The State ex rel. Gardner v. Harris

• Decision Date: 29 January 1921
• Citation: 227 S.W. 818,286 Mo. 262
• Parties: THE STATE ex rel. FREDERICK D. GARDNER et al., Constituting STATE BOARD OF EQUALIZATION, v. DAVID H. HARRIS, Judge of Circuit Court
• Court: Missouri Supreme Court

227 S.W. 818

286 Mo. 262

THE STATE ex rel. FREDERICK D. GARDNER et al., Constituting STATE BOARD OF EQUALIZATION, v. DAVID H. HARRIS, Judge of Circuit Court

Supreme Court of Missouri

January 29, 1921

Writ quashed.

Frank W. McAllister Attorney-General, and John T. Gose, Assistant Attorney-General, for relators.

(1) Certiorari is the appropriate remedy. State ex rel. v Weithaupt, 254 Mo. 329. (2) The Circuit Court of Boone County, had no jurisdiction over the State Board of Equalization. State ex rel. v. Hall, 221 S.W. 712. (3) The territorial jurisdiction of a circuit court's superintending control being limited by the Constitution to the limits of such court's district, and the State Board of Equalization not being found, or capable of being found therein, it would appear to be constitutionally beyond the power of such circuit court to alter, modify or change any order and judgment of the State Board of Equalization. Sec 23, art. 6, Mo. Constitution; State ex rel. v. Hall, 221 S.W. 708. (4) Even if the Circuit Court of Boone County had the power and authority to review, correct, change or alter the judgment and order of the State Board of Equalization, it certainly could not do so in a suit wherein such State Board was not made a party, or notified of the proceeding. State v. Bank, 213 S.W. 817. (5) The judgment is not responsive to the issues presented in the proceedings. Schneider v. Patton, 175 Mo. 723. The suit was brought to compel the County Clerk to change his personal property book to conform to the order of the State Board of Equalization. The judgment finds that the clerk's books were in conformity with the order of the State Board of Equalization and then proceeds to reform the order of the State Board. The review and correction of the judgment of the State Board was not a matter within the pleading. But the subject-matter of the judgment is the alteration and correction of the judgment of the State Board and the judgment directing the County Clerk to change his books is based upon, and wholly incidental to, such subject-matter of the judgment.

McBaine, Clark & Rollins for respondent.

(1) The finding of the State Board of Equalization was not altered by the Circuit Court of Boone County. No attempt was made to alter it. It wasn't even claimed that the State Board was before the circuit court. Nor could it have been brought before that court. State ex rel. v. Hall, 221 S.W. 708; State ex rel. v. Brinkop, 238 Mo. 298; State ex rel. v. Reynolds, 224 S.W. 401. (2) The stock in the Missouri corporations owned by the Exchange National Bank was not taxable against the bank or its stockholders. State v. Lesser, 237 Mo. 310; State ex rel. v. Brinkop, 238 Mo. 298; Sec. 11357, R. S. 1909; Sec. 5219, U.S. Revised Statutes; Owensboro Bank v. Owensboro, 172 U.S. 664; Mercantile Natl. Bank v. New York, 121 U.S. 138; Bank of California v. Richardson, 248 U.S. 476; Hannibal Railroad v. Shockett, 30 Mo. 550; Mo. Constitution, art. 10, secs. 3 and 4; Valle v. Zeigler, 84 Mo. 214. (3) The County Board of Equalization had full power and authority to relieve the Exchange Bank, as it did, of the illegal assessment of this corporation stock. Sec. 1140, R. S. 1909; Word v. Board of Equalization, 135 Mo. 309; State ex rel. v. County Court, 47 Mo. 594; State ex rel. v. Lathrop, 50 Mo. 134; State ex rel. v. Board of Equalization, 256 Mo. 455. (4) The State Board of Equalization had no authority to do anything except equalize the value of the bank stock in all the counties of the State. It is presumed that it acted legally, but if it did not, the County Board had exclusive power to fix and determine what proportion of the total the Exchange National Bank should pay. State ex rel. v. Merchants Bank, 213 S.W. 815; Sec. 11412, R. S. 1909; State ex rel. v. Vaile, 122 Mo. 33. (5) The State Board not being a party to the proceeding in the circuit court and not being affected by its finding in any way, was not a proper relator and the writ heretofore issued in this court should be dismissed. State ex rel. v. County Court, 237 Mo. 469; State ex rel. v. Fraker, 158 Mo. 445. Certiorari was the appropriate remedy to quash the record to the local tax officials who did not obey the legal orders of the County Board of Equalization, Art. 6, sec. 23, Mo. Constitution; Sec. 3863, R. S. 1909; State ex rel. v. County Court, 47 Mo. 594; State ex rel. v. Downing, 50 Mo. 134; State ex rel. v. Brinkop, 238 Mo. 298.

WALKER, C. J. Graves, J., dissents in separate opinion.

OPINION

In Banc.

Certiorari.

WALKER C. J.

This is an original proceeding in certiorari instituted in this court by the Governor and others, constituting the State Board of Equalization, to require David H. Harris, as Judge of the Circuit Court of Boone County, to certify to the Supreme Court the records on file in said circuit court in a certain cause determined therein, in which the State of Missouri, at the relation of the Exchange National Bank, was the relator, and the members of the County Board of Equalization of Boone County were the respondents.

A summary of the relevant portions of the petition filed herein by the State Board of Equalization is as follows:

1st. That neither the State Board of Equalization nor any of its members was served with process in said cause or made a party thereto;

2nd. That the Circuit Court, by its judgment, changed the judicial order of the State Board of Equalization, without affording relators an opportunity to be heard and without having before it the records of the State Board of Equalization relating to the equalization and adjustment of the assessed valuation of property in Boone County;

3rd. That if the Circuit Court had the power to change the record of the State Board of Equalization it could do so only in a direct proceeding for that purpose wherein relators were made parties and the record of the board was before the court for examination;

4th. That the Circuit Court has no jurisdiction to change, alter, modify and correct the judgment, assessment, or equalization of assessments of property in Boone County, Missouri, made, determined and ordered by the State Board of Equalization;

5th. That the judgment is an attempt on the part of the Circuit Court of Boone County to exercise superintending control over the State Board of Equalization;

6th. That the judgment attempting to correct and change the record of the State Board of Equalization in regard to the assessment of bank stock in Boone County is in contravention of Section 23 of Article VI of the State Constitution; and against public policy; and the judgment is not within the pleadings;

7th. That the Circuit Court of Boone County had no jurisdiction of the subject-matter of the judgment so far as it relates to a change in, or alteration of, the judgment or order of the State Board of Equalization in the matter of the assessment of property or bank stock within Boone County;

8th. That the judgment is an attempt to do indirectly that which the court has no power to do directly;

9th. That the rendition of the judgment by David H. Harris, as Judge of the Circuit Court, was an usurpation of judicial power and in excess of any jurisdiction the circuit court had therein.

Upon the filing of said petition the Supreme Court issued its writ of certiorari directing the judge of the Circuit Court to certify to this court a full, true and complete copy of its record and proceedings in the cause on file in and determined by said Circuit Court.

For his return the circuit judge has filed with the clerk of this court a certified copy of the record and proceedings of the cause determined in his court. Such portions of the return as are necessary to an understanding and determination of this case will be inserted and considered in their relevant order.

Upon the filing in this court of the return, relators filed a motion to quash same based upon the same grounds stated in the petition, which motion was overruled. Respondent, alleging the converse of the grounds stated in relator's motion, moved to dismiss the proceedings and quash the writ. This motion was also overruled.

In June, 1920, the Exchange National Bank of Columbia filed a petition for a writ of certiorari in the Circuit Court of Boone County against the members, naming them, of the County Board of Equalization of Boone County as respondents. After the usual formal allegations as to the character of the relator and the official status of the respondents, it is alleged that on the 5th day of April 1920, the County Board assessed the stock of the Exchange National Bank of Columbia, exclusive of real estate, at $ 168,142; that on June 1, 1920, the State Board of Equalization ordered that the taxable property in Boone County be extended upon the tax books and assessed at 60 per cent of the assessed valuation of same; that the assessed valuation of all of the bank stock in Boone County be fixed at $ 808,240; that 60 per cent of the assessed valuation of the stock of said Exchange National Bank, exclusive of its real estate, as theretofore fixed by the County Board of Equalization, was $ 100,885, and that an assessment upon this basis would be upon the same basis and in the same manner that the assets of other banks in Boone County were assessed against their stockholders; that the Clerk of the County Court of Boone County, as ex officio secretary of the County Board, without authority of law, extended upon the personal assessment records of Boone County for 1920 the taxable valuation of said Exchange National Bank at $ 121,885; that he had no authority to extend the assessed valuation of said bank at such amount; that the proper assessment upon the basis as determined by the County Board and the State Board is $ 100,885; that the...