State v. Shepperd

• Decision Date: 31 March 1909
• Parties: STATE ex rel. KELLY, Revenue Collector, v. SHEPPERD.
• Court: Missouri Supreme Court

117 S.W. 1169

218 Mo. 656

STATE ex rel. KELLY, Revenue Collector, v. SHEPPERD.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

1. TAXATION (§ 260)—PLACE OF TAXATION— PERSONAL PROPERTY.

Personal property is taxable at the owner's domicile and in the school district in which he resides, and, if a person is taxed in the wrong district or county, the tax is illegal, and its collection cannot be enforced.

2. DOMICILE (§ 2) — DISTINCTION BETWEEN "RESIDENCE" AND "DOMICILE."

At common law the words "residence" and "domicile" were used interchangeably and had practically the same meaning; a domicile being a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time; and a residence being the abode of a person or incumbent or his benefice—opposed to nonresidence.

3. DOMICILE (§ 4)—CHANGE—TEMPORARY ABSENCE.

When a person has once acquired a residence or domicile, it is not lost by reason of his temporary absence therefrom on pleasure or business.

4. STATUTES (§ 179)—CONSTRUCTION—RULES FOR CONSTRUCTION.

The intent of the Legislature in enacting Rev. St. 1899, § 4160 (Ann. St. 1906, p. 2252), relating to the construction of statutes, and providing that the construction of all statutes "shall be by the following additional rules unless such construction be plainly repugnant to the intent of the Legislature or of the context of the same statute. * * * Seventeenth, * * * the place where any person having no family shall generally lodge shall be deemed the place of his residence"—was simply to furnish additional rules of construction which the court might or might not use as the case might require, and the intent was not to construe all statutes itself by defining the word "residence."

5. TAXATION (§ 253)—PLACE OF TAXATION— STATUTES.

Rev. St. 1899, § 4160 (Ann. St. 1902, p. 2252), provides that the construction of all statutes "shall be by the following additional rules unless such construction be plainly repugnant to the intention of the legislature or of the context of the same statute. * * * Seventeenth, * * * the place where the family of any person shall permanently reside * * * and the place where any person having no family shall generally lodge shall be deemed the place of residence of such person or persons respectively." The revenue statute (Rev. St. 1899, c. 149 [Ann. St. 1906, pp. 4198-4322]), provides that all personal property shall be assessed in the county and district in which the owners reside. Held that, as chapter 149 makes no distinction as to the place where property of persons who have families and those who have none shall be assessed, the rule of construction under section 4160 is not applicable, as it would be repugnant to the intention of the Legislature.

6. TAXATION (§ 254)—PLACE OF TAXATION— "PLACE OF RESIDENCE."

Where a person worked a farm, keeping a furnished room in the house thereon, which he occupied when there, and claimed his residence there, but generally and continuously lodged with his parents in another school district because they were old and helpless and he considered it his duty to stay with them at night, returning to his farm every morning, the district where his farm was situated was the district of his residence, within Rev. St. 1899, c. 149 (Ann. St. 1906, pp. 4198-4322), providing that all personal property shall be assessed in the county and district where the owners reside.

Case Certified from Kansas City Court of Appeals.

Action by the State, on the relation of L. A. Kelly, Collector of Revenue, against George Alexander Shepperd. Judgment for plaintiff, and defendant appealed to the Kansas City Court of Appeals, which certified the case to the Supreme Court. Reversed.

This suit was instituted by the collector of revenue of Clinton county, in the circuit court thereof, to recover of defendant the sum of $131.56, taxes, together with interest and costs, alleged to be due the Plattsburg school district, assessed against his personal property for the years 1901 and 1902. The answer was a general denial, and a plea that the defendant was not a resident of the Plattsburg school district during said time, but was a resident of school district No. 14, and has been for many years prior thereto. The plaintiff introduced in evidence the tax bill sued on, and rested; then the defendant introduced testimony tending to prove the allegations of the answer.

At the request of the defendant, the trial court made and filed in the cause the following special finding of facts:

"After a full hearing of the evidence in the above-entitled cause, the court finds the facts in controversy therein as follows: That Geo. A. Shepperd resided at the time of the assessment of the taxes herein sued for on a farm and farm residence lying wholly outside of the limits of the school district of the city of Plattsburg. That he kept a furnished room in said farmhouse. That his mother and father removed to the city of Plattsburg, inside the limits of the school district of the city of Plattsburg, and that at the same time of the assessment of the taxes herein sued for, and for a number of years prior thereto, the defendant had generally and continuously lodged with his parents at their home in Plattsburg. That at the time of the assessment of the taxes herein sued for, and prior to that time, defendant had never considered the home of his parents in Plattsburg as his home, but intended and considered his farmhouse as his home, where he occasionally took a meal with his tenant, who occupied a portion of said farmhouse."

While the evidence conclusively shows, yet the court omitted to find, the following facts, to wit: That defendant was single and had no family; that the sole reason why he lodged with his parents at night was because they were very old, sickly, and helpless, and needed his care and attention; and that every morning, after staying with his parents, he would return to his farm for the purpose of looking after it and caring for his stock.

The appellant duly excepted to the finding of facts because of the court's omission to find and include therein the facts above stated. Whereupon the plaintiff offered the following declaration of law: No. 1. "The court declares the law to be that if the defendant occupied a room at the residence of his father and mother in Plattsburg, Mo., and that he was a man without any family, and that he usually boarded and lodged at such residence of his father and mother, then the defendant was a resident of said Plattsburg school district, and his property is subject to taxation in said district; and if the court so find, then the judgment must be for the plaintiff for the taxes sued for." Which declaration of law the court gave; and to the giving of which declaration on the part of the plaintiff the defendant, by his counsel, then and there at the time excepted.

The defendant thereupon asked the court to instruct the jury as follows: "That the domicile of a person, when once fixed by his living at a place with the fixed intention of making it his home, is not changed by his removal to another place or location under comforts and surroundings of a home, until he has a fixed intention of abandoning his former domicile and home, and of acquiring or fixing a domicile at the place to which he has removed." Which instruction the court refused, at the refusal of which the defendant, by his counsel, then and there at the time excepted.

The court then found for the plaintiff for the amount of the taxes due, together with the interest and costs, and rendered judgment against the defendant therefor. In due time defendant filed his motion for a new trial, which was by the court overruled, to which action of the court defendant duly excepted. He then appealed the case to the Kansas City Court of Appeals, and that court certified the same to this court under the provisions of the Constitution, because the case involves the construction of the revenue laws.

Appellant's assignments of errors are as follows:

"First. The court erred in giving instruction No. 1 on the part of the plaintiff, for the reason that said instruction does not take into consideration a man's intention in as having anything to do with fixing his domicile, and is not the law.

"Second. The court erred in refusing defendant's instruction No. 2, which correctly declares the law.

"Third. The court erred in its holding that a man's residence is determined wholly by his lodging place, which may be even temporary and without any intention of making such place his home or domicile or residence.

"Fourth. The court erred in its finding of facts in not further finding that defendant's sole reason for being in and lodging in the Plattsburg school district was for the purpose of caring for his parents in their old age, that his previous residence had been outside said district, and that he had no intention of changing it up to the time of the assessment of the taxes sued for."

Frost & Frost, for appellant. F. B. Ellis, for respondent.

WOODSON, J. (after stating the facts as above).

It is conceded by counsel for both appellant and respondent that personal property is taxable at the domicile of the owner and in the school district in which he resides. Stephens v. Mayor of Boonville, 34 Mo. 323; State ex rel. v. McCausland, 154 Mo. 185, 55 S. W. 218; State ex rel. v. Brown, 172 Mo. 374, 72 S. W. 640. And it is equally well settled that if a person is taxed in the wrong district or county, then it is illegal, and its collection cannot be enforced. State ex rel. v. Brown, 172 Mo., loc. cit. 380, 72 S. W. 640; State ex rel. v. Hannibal Ry. Co., 135 Mo., loc. cit. 630, 37 S. W. 532; State ex rel. v. Hannibal Ry. Co., 110 Mo. 265, 19 S. W. 816.

2. This brings us to the consideration of the main legal proposition presented by this appeal. The uncontradicted evidence in the case shows, and the court found, that, at the...