent in excess of their admitted true value in money is violative of Secs. 3 and 4, Art. 10, Constitution of Missouri, of Sec. 1, Art. 14, Constitution of United States, and of Sec. 12855, R. S. 1919. State ex rel. Tompkins v. Shipman, 290 Mo. 65; Boonville Nat. Bank v. Schlotzhauer, 298 S.W. 732. (5) The constitutional requirement as to uniformity in taxation applies to the mode of valuation, as well as to the rate of levy, and the Constitution may be violated in a lack of just proportions in which the property is assessed quite as much as in the rate or percentage at which the tax is actually laid on the assessed value. Railroad & Tel. Cos. v. Board of Equalizers, 85 F. 302; First Nat. Bank v. Christensen, 39 Utah 568; Spokane Ry. Co. v. Spokane County, 82 Wash. 24; White River Lumber Co. v. Elliott, 226 S.W. 164; Union Pac. Ry. Co. v. Council Bluffs, 175 N.W. 7; Eminence Dist. Co. v. Henry County Board, 178 Ky. 811; Weyerhauser Timber Co. v. Pierce County, 97 Wash. 534; Drew County Timber Co. v. Board of Equalization, 187 S.W. 942. (6) Where the State Board of Equalization increases an assessment, without jurisdiction on its part to do so, its acts, proceedings and order in that behalf are void, and such illegal increase may be interposed by a taxpayer as a good defense pro tanto to the collection of the tax. State ex rel. Wyatt v. Vaile, 120 Mo. 47. (7) The county clerk is a mere ministerial officer. Nowhere in the Constitution or laws is he vested with any judicial power to equalize either assessment or valuation. He is a mere clerical officer, charged with extending the tax on the tax books of the county. The duties devolved on him by Section 12826, to adjust the tax books according to the report of the State Board, is conditional, not absolute. The authority is special, not general. His authority to so adjust is strictly limited to the single instance of the report from the State Board not being received during the session of the County Board. It is only in the emergency created by a belated report from the State Board, arrived after adjournment of the County Board, that he has any power or authority to act. He acts then in an emergency to prevent a failure of taxation. But he acts because there is an express statute, authorizing him to act, absent which, there would be no authority and no justification for his acts. When the report from the State Board did arrive during session of the County Board, and was by the clerk laid before them, and was, in fact, acted upon by them, although in disregard of the valuation fixed by the State Board, the county clerk had, under the above section, no authority whatever to act and adjust the tax books according to the valuation fixed by the State Board. To increase the assessor's valuation ten per cent, is to ignore entirely, and thus totally defeat the equitable equalization as between the tracts.

White, C. J. All concur, except Gentry, J., not sitting.

OPINION

WHITE

Relators pray this court to grant a writ of mandamus commanding the Clerk of the County Court of Shelby County to extend on the assessor's books of that county the aggregate valuation of lands of said county as equalized and assessed by the State Board of Equalization.

To the alternative writ respondent filed his return, and thereupon the relators filed a motion for judgment on the pleadings. The facts are as follows:

Early in January, 1928, the Assessor of Shelby County returned to the county court his assessor's book, duly verified, fixing the aggregate value of such lands at $ 12,697,945.

Respondent, County Clerk of Shelby County, February 18, 1928, certified an abstract of the lands and their valuations to the State Board of Equalization.

The State Board of Equalization, March 28, 1928, increased by ten per cent the aggregate valuation of the said lands, making the valuation $ 13,967,739.

The County Board of Equalization, April 20, 1928, made the following order:

"It is the order of the County Board of Equalization, after being presented by the secretary of the board with the notice of ten per cent increase in valuation on farm lands as required by the State Board of Equalization and after consideration of same it was agreed by the County Board of Equalization that they could not in their opinion increase farm lands to the valuation set by the state boards, and refused to make said increase in valuation of farm lands, and after hearing all complaints and adjusting the assessor's books as to comparative values, the County Board of Equalization adjourned sine die.

"L. C. Bethards,

"Secretary of Board Equalization."

It is alleged in the return that the County Board of Equalization of Shelby County at that time equalized the valuations of the tracts in Shelby County so that the aggregate value was $ 12,672,565, -- slightly larger than the original valuation of the assessor. The return then admits that respondent has failed and refused and still fails and refuses to extend and compute the taxes levied against the farm lands of Shelby County upon the valuations fixed by the State Board of Equalization, and has extended them upon valuations fixed by the County Board of Equalization.

I. It is first contended by the respondent that the State Board of Equalization had no right or power to increase the valuations of the land in Shelby County ten per cent, "in excess of their admitted true value in money."

This "admitted true value in money" is taken from the petition of relators where it is alleged that the Assessor of Shelby County returned to the county court his assessor's books, "which assessment books contained, among other things, 'the land list' required by Section 12790, Laws 1925, page 367, which 'land list' contained all lands of said county by him assessed according to its true value in money at the time of the assessment, as provided by Section 12802, Revised Statutes 1919."

The petition nowhere states that the valuation placed upon the land by the State Board was the true value; therefore, it is argued that this allegation of the petition is conclusive that the valuations placed upon the land by the assessor was the true value in money, and the action of the State Board in raising those values ten per cent was contrary to certain sections of the Constitution.

Section 12802, Revised Statutes 1919, provides that the assessor shall assess property on the assessor's book "at its true value in money at the time of the assessment," with the tracts arranged as provided in Section 12790. Under Section 12810, it is the duty of the county clerk to make out an abstract of the assessment book and certify the same to the State Auditor. And under Section 12855, the State Auditor must lay such abstracts before the State Board of Equalization, whose duty it is to equalize such property among the several counties, with authority to add to the valuation of each class of property,...