The State ex rel. Howard v. Estate of Timbrook
| Decision Date | 27 February 1912 |
| Parties | THE STATE ex rel. ALBERT HOWARD, Collector, v. ESTATE OF HENRY TIMBROOK; I. M. TIMBROOK and G. W. TIMBROOK, Executors, Appellants |
| Court | Missouri Supreme Court |
Appeal from Caldwell Circuit Court. -- Hon. Francis H. Trimble Judge.
Affirmed.
Oscar L. Smith for appellants.
(1) The supplemental tax book and the assessor's book after the corrections, adjustments and additions to the assessor's book were made by the board, fixed the liability against "H. Timbrook" almost two years after his death and while the estate was in the hands of the executors. State ex rel. v. Kendrick, 159 Mo. 631; R. S. 1909, sec 11348; Searing v. Heavysides, 106 Ill. 85. (2) The assessor's book made by Gomer G. Jones was void because it was not signed or certified by him as required by statute. The court erred in refusing declaration of law No. 2. R. S 1909, sec. 11392; State ex rel. v. Schooley, 84 Mo. 447; State ex rel. v. Seahorn, 139 Mo. 582. (3) The assessor's book was void as to the assessment of the Henry Timbrook estate, because it was based on the assessment list given in by Tabitha Timbrook, while the estate was in the hands of the executors. The court erred in refusing declaration of law No. 1. R. S. 1909, secs. 11348 and 11355; Searing v. Heavysides, 106 Ill. 85. (4) The assessment of Henry Timbrook in 1906 of his personal property owned by him June 1, 1905, was void for the reason that there is no authority of law for assessing personal property for back years. Hannibal ex rel. v. Bowman, 98 Mo.App. 107; Welty on Assessments, p. 36; Cooley on Taxation (2 Ed.), p. 42, note 3; Hamilton v. Amsden, 88 Ind. 304; Cape Girardeau v. Buehrman, 148 Mo. 198. (5) The assessment of "Henry Timbrook" by the assessor long after his death did not fix a liability against his executors or his estate. The assessment is the very inception of taxation; and the act of the assessor in assessing personal property fixes the charge only against the person named by the assessor. R. S. 1909, secs. 11487, 11348, 11355, and 11351; State ex rel. v. Burr, 143 Mo. 209; State ex rel. v. Thompson, 149 Mo. 441. (6) If the board of equalization was attempting to make an original assessment under the provisions of Sec. 11407, R. S. 1909, its acts were void because it did not come within it. The board had no authority to add to the assessor's book the same items that were already on the book. Such items had been "omitted." Section 11354, R. S. 1909, is the only provision, under which the board could act, where the assessor's book contained the assessment. As the board undertook to come within the section by adding "omitted" property, it was bound to give notice to the "owner." The property may have had a number of owners first and last. Then which "owner?" Evidently the "owner" on June 1, 1905, who was on that day liable for the taxes. Henry Timbrook having been dead almost two years, the action of the board was void. The executors were, at most, only trustees, and were not empowered to fix, authorize or consent to a liability. R. S. 1909, sec. 11407; Hannibal ex rel. v. Bowman, 98 Mo.App. 107; State ex rel. v. Bank, 180 Mo. 717; State ex rel. v. Kendrick, 159 Mo. 631; Cape Girardeau v. Buehrman, 148 Mo. 198; Cooley on Taxation (2 Ed.), pp. 287, 365; Appeal of Powers, 29 Mich. 504; State ex rel. v. Railroad, 114 Mo. 1; State ex rel. v. Edwards, 136 Mo. 360.
D. E. Adams and Wm. Fitch for respondent.
(1) Omission of property from assessment may occur either by never having been placed on the list or book, or by being listed, but under such circumstances as to render it not a valid assessment. In either case the legal effect is the same. It is not the basis of a tax levy that can be enforced; it is "omitted property." Such is the status of the property in question in this suit. The list for $ 4150 given by Henry Timbrook to the township assessor in 1905 was void because Caldwell county was not legally operating under the township organization law, under the decision in the Gibson case. This theory was conceded by all parties to this suit, and the case was tried on that theory. The list given to the assessor by Tabitha Timbrook and signed by her was void and furnished no basis for assessment, because she had no authority to furnish a list; the property was in the hands of the executors. This is likewise conceded to be the status of that proceeding. Such being the condition of the property, it was not changed by the fact that Jones, the assessor, entered it on his book. Its legal status was still "omitted property" when the county board of equalization proceeded to assess it under the provisions of the laws of 1903, page 253 (now Sec. 11407, R. S. 1909). (2) The power of the county board of equalization to assess "property omitted" from the books then under examination, under the Laws of 1903, page 253, is no longer a question. It has been sustained in the following cases: State ex rel. v. Harrison, 226 Mo. 158; Ex pate Sanford, 139 S.W. 376; State ex rel. v. Timbrook, 145 Mo.App. 368; Western Tie & T. Co. v. Pulliam, 237 Mo. 1. (3) Appellant contends that the Jones assessment book, being void because not certified, is not a basis of action by the county board of equalization, and the only legal act they could do was to adjourn. The legal consequences of this status would have been that they were not entitled to pay for their services, because there was nothing they could do. We answer this contention by saying that the evident intention of the Act of 1903, page 253, was to meet just such cases as is presented in this record. When the board found that property had been omitted from assessment from whatever cause, it was the clear duty of the board to see that such property did not escape its just portion of the taxes by an oversight or technical error of any one, or the willful failure or neglect of someone to perform his duty. It was the duty of the executors of this estate to give a list of the estate property to the assessor under the provision of Section 9151, as amended, Act 1903, page 256; but having failed to do so, would take advantage of their own neglect.
OPINION
This is a suit for personal taxes for the year 1906 based on the assessment for 1905 of the personalty of Henry Timbrook, who died September 1, 1905. The suit was begun in the probate court of Caldwell county, by the mere filing of the taxbill. After a judgment for plaintiff, defendants appealed to the circuit court, where, at the June term, 1908, judgment again went against them, and they have appealed to this court.
In March, 1906, in the case of Burns v. Gibson, 195 Mo. 251, 94 S.W. 513, this court held that township organization in Linn county was illegal because of the unconstitutionality of the township organization law. Caldwell county had, up to that time, been operating under township organization under the same law. Every one after that conceded that the assessments made prior to that time in Caldwell county were void. The result was deplorable so far as its immediate effects were concerned, as it left the fiscal affairs of the county for the time being in a chaotic condition. Township organization was by common consent abandoned, and the Governor appointed R. W. Napier as collector and Gomer C. Jones assessor.
On June 14, 1905, Henry Timbrook signed, swore to and delivered his assessment list to the township assessor, showing $ 4150 assessed valuation. On the death of Henry Timbrook, his two sons, I. M. and G. W. Timbrook, took charge of his estate as his executors.
After his appointment, the assessor made an assessment of the property in the county subject to taxation on June 1, 1905, and as a part of that assessment he received from Tabitha Timbrook, widow of the deceased, an assessment list, signed and sworn to by her, in which she returned as the property of Henry Timbrook the amount of $ 64,500 personal property; and that amount was entered in the assessor's book as the property of H. Timbrook owned June 1, 1905.
That book was not verified by affidavit under section 11392, Revised Statutes 1909.
The board of equalization on April 2, 1907, on the theory that the assessment of H. Timbrook as shown on that book being based on the list made by Tabitha Timbrook was void, made the following entry of their proceedings in regard thereto:
And on April 22 the board made the following entry of its proceedings:
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