State v. Casey

• Decision Date: 18 February 1908
• Parties: STATE ex rel. MOUNT MORA CEMETERY ASS'N v. CASEY.
• Court: Missouri Supreme Court

109 S.W. 1

210 Mo. 235

STATE ex rel. MOUNT MORA CEMETERY ASS'N v. CASEY.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

Rehearing Denied March 17, 1908.

1. TAXATION—CERTIORARI—REVIEW OF ASSESSMENT.

Although certiorari only lies against judicial or quasi judicial bodies, it will lie against an assessor to review an assessment.

2. CERTIORARI—APPEAL—QUESTIONS FOR REVIEW.

On review of certiorari proceedings only the record of the inferior court or tribunal will be considered, and not the evidence taken by it, though included in the return.

3. TAXATION — LIABILITY OF PROPERTY — EXEMPTIONS—CEMETERIES—PERSONAL PROPERTY.

Const. art. 10, § 6 (Ann. St. 1906, p. 280), provides that "the property, real and personal, of the state, counties, and other municipal corporations and cemeteries, shall be exempt from taxation. Section 7 (Ann. St. 1906, p. 282) provides that all laws exempting other property shall be void. The charter of a cemetery association exempted the "cemetery" "from all taxes and assessments so long as the same shall remain dedicated to the purposes of a cemetery." and an amendment provided: "That after the payment of the present liabilities of said association, and the reimbursement to the stock-holders of the amounts of money they have advanced, or may advance, to purchase and improve said cemetery grounds now owned by said association, the residue of the income of said association * * * shall be forever held, kept and used by said board * * * for the sole and only purpose of improving, embellishing and preserving said cemetery grounds now owned and controlled by said association." Rev. St. 1899, § 9119 (Ann. St. 1906, p. 4199), enumerating property exempt from taxation not expressly exempted by the Constitution, does not include personal property belonging to cemeteries. Held, that the personal property of the cemetery association is not exempt from taxation.

4. SAME—CONSTRUCTION OF LAWS.

La ws exempting property from taxation are to be strictly construed.

5. SAME—ASSESSMENT—MODE—LIST BY TAXPAYER—NOTICE.

Rev. St. 1899, § 5575 (Ann. St. 1906, p. 2851), makes it the duty of the assessor in a city of the second class to give public notice by advertisements in a daily paper and by handbills posted and circulated throughout the city that lists of personal property must be delivered to him on or before a given date. Held that, as such lists are solely for the convenience of the assessor, his failure to comply with the statute will not invalidate an assessment.

6. SAME—PREPARATION OF LIST BY ASSESSOR.

Rev. St. 1899, § 5579 (Ann. St. 1906, p. 2852), authorizes the assessor to require any person to deliver any list necessary for the purpose of making an assessment, and in the event of his failure or refusal to do so the assessor shall assess such person according to the best information he can get. An assessor called at the office of a corporation, where he found the secretary, and then called at the president's place of business, and requested both the president and secretary to prepare a list of the corporation's property, but each refused. Held, that the assessor was authorized to make out a list of its property according to the best of his information.

Appeal from Circuit Court, Buchanan County; Henry M. Ramey, Judge.

Certiorari by the state, on the relation of the Mount Mora Cemetery Association, against George F. Casey. Judgment for defendant, and relator appeals from an order refusing to grant a new trial. Affirmed.

H. K. White and V. Pike, for appellant. W. B. Norris and O. E. Shultz, for respondent.

BURGESS, J.

The relator applied to the circuit court of Buchanan county for a writ of certiorari to bring before that court the record of an assessment of personal property against the relator for the year 1904, made by defendant, George F. Casey, assessor of the city of St. Joseph. In its application relator set forth its incorporation under an act of the Legislature, passed in 1851 (Laws 1851, p. 94), and an act amendatory thereof, passed in 1871 (Laws 1871, p. 366). It alleged that under the act of incorporation and the Constitution of this state its property was exempt from taxation, that the assessment complained of had been made without notice to it, and that the assessment was irregular and void. The writ was awarded, and the defendant filed his return in which he admitted the corporate capacity of relator, and set forth the clause in its charter by virtue of which relator claimed exemption from taxation. He also averred that he had called at the office of relator and found J. C. Hedenberg, secretary of the corporation, in charge thereof, to whom he tendered a list to be filled out and sworn to as the list of personal property owned by relator, as required by sections 5579 and 5580, Rev. St. 1899 (Ann. St. 1906, pp. 2852, 2853), but that said Hedenberg refused to make out a list, and told defendant that J. C. Wyatt was president of the corporation and the proper person to make out said list; that thereupon he called upon said Wyatt and presented to him said list to be filled out, but that said Wyatt refused to fill out said list and to return the same. Attached to the return was a notice and blank assessment list, which notice required the relator to make out and return to defendant, as assessor, a list of its personal property, the name of the defendant being appended to the notice in print. Said blank assessment list sets forth various classes of personal property, and at the head is a blank return of service by the assessor or his deputy, which was unsigned. Defendant also attached to his return to said writ a copy of his assessment of relator's personal property, the same being set out at the foot of a blank assessment list as follows: "In the absence of sworn statement, the assessor's estimate $120,000." Subsequently the defendant filed an amended return, wherein in addition to the averments made in the original return, he sets forth that on February 17, 1904, availing himself of the best information he could get, he assessed the relator in the sum of $120,000, and made out a tax list accordingly. To the amended return were also attached a notice and blank assessment list and copy of defendant's assessment of relator's property, the same being identical with those attached to the original return. Neither in the original nor the amended return is it shown that the assessor's name was signed to said assessment, the only signature being his printed name appended to the notice accompanying the blank list tendered, as alleged, to relator. Attached to said assessment list, as set forth in the amended return, is the following: "I hereby certify that I served this list on the 3d day of February, 1904, by calling at the office of the Mount Mora Cemetery Association, 413 Francis Street, St. Joseph, Mo., and offering a true copy hereof to J. C. Hedenberg as the secretary of said association, but he refused to receive the same, and referred me to J. C. Wyatt, the president of said association, as the proper person to be served with this list; and I thereupon and upon said date called upon J. C. Wyatt, the president of said Mount Mora Cemetery Association, at his office, Fifth and Felix streets, in St. Joseph, Mo., and served upon him this list by delivering to and leaving with him a true copy thereof. Geo. F. Casey, City Assessor." Defendant further averred that he had placed his assessment on the assessment book, and affixed thereto his affidavit as city assessor, and delivered said book to the city council by delivering the same to the city clerk. Neither the original nor the amended return averred that any general notice had been given in the newspapers of the assessment. The relator filed its traverse to the defendant's return, which denied all the allegations of the return which were not admissions of the allegations contained in the application for the writ of certiorari, except that it admitted that defendant had placed the assessment on the tax book and affixed his affidavit as city assessor thereto.

Upon the trial of the case relator introduced in evidence its charter and the amendments thereto, section 9 of said charter being as follows: "Said cemetery is hereby declared exempt from all taxes and assessments so long as the same shall remain dedicated to the purposes of a cemetery, except such sums as may be imposed by the board of trustees upon each lot sold for the improvement, advancement and uses of said lots, and to repair the inclosure, gateways, etc., of said cemetery." Section 2 of the act amending said charter was as follows: "That after the payment of the present liabilities of said association, and the reimbursement to the stock-holders of the amounts of money they have advanced, or may advance, to purchase and improve said cemetery grounds now owned by said association, the residue of the income of said association, either from sale of lots or from any other source, shall be forever held, kept and used by said board of trustees and their successors, for the sole and only purpose of improving, embellishing and preserving said cemetery grounds now owned and controlled by said association." J. C. Hedenberg testified that he was, and had been for many years, secretary of the cemetery association, that defendant had never served upon him or offered him an assessment list, and that he told defendant when he called on him that J. M. Wilson was treasurer of the association and that Mr. Wyatt was president. On cross-examination he said that he told defendant that the company was not subject to taxation, but that nothing was said about a list. J. C. Wyatt testified that he was president of the company in 1904; that he never had a word with defendant about taxation of the company, and that no demand was made upon him to make out a list in 1904; that the association owned less than 50 acres of land, and that several thousand bodies were interred in this...