Wymore v. Markway

• Citation: 89 S.W.2d 9,338 Mo. 46
• Decision Date: 18 December 1935
• Docket Number: 33009
• Parties: Carl F. Wymore and Maye L. Wymore, a Minor by Her Guardian, Frank H. Wymore, Appellants, v. Al. Markway, County Collector of Cole County
• Court: United States State Supreme Court of Missouri

89 S.W.2d 9

338 Mo. 46

Carl F. Wymore and Maye L. Wymore, a Minor by Her Guardian, Frank H. Wymore, Appellants, v. Al. Markway, County Collector of Cole County

No. 33009

Supreme Court of Missouri

December 18, 1935

Motion for Rehearing Overruled December 18, 1935.

Appeal from Cole Circuit Court; Hon. W. S. Stillwell Judge.

Affirmed.

Carl F. Wymore and Irwin & Bushman for appellants.

(1) By virtue of Section 9756, Revised Statutes 1929 (Mo. Stat Ann., p. 7872), the assessment of property for taxation is made by the assessor by obtaining from the taxpayer a list of his taxable property and its value. When this list is received, the value given to the property at that time is its assessed value. State v. Gehner, 27 S.W.2d 4; State v. Spencer, 114 Mo. 577; Cape Girardeau v Buerhman, 148 Mo. 203; Rich Hill Mining Co. v. Neptune, 19 Mo.App. 442; Riefe v. Columbia Life Ins. Co., 11 Mo.App. 381. (2) Only in the event the taxpayer fails or refuses to list his property for taxation and give the values, has the assessor authority to make the list and fix the values. Sec. 9757, R. S. 1929; Sec. 9760, R. S. 1929; State v. Spencer, 114 Mo. 577; State ex rel. v. Cummings, 151 Mo. 58. (3) The taxpayer in this case can have no relief in law since the Board of Equalizaion, having adjourned sine die, has no power or authority to reconsider the case. State ex rel. v. Wray, 55 Mo.App. 653.

Elliott M. Dampf and T. S. Mosby for respondent.

(1) The assessor alone has the right to fix the value of the real estate, and was not bound by the value fixed by the taxpayer. Sec. 9792, R. S. 1929; State ex rel. v. Reed, 159 Mo. 77. (2) The law presumes that the assessor did his duty, and there being neither allegation nor proof of fraud the assessment will not be disturbed. State ex rel. v. Western Union Co., 165 Mo. 502; National Bank v. Kimball, 103 U.S. 732; Hamilton v. Rosenblatt, 8 Mo.App. 237; State ex rel. v. Bank, 120 Mo. 161; State ex rel. v. Edwards, 315 Mo. 209. (3) The list made out by the taxpayer was not conclusive on the assessor, but was only for his convenience and assistance in the performance of his duties. State ex rel. v. Carr, 178 Mo. 231; State ex rel. v. Wilson, 216 Mo. 287; State ex rel. v. Casey, 210 Mo. 252; State ex rel. v. Dungan, 265 Mo. 366.

OPINION

Hays, J.

Suit by the appellants as plaintiffs against the county collector of Cole County to enjoin the collection of certain taxes assessed against Inlot 464 and Inlot 468 in Jefferson City.

It was alleged in the petition and shown in the proofs that the tax return in question was made by Frank H. Wymore, as the guardian and curator of the plaintiffs, by filing with the county assessor an "Assessment List" in June, 1930, for the taxes for the year 1931. He listed Inlot 464 and gave the value thereof as $ 47,000, and listed Inlot 468 and gave the value thereof as $ 40,000. This list was sworn to as provided by Section 9756, Revised Statutes of Missouri, 1929, and was delivered in person to the assessor of Cole County. At the time the list was delivered Mr. Wymore discussed the value of the property with Mr. Tanner, the assessor.

The assessor thereafter, without any notice to Mr. Wymore, caused his clerk to enter the property on the assessment rolls as of the value at which the property had been assessed for the year previous. Thus Inlot 464 was entered on the rolls at $ 68,000, being $ 21,000 in excess of the value listed; and Inlot 468 was entered on the rolls at $ 60,000, being $ 20,000 in excess of its listed value; making a total excess of $ 41,000. It is admitted in the record that no notice of any sort was given Mr. Wymore by the assessor that the values as set out on his assessment list as delivered had in any way been changed; and he had no actual notice of the fact until after the county board of equalization had adjourned.

It was shown by the proofs that the amount of taxes due and payable on an assessed valuation of $ 87,000 for the two properties as returned by Mr. Wymore, would amount to $ 1828.30, and that the amount of taxes on $ 41,000 according to the excess in value as added by the assessor would amount to $ 856.90, or a total of $ 2685.20. Plaintiffs contended and alleged that the additional tax of $ 856.90 was unlawful for the reasons hereinafter stated. They tendered into court the sum of $ 1828.30, which they conceded was lawfully due, and asked the court to require the collector to accept that sum in satisfaction of all taxes levied against said property, and that the collector be restrained from collecting or attempting to collect the additional sum of $ 856.90.

Upon the trial the court found for the defendant, dismissed plaintiffs' bill and refused to grant them the injunctive relief sought. Plaintiffs appealed. The construction of revenue laws of the State is involved; hence this court's jurisdiction of the appeal. [Art. 6, sec. 12, Const. of Mo., Amendment of 1884, sec. 5.]

It is well to preface here the statute pertaining to initial assessments. [Sec. 9756, R. S. 1929.] This section requires an assessor to list the taxable personal property in his county, and assess its value, and for this purpose requires each person to make a sworn statement of all his taxable property, except certain specified classes, and of its value; and that such list shall contain, among other things, a list of all real estate and its value, and said list shall be signed and sworn to by him and delivered to the assessor.

The bill in substance charged that, "After said assessment list had been filed in the office of the county assessor he arbitrarily and without warrant of law and authority wrongfully and without notice to plaintiffs entered said assessments on his assessment books" at the greater valuations stated above; that he thereafter delivered said books to the county clerk, who entered upon the county collector's books the taxes for 1931, as the same were wrongfully and erroneously computed upon the valuations as increased in the manner already stated and as charged to be in excess of the lawful assessment against said properties. (Italics ours.)

The bill charged also that having had no notice of the raise (made theretofore by the assessor) at the time the county board of equalization thereafter met, plaintiffs had no opportunity to apply to said board and now have no adequate remedy at law.

The answer joined issue by a general denial.

The oral evidence on the question at issue was very brief. Mr. Wymore, the curator, sought the assessor at the latter's office with regard to the assessment list. Wymore testified: "I requested value comparison with other store buildings and apartment buildings in Jefferson City, then he and I agreed to list our property at $ 47,000 for the store building and $ 40,000 for the apartment building." He made out the blanks, filling in the above valuations. The assessor, to the contrary, testified: "When he (Wymore) came in and made out his return he told me the amount he thought was fair and I put it on the assessment list, and I told him that it was too much of a cut and I didn't think it would stick . . . but I entered it on the list just as he said." The assessor, in making his assessment took the assessor's book of the previous year, noting thereon such changes as he desired to make, then turned the book over to his clerk who, at his direction, in making up the current assessor's book, copied the valuations appearing in the former book. It further appears that Mr. Wymore, had during a period of several years previous, been attempting, though unsuccessfully, to secure a reduction in the assessed valuation of these properties which had uniformly been assessed at the valuation, respectively, of $ 48,000 and $ 60,000. It inferentially appears that he perhaps thought he had succeeded in listing the property at his own valuation, insofar as the assessor was concerned. Yet he was not, as it appears, without doubt as to the outcome. He waited until the last afternoon of the sitting of the board of equalization, to inquire of the county clerk whether the board had as yet taken up the Wymore property. Receiving a negative answer, he left after requesting the clerk to inform him by telephone when the board should come to this property. Next morning he called the clerk and received the information the board had finally adjourned the preceding afternoon. He then sought relief from the county court which, informed of the facts, declined to act.

The respondent maintains that the law presumes that the assessor did his duty, and that there was neither allegation nor proof of fraud, and hence the assessment should not be disturbed; citing State ex rel. v. Western Union, etc., Co., 165 Mo. 502, 65 S.W. 775; State ex rel. v. Edwards, 315 Mo. 209, 286 S.W. 25, and other cases. Such a presumption does obtain, and the other general rule of law also is as stated.

We construe appellants' bill to charge arbitrary action on the part of the assessor in that, without legal right or authority, he, without giving them actual notice, entered his increased assessment upon the assessment roll instead of entering the valuations listed by the taxpayer, and that his act in so doing was an obvious violation of law, and therefore beyond, or in excess of, his jurisdiction.

From the conclusion just stated it necessarily follows that the question of notice vel non, and any question of whether or not Wymore relied thereon, are eliminated from the case, as the plaintiffs are now being accorded their day in court to contest the assessor's action, and to gain complete redress if entitled thereto. Nor are we concerned with the actual values of the property, or with discrimination as between them and other similar properties as no such issues were raised...