The State ex rel. Morris v. Cunningham
| Decision Date | 05 February 1900 |
| Citation | 55 S.W. 249,153 Mo. 642 |
| Parties | THE STATE ex rel. MORRIS, Collector, v. CUNNINGHAM, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.
Reversed.
W. B McAntire for appellant.
(1) The power to assess property for state and county taxes is vested solely in the county assessor. Acts 1893, p. 216; R. S. 1889 secs. 7532, 7533, 7534, 7535, 7536, 7537. And his mode of so doing is restricted. R. S. 1889, secs. 7534, 7553, 7564. The board of equalization was powerless to make an assessment and was restricted to "equalizing" the values only of the property already assessed by the assessor. R. S. 1889, secs. 7517, 7518, 7519, 7520; Cooley on Taxation (2 Ed.), pp. 324, 748, 749, 751, 752, 759; Railroad v. Cass Co., 53 Mo. 17; State ex rel. v. Shortridge, 56 Mo. 126; Saline Co. v. Wilson, 61 Mo. 237; Warrensburg ex rel. v. Miller, 77 Mo. 56; City of Kansas v. Railroad, 81 Mo. 285; Valle v. Ziegler, 84 Mo. 214; State ex rel. v. Railroad, 87 Mo. 236; Railroad v. Apperson, 97 Mo. 300; State ex rel. v. Railroad, 114 Mo. 1; State ex rel. v. Spencer, 114 Mo. 574; Blackwell on Tax Titles (2 Ed.), p. 255; Dillon on Mun. Corp. (2 Ed.), p. 610; Cooley on Taxation (2 Ed.), p. 285. (2) The assessor and board of equalization are each prohibited from making any change in the assessment list. R. S. 1889, sec. 7534. (3) The board of equalization is not the county court. State ex rel. v. Vaile, 122 Mo. 42, Neither is it a court of record. R. S. 1889, sec. 3225. (4) Whilst it has been held that acts of boards of equalization were judicial in their nature, yet the same cases never failed to also hold that such boards were inferior tribunals and that acts outside their prescribed duties were void, and subject to collateral attack for fraud or want of jursidiction. State ex rel. v. Vaile, 122 Mo. 34. But the better view is, and the more recent decisions are to the effect, that in regard to the high power of taxation they act not as judicial tribunals but in invitum, and any defense thereto may be entered in the suit for taxes in the circuit court. State ex rel. v. Railroad, 135 Mo. 618, in accord with the doctrine enunciated in Howard v. Heck, 88 Mo. 456; Jones v. Driskill, 94 Mo. 190; Boyd v. Ellis, 107 Mo. 394; Smith v. Nelson, 110 Mo. 552; R. S. 1889, secs. 7682, 2050; State ex rel. v. Baker, 129 Mo. 482. (5) Defendant's remedies are cumulative, and not restricted to any particular one. R. S. 1889, sec. 2050; State ex rel. v. Saline Co. Court, 51 Mo. 378; Warrensburg ex rel. v. Miller, 77 Mo. 56. (6) In suits for taxes, all books, papers, records, etc., appertaining to the subject of taxation are admissible in evidence. Ewart v. Davis, 76 Mo. 129; Howard v. Heck, 88 Mo. 456. (7) Statutes for the collection of revenue must be strictly construed. State ex rel. v. St. Louis Co. Court, 13 Mo.App. 53; Saline Co. v. Wilson, 61 Mo. 237; State ex rel. v. Railroad, 87 Mo. 236. (8) Under the evidence in this case the change in defendant's assessment from $ 955 to $ 20,000 was an "invidious" assessment if entitled to the dignity of an assessment at all, and constituted a fraud on defendant. Cooley on Taxation (2 Ed.), p. 218. (9) Where plaintiff stands on his tax bill, and the prima facie case made by it is overcome, as in this case, he is bound to produce other evidence or fail. State ex rel. v. Hutchinson, 116 Mo. 399.
Royse & Walden for respondent.
(1) Under the provisions of section 7517 et seq. R. S. 1889, the board of equalization has the power to adjust and equalize the list and valuation of all personal and real property assessed in the county and made taxable by the law of the State. (2) And the courts has held their acts in so doing are judicial. Ins. Co. v. Charles, 47 Mo. 465; Railroad v. Maguire, 49 Mo. 483; Black v. McGonigle, 103 Mo. 193; St. Joe Lead Co. v. Simmons, 108 Mo. 226. (3) It is a well recognized rule of evidence that under a plea of res adjudicata, parol evidence is not admissible to contradict a judicial record, only in case the record does not show what was adjudicated in the prior action. West v. Moser, 49 Mo.App. 201; Armstrong v. St. Louis, 69 Mo. 310. (4) Certiorari is the proper method of correcting an erroneous assessment, as no appeal lies from the action of the board of equalization. State v. Downling, 50 Mo. 134; State ex rel. v. St. Louis Co. Court, 47 Mo. 594; Railroad v. Board of Equalization, 64 Mo. 294. (5) Certiorari is the proper method to annul an increased tax assessment, if made without jurisdiction. State ex rel. v. Springer, 134 Mo. 212; Ward v. Board of Equalization, 135 Mo. 309. (6) The courts, either of common law or equity, are powerless to give relief against the judgments of assessing bodies except as they may be specially empowered by law to do so, and this principle is applicable to statutory boards of equalization, which are only assessing boards with certain appellate powers, but whose actions, if they keep within their jurisdiction, is conclusive except as otherwise provided by law. Cooley on Taxation (Jud. Ed.), 748, 749, 760. (7) No one should be at liberty to plant himself on the misfeasance or nonfeasances of officers under the revenue law, which in no way concerns himself, and make them an excuse for a failure on his own part to perform his own duty, and the rule seems to be well established by late cases, that provisions of the revenue law intended to secure order, system and dispatch, and by a disregard of which the parties can not be injuriously affected are not regarded as mandatory unless accompanied by negative words, importing that the act required shall not be done in any other manner or time than as designated. State ex rel. v. Bank of Neosho, 120 Mo. 161; Sec. 7708, R. S. 1889.
This is a suit on a personal tax bill against the defendant. The petition is in the usual form.
The answer, among other defenses, pleads that the defendant's personal property was regularly assessed at $ 955 and the assessment duly returned by the county assessor, but that the board of equalization of Jasper county with intent to perpetrate a fraud on defendant added to the list of property given in by him and returned by the assessor certain other property, to wit, notes held by defendant's bank, and thereby swelled the assessment from $ 955 to $ 20,000, and in order to conceal their real act falsified their record so as not to show their addition of other property, but to make it appear as an increase in the valuation of the property returned by the assessor. That no record was ever kept of the assessment as made by the board of equalization, that the board's acts in this respect were unlawful and oppressive in that it made no such assessment of such notes held by the other banks of the county, although there were other such banks holding such notes of much larger amounts than those held by defendant.
The reply denied the allegations of the petition and averred that the board of equalization increased the defendant's assessment as it had a right to do and gave him notice thereof and in conformity to the notice he appeared before the board of equalization and the board of appeals and made a showing to have the assessment reduced, which was refused, and he took no further steps to correct the proceedings of the boards, and the action was therefore res adjudicata and could not be examined into in this suit; and whether or not the assessments were uniform and equal with other assessments is also a matter which can not be now looked into.
Upon the trial the plaintiff introduced in evidence the tax bill and rested. The defendant introduced his original assessment list as given in by him and returned by the assessor, which was made out on the printed form used for that purpose, in which the various kinds of personal property are divided into classes as required in section 7531, R. S. 1889, as amended by Act March 28, 1893, from second to tenth inclusive. Under this classification the list showed in class 2d, horses, cattle and hogs aggregating in value $ 95; in class 3d, farm implements, etc., $ 10; in class 4th, clocks, watches, sewing machines, household furniture, etc., aggregating in value $ 810; and in class 10th "all other property not above enumerated" $ 40, making a total assessment of $ 955.
The statutory classification which this list followed makes especial call for solvent notes and devotes two classes to them alone, class seventh being solvent notes unsecured by mortgage, and class eighth being solvent notes secured by mortgage. On the list returned by the assessor both these classes were left blank, and on the assessment made by the board of equalization they are also left blank.
Defendant also offered in evidence the page of the book kept by the board of equalization showing the assessment of the defendant as follows:
Horses, number, 2, value, dollars
$ 70.00
Asses and Jennets
Mules
Neat cattle, number, 1, value, dollars
15.00
Sheep
Hogs, number, 2, value, dollars
10.00
All other live stock
Brokers and exchange dealers
Corporate companies
Money, notes, bonds and other credits, class
5, 6, 7, 8, 9
All other personal property, class 3, 4, 10
860.00
Total valuation by assessor
955.00
Total valuation as adjusted by county board of
equalization
20,000.00
Total value as adjusted by state board of
equalization
School tax, cents per $ 100
250.00
State tax, cents per $ 100
50.00
County rev. tax, cents per $ 100
100.00
Courthouse, cents per $ 100
40.00
Total tax
And also the following page of a book of the board of equalization:
PARTS OF SECT...
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