State ex rel. Wyatt v. Vaile

• Citation: 26 S.W. 672,122 Mo. 33
• Parties: The State ex rel. Wyatt, Collector, v. Vaile, Appellant
• Decision Date: 14 May 1894
• Court: Missouri Supreme Court

26 S.W. 672

122 Mo. 33

The State ex rel. Wyatt, Collector,
v.
Vaile, Appellant

Supreme Court of Missouri, First Division

May 14, 1894

Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Affirmed.

J. M. Southern and Warner, Dean, Gibson & McLeod for appellant.

(1) Of the necessity for a legal assessment no question can be made. Taxes by valuation can not be apportioned without it. It is the foundation of all which follows it. Without a valid assessment taxes levied have no support and are nullities. Cooley on Taxation [1 Ed.], p. 260; The State ex rel. v. Cook, 82 Mo. 185; State ex rel. v. Schooley, 84 Mo. 442; State ex rel. v. Railroad, 114 Mo. 1. (2) Real estate is assessed but once in two years. Such assessment is the basis of taxation for the next two years succeeding. The assessment for the land tax for 1888 and 1889 -- involved in this suit -- should have been made in 1887. R. S. 1889, sec. 7552. (3) To constitute a valid assessment on real property, there must be an assessment by the assessor, an equalization by the county board of equalization, at a meeting at the office of the county clerk on the first Monday in April, in biennial even years. R. S. 1889, secs. 7517, 7518, 7519; The St. Joseph Lead Co. v. Simms, 108 Mo. 222. (4) The trial court in its instructions 5 and 6 declared that there was no meeting of the board of equalization for Jackson county at the office of the county clerk at the courthouse, in the city of Independence, in the year 1888; that the pretended meeting for that year was illegal and void. (5) The action of the state board of equalization in reducing the valuation of lands in Jackson county twenty-five per cent. and town lots in said county fifty per cent. was illegal and void. The taxes in controversy for the years 1888 and 1889, being levied upon such valuation, were invalid. While the state board of equalization may raise or decrease the aggregate assessed value of the property of the entire county, it has nothing to do with adjusting the values of the different pieces of real estate in any county. Constitution, 1875, art. 10, sec. 7513; The St. Joseph Lead Co. v. Simms, 108 Mo. 222; McKee v. Supervisors, 53 Ill. 447. (6) The constitution contemplates equal and uniform taxation. No more effectual method of inequality in taxation could be devised than that of discrimination by the state board of equalization in assessed values, as in the case at bar, between platted and unplatted real property in a county. Constitution, 1875, art. 10, secs. 3, 4; State ex rel. v. Schooley, 84 Mo. 448. (7) The county board of equalization is a judicial body, created and deriving all its powers from the statute. The time and place of its meetings are fixed by statute. The judgment of a circuit court held at a time and place unauthorized by law is void. It follows that the acts of a board of equalization at a time and place unauthorized by law are null and void. R. S. 1889, sec. 3428; The St. Joseph Lead Co. v. Simms, 108 Mo. 222; Henderson v. Hawkins, 65 Mo. 269; Cooley on Taxation [1 Ed.], p. 265. (8) Assuming that the meeting of the county board of equalization on April 3, 1888, was legal (which we deny), yet the defendant was denied a hearing there for the following reasons: First. The undisputed evidence is that at Kansas City equalization of values of real estate were only attempted to be made in range 33, while the taxes in question were all on real estate in range 32. Second. The county board of equalization at Kansas City, by an order fixed the date for its meeting at Independence (the county seat) April 16, continuing four days. (9) The nunc pro tunc order of the county court entered at the January term, 1890, upon the delinquent tax list of 1888 is null and void. There was nothing before the county court upon which to base such order. There was no entry in the minutes of the county court, or in any minutes kept by any judge or clerk thereof, nor was there any paper filed upon which said order of the court could be made. Dunn v. Railey, 58 Mo. 134; State v. Jeffers, 64 Mo. 378; Priest v. McMasters, 52 Mo. 60; Hansbrough v. Fudge, 80 Mo. 307; Freeman on Judgments [1 Ed.], sec. 68. (10) Nunc pro tunc entries can not be made merely to supply past omissions by the court. In all cases in which an entry nunc pro tunc is made, the record should show the facts authorizing the entry. The law of this state unquestionably is that you can not, without something of record to amend, have an entry nunc pro tunc. Hansbrough v. Fudge, 80 Mo. 307, 309; Bank v. Allen, 60 Mo. 474; Gibson v. Chouteau Heirs, 45 Mo. 171; Jillett v. Bank, 56 Mo. 304. (11) The prima facie case made by the tax bills for the delinquent taxes for the year 1888 is rebutted by the record evidence showing that there was no delinquent list for that year on which they could rest. There is no independent proof, as was in 113 Mo. 94, of a regular levy and assessment for the taxes for that year on the land of the defendant. State ex rel. v. Scott, 96 Mo. 72; State ex rel. v. Hurt, 113 Mo. 90. (12) The failure to comply with the statutory provisions is fatal to a recovery by the plaintiff in this case. State ex rel. v. Schooley, 84 Mo. 447; Howard v. Heck, 88 Mo. 456; State ex rel. v. Cook, 82 Mo. 185; Henry v. Bell, 75 Mo. 194; Warrensburg v. Colburn, 77 Mo. 56.

J. G. Paxton for respondent.

(1) The meeting of the county board of equalization at the office of the county clerk in Kansas City on April 3, 1888, was a legal meeting of the board, at the time and place fixed by the statute, at which the defendant could have been heard. (2) At the meeting of the board at Independence, in the county court room in the building in which was the county clerk's office, on April 21, 1888, defendant appeared, asked that his assessment be reduced, and his request was denied. (3) When the cause is tried by the court and its finding is the only one warranted by the evidence, it is immaterial whether the declarations of law given were correct. Williamson v. Drew, 9 Mo.App. 597; Wilson v. Ins. Co., 35 Mo.App. 521; Cooper v. Ord, 60 Mo. 431. (4) The action of the state board was authorized under section 7514, Revised Statutes, 1889. Black v. McGonigle, 103 Mo. 192. (5) The evidence is that the record of the county court for March, 1889, showed that the delinquent list of 1888 was approved. This is all that the law requires. State, etc., v. Hurt, 113 Mo. 90. (6) The settlement of the collector with the county court, and the return of the delinquent list, is not a judgment, and mistakes made therein may be inquired into and corrected. State ex rel. v. Ewing, 116 Mo. 129; Cole Co. v. Dallmeyer, 101 Mo. 57; Sears v. Stone Co., 105 Mo. 236. (7) In such matters its position is...