The State ex rel. Hudson v. Carr

• Decision Date: 09 December 1903
• Citation: The State ex rel. Hudson v. Carr, 77 S.W. 543, 178 Mo. 229 (Mo. 1903)
• Parties: THE STATE ex rel. V. HUDSON, Collector, Appellant, v. CARR
• Court: Missouri Supreme Court

77 S.W. 543

178 Mo. 229

THE STATE ex rel. V. HUDSON, Collector, Appellant, v. CARR

Supreme Court of Missouri

December 9, 1903

Appeal from Barry Circuit Court.-- Hon. H. C. Pepper, Judge.

Reversed and remanded (with directions).

E. C Frost for appellant.

(1) The evidence shows that the assessor entered the lot on his book and fixed the valuation thereon, that the county clerk entered the lot on the collector's tax books and extended the taxes thereon.These books were in evidence.This established a valid assessment.State ex rel. v Reed,159 Mo. 77;State ex rel. v. Hutchinson,116 Mo. 339;State ex rel. v. Bank,144 Mo. 381.(2) The introduction of the taxbill made a prima facie case.Was this prima facie case overcome by the testimony of the assessors tending to show that they had made no entry of this land on assessment lists and filed them with the county clerk before entering the lot on their books?Defendant was a non-resident of Barry county and had no office, usual place of residence or business in the county, hence section 9145,Revised Statutes 1899, can not apply.But section 9166 is the law applicable to a case like this.(3)The court erred in refusing the declaration of law asked by plaintiff.These books are the primary and best evidence.State ex rel. v Hutchinson,116 Mo. 402;State ex rel. v. Bank, supra.

OPINION

In Banc

MARSHALL J.

This is an action by the collector of Barry county to collect back taxes for the years 1893, '94, '95, '96 and '97, aggregating $ 34.36, on lot 3 of block 12, in the city of Monett.The petition is in the usual form.The answer is a general denial, with a special plea that the assessor did not "proceed to list said lot," nor "assess the value for taxation of said land," as the law directs, and "did not assess said property in any manner," and that "the extension of said pretended taxes on the collector's books were illegal and void;" and a further special plea that the taxes for the years 1893 and 1894 are barred by limitations.

Upon the trial the plaintiff introduced the certified taxbill and rested.

"The defendant to sustain the issues on his part, proved that the defendant did not furnish the assessor a list of his property, nor did the assessor of said county make out any such assessment lists of the said lot and file same with the county clerk for any of the years for which the taxes are claimed to be delinquent.Nor did the said assessor go upon the premises to ascertain its value, nor did they give the defendant any notice requiring him to make out his assessment lists for any of the years aforesaid; that the defendant was a non-resident of Barry county, Missouri, during the years for which the taxes sued for was levied; that the assessor only copied the lot from the assessor's book for the previous years without doing anything further whatever toward making an assessment of the lot in question.

"The plaintiff then, in rebuttal, introduced the assessor's books for the several years, showing said lot entered thereon, also the collector's books for the several years, showing the lot to have been entered therein and the taxes duly extended therein by the clerk of the county court.To the introduction of which said books the defendant objected at the time, for the reason that the assessors never made out or filed any assessment lists with the county clerk for any of said years.

"By the Court: Objections overruled.

"To which ruling of the court, the defendant excepted at the time.

"This was all the evidence.

"Plaintiff then prayed the court to declare the law as follows: 'The court declares the law to be that the introduction of the assessor's book and collector's book shows a valid assessment of the lot in question for the years mentioned, and the judgment should be for the plaintiff.'

"Which declaration of law the court refused.

"To the action of the court in refusing said declaration the plaintiff duly excepted at the time.

"The court of its own motion declared the law as follows: 'The court finds that the defendant was a nonresident of Barry county at all the times when the assessments of his property were made, and that the assessor did not make an assessment of the property herein on the assessment lists as prescribed by law, and that the only attempted assessment made of such lot was made by the assessor by copying from the old assessor's books on his book, and for that reason the court declares the law to be that there was no legal assessment of said lot, and the plaintiff can not recover.'

"To the giving of said instruction plaintiff duly excepted at the time.

"The court then rendered judgment dismissing said cause."

From this judgment the plaintiff duly prosecuted this appeal.

I.

The first question in this case is whether the assessment is void because the assessor failed to make out a list of the property to be assessed, as required by section 9148,Revised Statutes 1899.

The precise point here involved does not appear to have heretofore arisen.

Section 9144,Revised Statutes 1899, requires the assessor, between June and January, to call at the office, place of business or residence of each person, and require of such person to make a correct list of all property owned by him or under his control.The form of such list is minutely prescribed.Section 9145,Revised Statutes 1899, provides that if such person be sick or absent when the assessor so calls, the assessor shall leave at the office, place of business or residence of such person, a written or printed notice requiring such person to make out a list of his property and return it to the assessor.Section 9148,Revised Statutes 1899, provides that "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," etc.There is no special provision as to what shall be done in case the property is owned by a non-resident.

Now the point here involved is, that the defendant was a non-resident of Barry county, and had no office, place of business or residence in said county; that the assessor, therefore, could not call on the defendant and require him to make out a list of his property as required by section 9145, and that the assessor did not the defendant to make out a list of his property as required by section 9145, and that the assessor did not make out a list of the defendant's property, as required by section 9148, and that the assessor did not go upon the premises and ascertain its value, but that in making out his assessment books he took the assessment of the land as it appeared on the assessment books of the previous years.And for these reasons the trial court declared the assessments void.

It thus appears that the crucial question here is, whether a failure of an assessor to make out a list of the property to assess, in case the taxpayer fails to return such list when required, makes the whole assessment void.

It is one of the cardinal rules for the construction of statutes, that the spirit and purpose of the enactment is an invaluable guide to the meaning thereof, for the letter of the law often killeth, while its spirit maketh alive.

The sole purpose of the law in requiring the taxpayer to make out and return to the assessor a list of his property, is to aid the assessor in discovering all of the taxable property, to the end that it may be assessed and made to bear its proper proportion of the expenses of government.Such list made by the taxpayer and the valuation placed by the taxpayer on his property is not conclusive on the assessor.[State ex rel. v. Reed, 159 Mo. 77, 60 S.W. 70.]If the assessor discovers other property of the taxpayer which he failed to list, or which was omitted from taxation, it is his duty to assess it, even if it is discovered years afterwards.[Secs. 9176 and 9177, R. S. 1899.]

The list made out by the taxpayer is not required to be returned by the assessor to the county court, but only a fair copy of the assessor's books is required to be so returned.[Sec. 9188, R. S. 1899.]

It follows that if the list to be made by the taxpayer is solely for the use of the assessor and not for the benefit of the taxpayer, and if the assessor has power to assess other property omitted from the list by the taxpayer, then the failure of the assessor to make out a list in the event the taxpayer fails to do so, in nowise prejudices the rights of the taxpayer, and therefore section 9148 must be deemed merely directory and not mandatory, and the failure of the assessor to make out such list does not affect the validity of the assessment.

In State ex rel. v. Bank of Neosho, 120 Mo. l. c. 161, 25 S.W. 372, this court held that the law respecting the sale of property for taxes is mandatory, but that the law respecting assessments is, in a large sense, directory, and if an omission of the duty devolved by the statute upon the assessor did not injuriously affect the rights of the taxpayer and was not an essential to the making of an assessment, it would not vitiate the tax.And the following rules laid down by Cooley on Taxation were cited and adopted:

"No one should be at liberty to plant himself upon the nonfeasances or misfeasances of officers, under the revenue laws, which in no way concern himself, and make them the excuse for a failure on his part to perform his own duty.On the other hand, he ought always to be at liberty to insist that directions which the law has given to its officers for his benefit shall be observed.Many eminent judges have endeavored to lay down a general rule on this subject, by which the difficulties in tax...