The State ex rel. Nunnelee v. Horton Land & Lumber Company

• Decision Date: 29 March 1901
• Citation: 61 S.W. 869,161 Mo. 664
• Parties: THE STATE ex rel. NUNNELEE, Collector, v. HORTON LAND & LUMBER COMPANY, Appellant
• Court: Missouri Supreme Court

61 S.W. 869

161 Mo. 664

THE STATE ex rel. NUNNELEE, Collector, v. HORTON LAND & LUMBER COMPANY, Appellant

Supreme Court of Missouri, First Division

March 29, 1901

Appeal from Ripley Circuit Court. -- Hon. Jno. G. Wear, Judge.

Affirmed.

J. C Sheppard for appellant.

(1) The court should have sustained defendant's objection to the introduction of any testimony, because the petition does not state facts sufficient to constitute any cause of action. The petition states that the defendant, Horton Land & Lumber Company, was engaged as a manufacturer during the months of March, April and May, 1896, when the bond sued on covered taxes which were to accrue, if at all, during the tax year beginning June 1, 1896. The tax year in this State begins June first of each year, and there is no exception to this rule. R. S. 1889, sec. 7569, and sec. 6821. (2) The court erred in permitting witness Bell to testify as to the value of the manufactured products, tools and machinery the previous year, as this was no evidence of the value the succeeding year. A tax based upon a valuation of a year other than the year for which it was assessed is invalid. 25 Am. & Eng. Ency. of Law (1 Ed.), p. 200; State v. Cook, 82 Mo. 185; State v. Union Trust Co., 92 Mo. 157. (3) The court should have given the second instruction asked by defendants. This is a suit for a forfeiture of the bond for failure of the Horton Land & Lumber Company to pay the tax and not for a failure to file the statement. This is determined by the prayer for relief. As no valuation was proved, no assessment whatever made, no judgment could be rendered. Rush v. Brown, 101 Mo. 586. (4) The bond sued on was given to secure the payment of the license tax and as there was no license issued to defendant, Horton Land & Lumber Company, as appears by the record, there was a failure of proof. (5) If there had been a license issued, as stated in the plaintiff's petition, on the ninth of December, 1895, then it expired by operation of law on the first day of June, 1896. R. S. 1889, sec. 6821. (6) There was a failure of proof in this respect: The Horton Land & Lumber Company was not a manufacturer on the first day of June, 1896, when the tax year began; was not the owner of any personal property whatever, and could not have been assessed. The person owning the property on the day the assessment commences is liable for the taxes for the fiscal year. McClaren v. Shelbe, 45 Mo. 130; State ex rel. v. Snyder, 139 Mo. 549.

Geo. W. Crowder for respondent.

(1) The petition states a cause of action and will bear the severest test, and the court committed no error in overruling defendant's objection to any testimony. State ex rel. v Pohlman, 60 Mo.App. 444; Wetmore v. Crouch, 55 Mo.App. 441. (2) The testimony of I. D. Bell was properly admitted. This is fundamental. (3) This is a suit for the forfeiture of a bond for the failure of the Horton Land & Lumber Company to file its statement as required by law on the first Monday in June, and the law defines the damages in such cases in positive terms. R. S. 1899, sec. 8553. (4) The introduction in evidence of the manufacturer's bond was sufficient proof of the issuance of a license thereon. The existence of a license is set out in such bonds, and the bond, being the sole record in the collector's possession, was the best evidence obtainable. (5) By the terms of its bond, given on the sixth day of December, 1895, the Horton Land & Lumber Company, and its securities, were held and firmly bound unto the State of Missouri for the payment of all taxes due for the twelve months ending November 1, 1896; and said taxes were by law to be levied upon the greatest aggregate amount of raw material, finished products, etc., which it may have had on hand on any one day between the first Monday in March, and the first Monday in June, 1896. It is not disputed that the Horton Land & Lumber Company owned and controlled about $ 49,000 worth of such property until after the first day of April, 1896. It was properly taxable for all such property owned or controlled by it during any part of the period from the first Monday in March, 1896, to the first Monday in June, 1895. R. S. 1899, sec. 9486; State ex rel. v. Tracy, 94 Mo. 217; Aurora v. McGannon, 138 Mo. 38; Judson, Taxation in Missouri, ch. 6, p. 138.

BRACE P. J. Marshall, J., absent.

OPINION

BRACE, P. J.

By statute it is provided: "All manufacturers in this State shall be licensed and taxed on all raw material and finished product, as well as all the tools, machinery and appliances used by them, in the same manner as is or may be provided by law for taxing and licensing merchants." [Revised Statutes 1889, section 6821.] And by section 6897 of that revision it is provided that "any person or co-partnership of persons applying for a license to vend merchandise shall, before he or they shall receive such license, execute a bond to the State, with two or more good and sufficient sureties, who shall be freeholders at the time, conditioned that he or they will, on or before the first day of November next following, pay to the collector of the proper county the tax due upon such license; which bond shall be approved by the collector, and his approval indorsed thereon." And by the next section the form of the bond is prescribed.

The defendants, in pursuance of these statutory provisions, and in the form prescribed, executed and delivered to the collector their bond as follows:

"Manufacturer's License Bond.

"Know all men by these presents, that we, the Horton Land & Lumber Company as principal, and L. A. Kelsey and W. H. Horton as security, freeholders of the county of Ripley, are held and firmly bound unto the State of Missouri, for the payment on the first day of November next, to the said collector of said county, of all taxes which may then be due from the principal in this bond, for the twelve months ending the above-mentioned date, upon their license as manufacturers, and in default of such payment, to pay all damages and costs which may be adjudged against them by law.

"Given under our hands this sixth day of December, 1895."

The statute further provides that, on the first Monday in June, in each year, "manufacturers shall file, separately, their sworn statement of the greatest aggregate amount of raw material and finished products which they may have on hand between the first Monday in March and the first Monday in June, of the then current year, on any one day between said times, as well as the tools, machinery and appliances used in conducting their business or owned by them on the first day of June of each year." [R. S. 1889, sec. 6821.]

It is then made the duty of the county clerk to enter an abstract of such statements in a book, the amount of each statement, and the amount of each kind of taxes levied thereon, and on or before the first day of October to make out and deliver to the collector a copy of such abstract, taking his receipt therefor, and charging the collector with the amount of such taxes. [R. S. 1889, sec. 6899.]

The law then provides that every person to whom such license shall have been granted "who has filed a correct statement as herein required, and failed to pay the amount of revenue so owing, to the collector of the proper county, shall be deemed to have forfeited the bond given by him or them in virtue hereof, and judgment shall be rendered for the plaintiff in damages, for double the amount of such revenue and costs" (R. S. 1889, sec. 6904), and that "every such person or copartnership of persons, who shall fail to file such statement and at the time and in the manner required, shall be deemed to have forfeited the bond given by him or them, in virtue of this chapter, and judgment shall be rendered for the plaintiff in damages for three times the amount of revenue which shall be found to be due for the year, and costs." (Sec. 6905.) That, "Upon forfeiture of any bond as provided, it shall be the duty of the collector of the proper county to institute suit without delay, by...