State v. Gomer

• Decision Date: 14 December 1936
• Docket Number: 34838
• Citation: 101 S.W.2d 57,340 Mo. 107
• Parties: The State, Appellant, v. Ollie B. Gomer and the Fidelity & Casualty Company of New York, a Corporation
• Court: Missouri Supreme Court

101 S.W.2d 57

340 Mo. 107

The State, Appellant, v. Ollie B. Gomer and the Fidelity & Casualty Company of New York, a Corporation

No. 34838

Supreme Court of Missouri

December 14, 1936

Appeal from Butler Circuit Court; Hon. Robert I. Cope Judge.

Affirmed.

Roy McKittrick, Attorney General, and Drake Watson Assistant Attorney General, for appellant.

(1) The defendant's compensation is fixed by statute and is limited to such assessment lists as he actually made either (1) from his own view or (2) the sworn lists that he took from the taxpayers. Sec. 9806, R. S. 1929; State ex rel Troll v. Brown, 146 Mo. 406; State ex rel. v. Gordon, 245 Mo. 27; King v. Riverland Levee Dist., 279 S.W. 196; Williams v. Chariton County, 85 Mo. 645. (2) Statutes defining fees or official compensation are strictly construed. State ex rel. Stewart v. Wofford, 116 Mo. 223.

W. H. Meredith and David W. Hill for respondents.

The assessor's tax book contained all the lists of property 10,388 including the 3455 involved in this suit -- this number 3455 was made up of nonresidents and other persons whose whereabouts were unknown to the assessor, as shown by the signed stipulation, and the law did not mandatorily require the assessor to make out a useless lot of lists for those on separate papers, when there was no owner around to attach his oath to the list. The assessor made all the lists in his tax books as admitted in the stipulation, and this was all that was required, and the assessor was appropriately paid by the State seventeen and one-half cents for the 10,388 lists. Secs. 9780, 9791, 9792, R. S. 1929; State ex rel. v. Carr, 178 Mo. 234; State ex rel. v. Dugan, 265 Mo. 365; St. Francis v. Dorroh, 316 Mo. 406; State ex rel. v. Cantley, 325 Mo. 67; State ex rel. v. Reed, 159 Mo. 77; State ex rel. v. Stemm, 165 Mo. 73; State ex rel. v. Bank, 120 Mo. 161.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action, brought by the Attorney General in the name of the State, upon bond of the assessor of Butler County, in the penal sum of $ 1000, conditioned upon the faithful performance of "the duties of his said office according to law, during the legal term of said office." The purpose of the suit was to recover for the State treasury $ 633.85, alleged to have been paid to him therefrom and received by him for assessment lists in 1932, which were not actually made. The trial court found for defendants and this appeal is from the judgment entered in defendants' favor.

The bond was put in evidence, and the case was submitted below upon an agreed statement of facts, which were in substance the facts stated in the petition. The admitted facts were, as follows:

"That the defendant, Ollie B. Gomer, charged for 10,388 assessment lists for the year 1932, and was paid by the State of Missouri, 17 1/2 cents for each of said lists; that each and every one of said real estate and personal lists were entered in the Permanent Assessor's Tax Books for that year, but that of said lists for 3,455 the defendant Gomer did not take sworn statements from the property owners under Section 9759, R. S. 1929, and made no statements himself under Section 9760, R. S. 1929, and made no list thereof similar to the assessor's list called for by said Section 9760, a copy of said list in blank being hereto attached and marked exhibit 'A-2,' except on the assessment books for the reason that the said number 3,455 was made up of nonresident property owners, whose whereabouts were unknown to Gomer, and other such persons who could not be located by the said Gomer, some of them being minors and insane persons and property lists furnished by the Probate Court, the Recorder of Deeds and the Secretary of State, and the County Court, and that the said Gomer made no statement of said 3,455 lists except those stated in the Tax Books, which contained the full number 10,388." (Our italics.)

We take it from the briefs that most of the nonresident property owners referred to owned only real estate in Butler County. Since this suit is founded upon breach of the condition of his statutory bond (Sec. 9754, R. S. 1929) to "faithfully perform the duties of his said office according to law," this controversy necessarily involves a construction of the revenue laws, because we must determine the duties of the assessor, and decide whether the facts show a failure to faithfully perform them. The alleged breach of the bond can only be on the theory of a failure to properly make assessments of nonresident owners of real estate, and of personal property owned by persons who could not be located, including minors, insane persons and estates of decedents, and, for that reason, recovery of the compensation received therefor by the assessor, was sought. Respondents' position is that although no lists were "made up of nonresidents and other persons whose whereabouts were unknown," nevertheless the property owned by such persons was "entered in the assessor's books and the property duly assessed;" and that "the law does not require a foolish thing to be done, that is, to make out a list on a piece of paper when there is no owner to verify it by his oath." Respondents further point out that the word list is used in the assessment statutes to designate other lists or documents than the one which taxpayers are required to deliver to the assessor, and say that the assessor's compensation is to be computed on the basis of a list made opposite the name of each owner on the tax book rather than the list taken from each owner on the form described in Section 9756. From 1845 to 1909, the entry in the assessment book, of the taxpayer's name and property owned by him, was the basis of county assessor's compensation, but a review of our assessment statutes and amendments thereto show that a different system is now in effect. [Sec. 45, Art. II, Chap. 147, R. S. 1845; Sec. 9196, R. S. 1899; Laws 1909, p. 717.] It is very difficult, if not impossible, to determine either the exact duties or the true basis of compensation of assessors from present statutes without studying the history of their origin and amendment.

Our present Constitution, as did our original Constitution, provides that "all property subject to taxation shall be taxed in proportion to its value." [Art. X, Sec. 4, Const. of 1875; Art. 13, Sec. 19, Const. of 1820.] This provision does not provide a method of assessment and makes no distinction between real and personal property. Assessment of property is the method, provided by the Legislature to carry out this constitutional provision and our present assessment statutes clearly prescribe different methods for the assessor to use in locating taxable land from that provided for finding taxable personal property, and each is required to be listed in a separate part of his book for assessment. Our present system of assessment is substantially the one adopted in 1872. [Laws 1872, pp. 88-97.] Prior to that time, a system of requiring all property owners to deliver lists, at designated and advertised times and places, had been tried. [G. S. 1865, Title V, Chap. 12.] The system of the assessor taking lists by calling upon property owners, adopted in 1872, was substantially the same as the earlier method used, except as to real estate. [R. S. 1855, Art. II, Chap. 135.]

Under every system used, we find the same provision in the same language as present Section 9760, Revised Statutes 1929, which is here cited as requiring assessors to make a list of real estate owned by nonresidents who have no personal property in the county. It is, as follows:

"Whenever there shall be any taxable property in any county, and from any cause no list thereof shall be given to the assessor in proper time and manner, the assessor shall himself make out the list, on his own view, or on the best information he can obtain; and for that purpose he shall have lawful right to enter into any lands and make any examination and search which may be necessary, and may examine any person upon oath touching the same." [Sec. 32, Revenue Act of 1872, p. 90, Laws 1872; Sec. 26, Chap. 12, Title V, G. S. 1865; Sec. 29, Art. II, Chap. 135, R. S. 1855.]

However prior to the Revenue Act of 1872, the list which property owners were directed to deliver to the assessor was required to be "a just and true list of all property taxable by law, except merchandise;" and the oath of the taxpayer was that he had given "a true and correct list of all taxable property . . . owned." [Secs. 11, 12 and 13, Chap. 12, Title V, G. S. 1865; Secs. 18, 19, 20 and 26, Chap. 135, R. S. 1855.] It was then specifically provided that the list, which the owner of property was required to deliver to the assessor, should "particularly describe each tract of land contained therein;" and also "each town lot." [Secs. 13, 14, Chap. 12, Title V, G. S. 1865; Secs. 21, 22, Chap. 135, R. S. 1855.] It was also then provided that every assessor should "make out, from the lists delivered to him . . . distinct lists for each county in which any such taxable property may be, and transmit the same, by mail or otherwise, to the assessor of the proper county." [Sec. 20, Chap. 12, Title V, G. S. 1865; Sec. 23, Chap. 135, R. S. 1855; see, also, Sec. 15, Art. II, Chap. 147, R. S. 1845.] This list, undoubtedly, was mainly for the purpose of putting taxable real estate on the books because personal property was then as now taxable in the county of the owner's residence. [Sec. 6, Chap. 11, Title V, G. S. 1865; Stephens v. Boonville, 34 Mo. 323.] It was further provided, prior to 1872, that the assessor should make "a complete list of all the taxable property in his county," in a book which should "contain the names, in alphabetical order, of all persons to whom property has...