State ex rel. Wyatt v. The Wabash Railroad Company

• Decision Date: 31 January 1893
• Citation: 21 S.W. 26,114 Mo. 1
• Parties: The State ex rel. Wyatt, Collector, v. The Wabash Railroad Company et al., Appellants
• Court: Missouri Supreme Court

21 S.W. 26

114 Mo. 1

The State ex rel. Wyatt, Collector, v. The Wabash Railroad Company et al., Appellants

Supreme Court of Missouri, Second Division

January 31, 1893

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Reversed.

F. W Lehmann and Geo. S. Grover for appellants.

(1) The descriptions of this property for the years sued for, as contained in the tax-books, and as stated in the petition were so vague and indefinite as to fail to support a judgment. It is impossible to tell from the description what part of the property was assessed by the state board of equalization, and what part, if any, was assessed, or intended to be assessed, by the local assessor, and for that reason it cannot be located. Burroughs on Taxation, p. 205 and cases cited; Blackwell on Tax Titles, sec. 227, and cases cited; Cooley on Taxation [2 Ed.] pp. 408, 409, and cases cited; City of Jefferson v. Whipple, 71 Mo. 520; Ronkendorff v. Taylor's Lessees, 4 Pet. (U.S.) 349; Lessee v. Long, 2 Ohio 293; Lafferty's Lessee v. Byers, 5 Ohio 458; Treon's Lessees v. Emerick, 6 Ohio 399; Young Men's Society v. Mayor, 3 Mich. 184; Atwell v. Zeluff, 26 Mich. 118; People v. Railroad, 96 Ill. 369; Sanford v. People, 102 Ill. 374; Commissioners v. Goddard, 22 Kan. 389; People v. Cone, 48 Cal. 427. (2) The property here sued for was subject to assessment only by the state board of equalization. State v. Severance, 55 Mo. 378; Railroad v. Watson, 61 Mo. 57; School Tax Case, 78 Mo. 596; State v. Railroad, 79 Mo. 420; State v. Railroad, 82 Mo. 683; State v. Railroad, 89 Mo. 98; State v. Railroad, 97 Mo. 348; Railroad v. Cheyenne, 113 U.S. 516; Railroad v. People, 98 Ill. 350; Railroad v. People, 99 Ill. 464; Anderson v. Railroad, 117 Ill. 26; Railroad v. Goar, 118 Ill. 134; Railroad v. Lafayette, 22 Ind. 269; Railroad v. Kilner, 69 Ind. 71; Pfaff v. Railroad, 108 Ind. 144; Dubuque v. Railroad, 47 Iowa 196; Railroad v. Davenport, 51 Iowa 451; Railroad v. Morris, 7 Kan. 210; Railroad v. Hancock, 35 N. J. Law, 537; Franklin Co. v. Railroad, 80 Tenn. 521. (3) The court erred in rendering a judgment against the lots therein named in the Gillis addition, and in block 28, without first ascertaining and deducting therefrom the portions of said tracts on which taxes had been paid or tendered upon the assessments made by the state board of equalization. Railroad v. People, 137 Ill. 181; Revised Statutes, 1889; sec. 7683, State ex rel. Rosenblatt v. Sargent, 76 Mo. 557.

Gates & Wallace, for respondent.

(1) The description in the assessment of Gillis's addition was made good by the evidence. Indeed it was good as it stood on the assessment book and only required the evidence for which it called to make it certain. The evidence showed what part of the addition was included in the exception (i. e., that part assessed by the state board) and therefore what part was included in the assessment. Upon the principle that that is certain which may be made certain, the court committed no error in rendering judgment for taxes on this land. Hall v. Cowgill, 81 Mo. 381; Brown v. Walker, 11 Mo.App. 226; Brown v. Walker, 85 Mo. 262; Adkins v. Morgan, 67 Mo. 100; Webster v. Blount, 39 Mo. 500; McPike v. Allman, 53 Mo. 551; Hammond v. Johnson, 93 Mo. 214; Wetherbee v. Dunn, 32 Cal. 106; People v. Leet, 23 Cal. 161; Hopkins v. Young, 15 R. I. 48; Drew v. Morrill, 62 N.H. 23. (2) The court committed no error in rendering judgment against lots 5, 6, 7, 8, 9 and 10, block 28, West Kansas Addition number 1, for the taxes of 1886 and 1887. All of this tract was lying outside of the right of way on the first day of June, 1885 and 1886. A part of the tract was vacant and a part occupied, either by a roundhouse or an office building. This property came clearly within the class mentioned in the statute as assessable by the local authorities. The description "All lots 5, 6, 7, 8, 9 and 10, block 28, West Kansas addition number 1, lying outside right of way," was not void, because all of the tract was, in fact, outside of the right of way. See authorities cited under point 1. (3) Heretofore we have been considering the case as though there was the same necessity for a perfect description in the assessment of railroad property as the property of individuals. But, under the article of our statutes providing for the assessment and taxation of railroad property, such does not seem to be the case. Taxes on railroad property are not made a lien against the particular pieces or tracts against which they are levied but they constitute a lien upon all the property of the company in the county. That the lands for the taxes upon which the lower court rendered judgment were subject to assessment by the local authorities, see the following cases: Railroad v. Jersey City, 53 N. J. Law, 547; Railroad v. Yeates, 17 P. 457; Railroad v. Quincy, 27 N.E. 200.

OPINION

Gantt, P. J.

This is an action to enforce the lien of the state for certain taxes alleged to be due and owing on certain real estate belonging to defendant in Jackson county. The taxes for which the action is brought are for the years 1886, 1887 and 1888.

The petition contains ten counts, but, inasmuch as the court rendered a final judgment for defendant on the sixth, seventh, eighth and ninth counts and plaintiff voluntarily dismissed as to the tenth count, the appeal involves only the rulings of the court on the first, second, third, fourth and fifth counts, on which the court gave judgment in the aggregate for $ 1,047.85.

The first, second and third counts declare for taxes of 1886, 1887 and 1888, respectively, on property described in the assessment, tax bill and petition as "the undivided half of Gilliss' addition to the City of Kansas, Jackson county, Missouri, except all that part thereof returned to and assessed by the state board of equalization." The fourth and fifth counts seek to collect taxes for the years 1886 and 1887, respectively, on property described in the assessment and tax bill, as "All lots 5, 6, 7, 8, 9 and 10, block 28, lying outside of the right of way , West Kansas addition number 1," and in the petition in the same manner, with the addition of the words, "of defendant," after "right of way."

The answer was a general denial of each and every count. A jury was waived and the cause tried to the court as a jury.

For a better understanding the discussion will apply to the taxes on each tract separately.

Considering then first, the first three counts. The action is for the taxes of 1886, '87, and '88, on "the undivided half of Gilliss' addition to the city of Kansas, in Jackson county, Missouri, except all that part thereof, returned to and assessed by the state board of equalization." At the trial the defendant objected to any evidence in support of the petition because the description in the petition was too vague and indefinite to support a tax or judgment therefor. This objection was overruled. Then plaintiff offered a tax bill certified by the collector containing the same description. Defendant renewed its objection to the evidence as too uncertain, indefinite and vague to sustain a judgment and it was overruled. Plaintiff then offered Frank Knight, an employe in the assessor's office, and, over the objection of defendant, the court permitted this witness to state verbally how many lots there were in Gilliss' addition and their numbers, being numbers 1 to 17 inclusive and 25, 26 and 27. Also what part of the addition was occupied by railroad tracks. The defendant objected to this on the ground that defendant's liability must be measured by the assessment, and that it was not competent or permissible to supply a description by parol. The defendant duly saved its exceptions to these several rulings.

The plaintiff offered in evidence the printed journals of the state board of equalization which showed that for each of the years 1886, 1887 and 1888, said board had assessed as property of defendant in Kansas township, Kansas City, three tenths of a mile of track at a valuation of $ 13,024.90 per mile and buildings at $ 4,000 for the year 1886 and the same property at substantially the same valuation in 1887 and 1888.

I. By section 7718 of the Revised Statutes of 1889, railroad companies are required to annually return to the state auditor in detail the total length of their road in this state, including branch or leased roads, the length of double and side-tracks, with depots, water-tanks and turn tables; the mileage of road and side-tracks in each county, township, city, town or village through which it is located, also all rolling stock. By section 7728 all railroad property, both real and personal, not described in section 7718 is subject to local assessment and taxation, in the several counties, cities, towns and villages, in which it is situated "under the general revenue laws of the state and the municipal laws regulating the assessments of other local property in such counties, cities, incorporated towns and villages, respectively, but the taxes on the property so assessed shall be levied and collected according to the provisions of this article." By section 7729, the president or other chief officer is required to furnish to each county clerk a statement describing all lands by section, lot or subdivisions not included in his return to the state auditor under sections 7718 and 7719, and the county courts are required to levy on this local property the same rate that is levied on other property.

By section 7733 the county clerk is required to make out a separate tax book, to be known as the railroad tax book, in which he shall place first, the total valuation of the roadbed and rolling stock of each railroad company as equalized and apportioned to said county by the state board of...