The State ex rel. Harrison County Bank v. Springer

• Decision Date: 05 May 1896
• Parties: The State ex rel. Harrison County Bank, Appellant, v. Springer et al
• Court: Missouri Supreme Court

35 S.W. 589

134 Mo. 212

The State ex rel. Harrison County Bank, Appellant, v. Springer et al

Supreme Court of Missouri, First Division

May 5, 1896

Appeal from Harrison Circuit Court. -- Hon. P. C. Stepp, Judge.

Affirmed.

D. J Heaston and A. F. Woodruff for appellant.

(1) The answer filed by defendants in the way of pleading should have been stricken out. The writ of certiorari brings up for review nothing but the record proper of the proceedings of the lower tribunal. This writ does not bring up the evidence if any were given, neither is it proper to file answer by way of pleading to explain, excuse, or defend the action of the board. The record proper alone is to be considered, and it can not be aided or supplemented by pleading or extrinsic evidence. Railroad v. State Board, 64 Mo. 294; State ex rel. v. Dowling, 50 Mo. 134; State ex rel. v. Board, 108 Mo. 235; State ex rel. v Smith, 101 Mo. 174; State ex rel. v. Powers, 68 Mo. 320; State ex rel. v. City of Kansas, 89 Mo. 34; State ex rel. v. Mayor, 57 Mo.App. 192; State ex rel. v. St. Louis Co., 47 Mo. 594; State ex rel. v. Cauthorn, 40 Mo.App. 94; House v. Clinton Co., 67 Mo. 522; Maupin v. Franklin Co., 67 Mo. 327; Moberly v. Nave, 67 Mo. 546; City of Kansas v. Railroad, 81 Mo. 285; Johnson Co. v. Wood, 84 Mo. 489; Reppy v. Jefferson Co., 47 Mo. 66; Hansberger v. Railroad, 43 Mo. 196; State ex rel. v. Moniteau Co., 45 Mo.App. 387; 2 McQuillin, Plead. and Practice, secs. 1347 to 1355; 2 Desty on Taxation, pp. 631, 632, 633. (2) The newspaper clipping purporting to be notice of increase of assessments was no part of the record of the board, was never filed, was not sworn to by the printer, and should have been stricken out and not considered by the court. State ex rel. v. St. Louis, 67 Mo. 113; Ellis v. Railroad, 51 Mo. 200; Railroad v. State Board, 64 Mo. 294; Boonville v. Ormrod, 26 Mo. 193; Dickey v. Tennison, 27 Mo. 373; Corrigan v. Morris, 43 Mo.App. 456; Fisher v. Davis, 27 Mo.App. 321. (3) This board is a kind of quasi court of inferior and very limited jurisdiction, presumptions in its favor will not be indulged, especially matters of jurisdiction, and the record itself should show affirmatively all things necessary to give jurisdiction. State v. Metzger, 26 Mo. 65 and 601; Bersch v. Schneider, 27 Mo. 101; Backenstoe v. Railroad, 86 Mo. 492; Cunningham v. Railroad, 61 Mo. 33; In re Petition Gardner, 41 Mo.App. 589; France v. Evans, 90 Mo. 74; Railroad v. Young, 96 Mo. 39. (4) The law provides that when the valuation of land is raised the board shall give notice of the fact by personal notice through the mail or by advertisement in any paper published in the county. The law makes no provision for notice when assessment of personal property is increased, therefore personal notice is essential. R. S. 1889, sec. 7519; Cooley on Taxation [1 Ed.], pp. 265 to 268; Rich Hill Co. v. Neptune, 19 Mo.App. 438; State ex rel. v. Board, 108 Mo. 235; Laughlin v. Fairbanks, 8 Mo. 367; Brown v. Weatherby, 71 Mo. 152; Speck v. Wohlien, 22 Mo. 310; City v. Gleason, 15 Mo.App. 25; Avant v. Flynn, 49 N.W. 15; Railroad v. Washington Co., 3 Neb. 30; Butler v. Supervisors, 26 Mich. 22; Darling v. Gunn, 50 Ill. 424; Stewart v. Palmer, 74 N.Y. 183; Myers, Vested Rights, 221. (5) What constitutes the record is an important inquiry. The only record proper brought up by the writ in this case is the original assessment list and the entries of record made by order of the board. The certificate of the clerk is no part of the record, neither could he make an advertisement or publication a part of the record by referring to it and attaching it to the record. Railroad v. Young, 96 Mo. 39; Jefferson Co. v. Cowen, 54 Mo. 234; Whitely v. Platte County, 73 Mo. 30; Zimmerman v. Snowden, 88 Mo. 218; Werz v. Werz, 11 Mo.App. 26. (6) The relator being a bank duly incorporated under the law, the assessment should have been made against the stockholders and not against the bank, as it was done, the board therefore had no legal right to increase the assessment, as the assessment was illegal and the board can not make an original assessment. R. S. 1889, sec. 7538; Laws, 1891, p. 195; State ex rel. v. Catron, 118 Mo. 280; Bank v. Meredith, 44 Mo. 500; Springfield v. Bank, 87 Mo. 441; Lionberger v. Rowse, 43 Mo. 67; Railroad v. Cass Co., 53 Mo. 17; Relfe v. Ins. Co., 11 Mo.App. 374. (7) The act approved April 1, 1891, Laws of 1891, at page 195, is void, being in conflict with sections 3 and 4, article 10, of the constitution, which provide that taxes must be uniform, and that all property shall be taxed in proportion to its value, and said act does not comply with section 28, article 4, of the constitution, the object of the law is not clearly expressed in the title. State v. Burgdoerfer, 107 Mo. 1; State v. Dinnisse, 109 Mo. 434; City of Kansas v. Payne, 71 Mo. 159; People v. Weaver, 10 Otto, 539; Pelton v. Bank, 11 Otto, 143; Cumming v. Bank, 11 Otto, 153. (8) The record shows that at the meeting of the board of appeals, the second meeting, there was no order made approving or affirming the first or proposed increase of assessment, and therefore the county clerk had no legal right or authority to carry the increased assessment upon the tax book and extend taxes on the same. R. S. 1889, sec. 7519; Avant v. Flynn, 49 N.W. 15.

S. C. Price for respondents.

(1) An answer, or statement, accompanying the certified transcript of a record is permissible and proper as a part of a return to a writ of certiorari, although the reviewing court will not hear evidence extrinsic of the record in support of any fact alleged in such answer or in the petition for the writ. Railroad v. State Board, 64 Mo. 294; State ex rel. v. Board, 108 Mo. 235; State ex rel. v Powers, 68 Mo. 320; 2 Desty on Taxation, p. 633. (2) As to notice when the valuation of personal property is increased, the statute is silent; and, while under the decisions of our courts, the necessity of notice will be presumed, yet other or different notice will not be required in the case of personal property, than that provided by the statute in the case of real estate. R. S. 1889, sec. 7519; Rich Hill Co. v. Neptune, 19 Mo.App. 438; State ex rel. v. Board, 108 Mo. loc. cit. 242. (3) It is not necessary that the board of equalization should give notice before the valuation of property is raised; but after that is done, notice of the fact is required. And where such notice is required the fact that it has been given may be shown outside of the ecord. R. S. 1889, sec. 7519; State v. Searcy, 46 Mo.App. 422; State v. Searcy, 111 Mo. 236; Black v. McGonigle, 103 Mo. loc. cit. 201. (4) The law requires that the county board of equalization shall meet on the first Monday in April, at which meeting valuations shall be raised when proper. The board is afterward to meet on the fourth Monday in April "to hear reason, if any may be given, why such increase should not be made." At such second meeting they meet as a board of appeals, and there is nothing in the law, or in reason, requiring the board to affirm, or take other action on their doings of the first meeting, unless reasons are offered why such prior actions should not stand. R. S. 1889, secs. 7517, 7518, 7519. (5) The law creating the board of equalization fixes the time for its first meeting, and provides what it shall do at that meeting. It also fixes the time of the second meeting as a board of appeals, and makes it a duty that the board give notice of its action at the first meeting in raising assessments, and of the time of its second meeting. The law presumes that public officers do their duty, and in the absence of evidence to the contrary, that such notice was given. State ex rel. v. Bank, 120 Mo. loc. cit. 169; Lenox v. Harrison, 88 Mo. loc. cit. 496; Long v. Co., 68 Mo. loc. cit. 430. (6) Before the amendment of 1891, shares of stock in an incorporated bank were assessed to the shareholders. Quaere, whether under that law they are not to be assessed as an aggregate sum, with other items, to the bank. But however that may be, there is nothing in this record to show that the sum listed by the relator bank is intended to represent shares of stock. It may represent other taxable items than its capital stock. And relator can not take advantage of its own wrong doing by returning an improper list, especially after pleading in its petition for this writ, the list as returned to the assessor as a true list. Law of 1891, page 195; R. S. 1889, secs. 7563, 7541; Railroad v. County Clerk, 57 Mo. 223; State ex rel. v. Powers, 68 Mo. 320; Bank v. Nipp, 47 Kan. 744. (7) The act of April 1, 1891, Laws of 1891, page 195, is not open to the objections urged against its constitutionality. It is not in conflict with the provisions of the constitution referred to in relator's brief. It does not, in fact, make shares of stock in corporations taxable at their face value without reference to actual value. Laws of 1891, p. 195; Constitution of Missouri, secs. 3 and 4, art. 10; Constitution of Missouri, sec. 28, art. 4; R. S. 1889, sec. 7564. (8) If the court should hold that the fact of notice of raising the valuation of relator's property, by the board, and of the time of its meeting to hear complaints must appear by the record, then we submit that such fact is sufficiently shown by this record. The printed notice is sufficient in form, and it is found with papers and records where it ought to be. It is not necessary that it be sworn to by the publisher of the paper as a summons out of circuit court, or that the clerk's indorsement of filing be on the notice. R. S. 1889, sec. 7519; Marlet v. Hinman, 31 Cent. Law Journal, 211, and note; Hook v. Fenner, 18 Colo. 283; Olin v. Zeigler, 46 Mo.App. 193. (9) The law makes no provision for preserving...