The State ex rel. Hamilton v. Brown

• Decision Date: 24 February 1903
• Parties: THE STATE ex rel. HAMILTON, Appellant, v. BROWN, Collector, etc
• Court: Missouri Supreme Court

72 S.W. 640

172 Mo. 374

THE STATE ex rel. HAMILTON, Appellant, v. BROWN, Collector, etc

Supreme Court of Missouri, Second Division

February 24, 1903

Appeal from Lincoln Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

Martin & Woolfolk for appellant.

(1) The property of the minor was under the control and dominion of his guardian and curator. No one else was under obligation for the preservation and care, or responsible for its waste or destruction, and no other person had authority to collect loan or change the character of the personal estate without an order of court, and no one but the guardian and curator could be assessed with the property or become liable for the taxes thereon. Tousey v. Bell, 23 Ind. 423; Smith v. Macon, 20 Ark. 17; Payson v Tufts, 13 Mass. 493; Baldwin v. Fitchburg, 8 Peck 494; State v. Carson, 13 A. 265. Personal property is presumed to be at the domicile of the owner, but this presumption is dispelled whenever the facts show its location elsewhere. Railroad v. Cass Co., 53 Mo. 17; Taylor v. St. Louis, 47 Mo. 594; State ex rel v. County Court, 69 Mo. 454; Corn v. City of Cameron, 19 Mo.App. 573; McDaniel v. Bard, 17 Mo.App. 545. (2) The guardian and curator is the legal owner of the estate for the purposes of taxation. State ex rel. v. Burr, 143 Mo. 209. (3) Mandamus is the only adequate and complete remedy. Mandamus in proceedings analogous to this have often been sustained by the appellate courts. State ex rel. v. Schnecko, 11 Mo.App. 165; State ex rel. v. Burkhardt, 59 Mo. 75; State ex rel. v. Dougherty, 45 Mo. 294; State ex rel. v. Secretary of State, 33 Mo. 293; School Dist. v. Gooding, 120 Mo. 67; State ex rel. v. Riley, 85 Mo. 156. The order which the county court made can not affect the right of the petitioner. It was made without notice to him, and upon every principle of law is void for that reason. State v. Byers, 67 Mo. 706; Petition of Powers et al., 52 Mo. 218.

Geo. T. Dunn and Norton, Avery & Young for respondent.

OPINION

FOX, J.

On December 9, 1898, the appellant presented his petition to the judge in chambers and an alternative writ of mandamus was issued. The petition was in substance as follows:

George A. Hamilton alleges that he was the curator of Charles M. Hamilton, and that he, the curator, was a resident of school district No. 2, township 49, range 1 east. That he was appointed curator in 1888 and had charge of all the minor's personal property, that the same was in notes, moneys, bonds, and he, the curator, at all times kept these securities at his residence in said district No. 2, and before the year 1897 the property had always been assessed and taxes paid in school district No. 2. That in 1897 the assessor assessed the same and located it in said district No. 2, but that the county clerk in making up the school tax book extended it in school district No. 4, township 49, range 1 west, and delivered the same to the collector, and that the collector was then threatening to collect the taxes as shown by said school tax book as per estimate of said school district No. 4. That the rate of taxes in said district No. 2 is 40 cents and in said district No. 4 is 100 cents on the $ 100. That the collector is in legal possession of said school tax book so erroneously made by the said county clerk, and is attempting to collect the taxes as extended by the clerk and if he is not prevented he will collect the same and pay it into the county treasury to the credit of said district No. 4. A tender is then pleaded of all the taxes shown by said taxbill except the school tax, and a tender of 40 cents on the $ 100 as school tax. The prayer of the petition is for a writ of mandamus against said collector commanding him to accept and receive the amount so tendered according to the estimate furnished by district No. 2, and that when so paid the respondent be required to pay the school tax so collected into the treasury to the credit of school district No. 2.

The alternative writ was issued and the respondent first filed a demurrer on the grounds that the statement in the petition did not warrant the relief prayed for. This was overruled and the respondent at the time excepted. Respondent then filed his answer, which was as follows, in substance:

Your respondent for reason why he should not obey the commands of the said alternative writ states, that he is collector of Lincoln county, and that George A. Hamilton is curator of the estate of Charles M. Hamilton, a minor; that the school tax book under authority of which he is demanding and collecting these taxes was duly certified to him by the clerk of the county court of Lincoln county, and received by him. That the same charges the said Charles M. Hamilton with the school tax as assessed in school district No. 4, township 49, range 1 west, at the rate of 100 cents on the $ 100, and that this respondent had no authority to alter or in any way change the said school tax book and it is his duty as collector to collect the taxes as assessed therein.

The respondent further says that this court has no jurisdiction by writ of mandamus to compel him to change or in anywise alter the assessment as certified to by the said county clerk, and if there is any error in the assessment that the county clerk alone, under the authority of the county court or by proceedings brought against him, has authority to hear and alter such erroneous assessment and that this court has no jurisdiction in this action. It is further alleged that the petition or alternative writ does not show that the minor, Charles M. Hamilton, at the time the writ was sued out or at any time theretofore was a resident of school district No. 2. He alleges that at the time the assessment was made he was a resident of district No. 4. Denies that the money should be paid to district No. 2 and denies all and every other allegation in the petition or alternative writ not specially admitted.

Upon an examination of the record, we find the facts as stated by the trial judge in his written opinion substantially correct. At least, the difference as to the facts as stated by relator and the trial judge have no material bearing upon the legal questions involved in this controversy. Hence we adopt the statement of the trial judge as to the facts.

"In the year 1883 one Charles Hamilton, with his wife and minor child, Charles M. Hamilton, resided in the town of Troy, Lincoln county. The town of Troy was then and is now in school district No. 4, township 49, range 1 west. During that year Charles Hamilton died, and his widow and minor son continued to reside in Troy till her death in 1888, when she too died. The minor at that time was about nine year old, and his uncle, the plaintiff herein, was appointed by the probate court guardian and curator of said minor in 1888 and continues to hold such position. The guardian and curator resides and had for at least twenty years, in school district No. 2, township 49, range 1 east, in Lincoln county. Immediately after the death of his mother the minor was taken by his aunt to another portion of Lincoln county and continued to reside with her till the year 1897, attending school in the meantime at various places. The property of the minor, consisting of notes and other securities in the hands of the curator, was assessed by the assessor of Lincoln county, who indorsed on the list the location of said property as in district No. 2, township 49, range 1 east. The clerks of the respective school districts made their estimates of school expenses and names of resident taxpayers in their districts as required by law. The clerk of district No. 2, township 49, range 1 east, made no return of plaintiff guardian and curator in his said district. The clerk of district No. 4, township 49, range 1 west, listed plaintiff as such curator and guardian in his district. The county clerk in making up the school tax book, proceeded to assess the amount of the estimates of the various districts, and among them the above-named district, and in so doing returned plaintiff guardian and curator in district No. 4, township 49, range 1 west, in accordance with the enumeration list, and extended the tax on the personal property under the rate of such district. The school tax book in this shape went to the collector, who now holds it in the same condition, and the effort is now made by plaintiff to compel the collector by writ of mandamus to receive the school tax according to the estimate of district No. 2, and at the rate fixed by such district, and when so paid to turn the same over to the treasurer to the credit of district No. 2."

Upon a full hearing of the application for "writ of mandamus" in this cause, to compel the collector to receive the taxes according to the rate of taxation in school district No. 2, and pay the amount so collected from relator into the treasury to the credit of school district No. 2, the writ was denied and judgment for costs in favor of defendant and against the plaintiff. From this judgment, plaintiff appeals to this court, to the end that this court may review the action of the trial court. The trial court in a written opinion filed in this cause, said, upon the subject as to the remedy sought:

"The duty of making the 'school tax book' devolves upon the county clerk, which book shall be subdivided, corresponding to the districts in the county and numbered accordingly, and he shall place in the proper subdivisions: first, a list of the names, alphabetically arranged, of all persons owning any personal property in the districts, total value thereof and the amount of school tax assessed thereon; second, a list of all the lands and town lots, etc. [Sec. 8067, R. S. 1889.] The enumeration lists inform the county clerk of the amount...