The State ex rel. Brown v. Hamilton

• Decision Date: 19 March 1907
• Citation: 100 S.W. 609,202 Mo. 377
• Parties: THE STATE ex rel. BROWN, Collector, Appellant, v. GEORGE A. HAMILTON, Curator
• Court: Missouri Supreme Court

100 S.W. 609

202 Mo. 377

THE STATE ex rel. BROWN, Collector, Appellant, v. GEORGE A. HAMILTON, Curator

Supreme Court of Missouri, Second Division

March 19, 1907

Appeal from Lincoln Circuit Court. -- Hon. H. W. Johnson, Judge.

Affirmed.

Stuart L. Penn and O. H. Avery for appellant.

(1) The situs of personal property in this State is, for purposes of taxation, at the domicile of the owner. Sec. 9121, R. S 1899; State ex rel. v. McCausland, 154 Mo. 185; State ex rel. v. Renshaw, 166 Mo. 682. (2) The personal property of a deceased person should be taxed at the domicile of such deceased person, and not at the place of residence of his administrator. Stephens v. City of Boonville, 34 Mo. 323. (3) The domicile of a minor child is that of the last surviving parent, and the appointment of a guardian who resides at a place other than the domicile of the minor does not change the minor's domicile. Lacy v. Williams, 27 Mo. 280; Lewis v. Castello, 17 Mo.App. 593; Markheineke v. Grothaus, 72 Mo. 204; DeJarnette v. Harper, 45 Mo.App. 415. (4) The domicile of a minor child is the situs of personal property for the purpose of taxation. School District v James, 37 Am. Dec. 527. (5) When a guardian gives in the property of his ward to the assessor as the property of his ward and not as his individual property, which he possibly has a right to do under the statute, the situs of such property is at the domicile of the ward. Hamilton v Brown, 172 Mo. 383. (6) A guardian is personally liable for the taxes assessed, levied and charged against his ward's property. State ex rel. v. Burr, 143 Mo. 209; Kansas City v. Simpson, 90 Mo.App. 50. (7) Judgment must be responsive to the pleadings. Schnieder v. Patton, 175 Mo. 684; Cope v. Snider, 99 Mo.App. 496.

Chas. Martin for respondent.

(1) While we think the court erred in its judgment requiring defendant to pay school tax for the benefit of school district No. 6, township 50, range one west, the defendant has not appealed from that judgment, and if the tax does not belong to school district No. 4, township 49, range one west, this error, if any, is a matter about which plaintiff cannot complain. Our statute makes the residence of the owner or taxpayer the place where personal property shall be assessed. Secs. 9144, 9145, R. S. 1899. The statute nowhere uses the word domicile in connection with the assessment of property. Domicile is something more than residence. It requires the intention as well as the fact to constitute domicile. Of course, the intention of a person as to his home could not be a guide to the assessor in making his assessment. The statute requires something visible -- something that the assessor may see and determine himself -- a fact and not an intention. Residence as distinguished from domicile answers this requirement. It was the fact of residence without regard to intention upon which the court sustained the tax assessed in the case of State ex rel. v. Renshaw, 166 Mo. 682, and in the case of State ex rel. v. McClausland, 154 Mo. 186; the court reversed the judgment because the trial court refused to instruct that if the defendant was not a resident of the city of St. Louis but was a resident of St. Louis county the plaintiff could not recover. State ex rel. v. Brown, 172 Mo. 383. (2) The county clerk's duty is ministerial. He cannot assess or change the assessor's books and can only extend and compute the taxes for school as shown by the last annual assessment for State and county purposes as provided by section 9844. School District v. Wickersham, 34 Mo.App. 337; State ex rel. v. Railroad, 135 Mo. 619. The agreed statement of facts in this case shows that upon the lists and personal assessment books made by the assessor the property was assessed to school district No. 2, township 49, range one east, and it was only by the wrongful and unauthorized act of the county clerk that it was carried upon the collector's books to the credit of district No. 4, township 49, range one west. (3) A curator has the legal custody and control of his ward's estate, and where personal property is held by a trustee who has the legal custody and control over it, the situs of the property is with the trustee. 1 Desty on Taxation, 337; Mayor v. Stirling, 29 Md. 48; State v. Matthews, 10 Ohio 431; Trustee v. Augusta, 90 Ga. 634; State v. Collector, 39 N. J. L. 79; Towsey v. Bell, 23 Ind. 423. (4) The court's view in adjudging that the school tax belongs to district No. 6, township 50, range one west is amply sustained by the statute and authority. The minor had been a resident of that district for more than ten years before the assessment was made, was a member of his aunt's family, and received the benefits and advantages of the public school in that district. The relation of parent and child existed between them, and in such a case the status of the minor became fixed at the home of the aunt. Cox v. Boyce, 152 Mo. 576; Academy v. Bobb, 52 Mo. 360; State v. Kavanaugh, 133 Mo. 460; Hennessy v. Brewing Co., 145 Mo. 411; Eickhoff v. Railroad, 106 Mo.App. 544; Lamar v. Micou, 114 U.S. 222; Schouler's Domestic Relations, 303; In re Benton, 92 Iowa 202; Traction Co. v. Cameron, 137 T. R. 49; Kirkland v. Whately, 4 Allen 462.

OPINION

FOX, P. J.

This case is brought to this court by appeal on the part of the plaintiff from a judgment of the Lincoln County Circuit Court in a suit by the collector of Lincoln county, Missouri, against George A. Hamilton, for the taxes due from the estate of his ward, Charles M. Hamilton, a minor, for the years 1897, 1898 and 1899. We deem it unnecessary to burden this statement by reproducing the petition in the cause. There were three suits for taxes, one for each of the years as heretofore indicated, and by order of the court they were consolidated. The cause was submitted to the court upon the evidence introduced and the court made the following finding of facts:

"That the last surviving parent of the minor died on the day prior to 1888, and at the time was a resident of District No. 4, Tp. 49, R. 1 W., Lincoln county, Missouri. That Geo. A. Hamilton, defendant, was appointed curator of the estate of said minor; that said Hamilton's residence was at the time of his appointment and is now in District No. 2, Tp. 49, R. 1 E., in said county; that immediately after the death of said last surviving parent of said minor, then only nine years old, he went to live with his aunt in District No. 6, Tp. 50, R. 1 W., and continued to live with her under her parental control and direction until he attained his majority; that said minor was enrolled in said district as a child therein and enjoyed all the rights and privileges therein as other enrolled children; that the school board of District 4, Tp. 49, R. 1 W. returned the said minor as a taxpayer resident therein; that the estate of said minor was duly assessed by the assessor of Lincoln county, Missouri, but the taxes levied therein were assigned to District No. 4, Tp. 49, R. 1 W., by the clerk, and so charged on the collector's books; that defendant tendered all state and county taxes to the collector, but the same was refused by said collector, for the reason that the school tax was not included therein.

"That the residence of said minor from the death of his said last surviving parent was with his aunt in District No. 6, Township 50, Range 1 west, in said county; that the taxes should have been assigned and set apart to said District No. 6, Township 50, Range 1 west. It is therefore ordered and adjudged that the defendant pay the state and county taxes without penalty. That defendant pay the school taxes according to the current rate in District No. 6, Township 50, Range 1 west, and that the said taxes be transferred to said District No. 6, Township 50, Range 1 west, and that defendant pay the costs of this finding."

And afterwards on the same day and date entered the following judgment, to-wit:

"Now comes the parties to the above cause and submit the matters in the issue herein to the court upon the evidence introduced and an agreed statement of facts filed herein, and the court being fully advised of and concerning the premises finds that the state and county taxes sued on as shown by the three taxbills in said consolidated suit aggregate the sum of six hundred and fifteen and 58-100 dollars without interest and penalties for the years 1898 1899 and 1900, and that the school taxes for the same years aggregate the sum of five hundred and forty-three and 20-100 dollars without interest and penalties. That prior to the first day of January following the year after said state and county taxes became due and payable the defendant tendered and offered to pay the full amount of said state and county taxes to the collector of Lincoln county, and that said collector refused to accept the same unless the defendant also paid in full said school taxes, and that defendant has ever since been ready and willing to pay said state and county taxes and tenders same into court, and the court further finds that said school taxes so sued for in said taxbills, were assessed and extended upon the tax books for the years of 1898, 1899 and 1900 upon estimates and reports made by School District No. 4, Township 49, Range 1 west, in Lincoln county, Missouri, and that at the time of the assessment of said taxes for said years the defendant was curator of the estate of said Charles M. Hamilton, a minor and had and controlled the assets and estate of said minor, and resided in, and gave the lists of said property of said minor to the assessor at his house in School District No. 2, Tp. 49, R. 1 east in Lincoln county, Missouri. The court further finds that at the death of his parents, the...