State Ex Rel. Flaugh v. Jaudon , 286 Mo. 181 ( 1921 )


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  • Original action in mandamus. Relators are some six taxpayers of Kansas City, Missouri, *Page 188 who sue for themselves, and other taxpayers similarily situated. Respondents are Kansas City, and Benjamin Jaudon, the Treasurer of such city.

    Upon application this court granted an alternative writ, to which return was duly made, raising some questions of facts. To this relators filed their reply, and the parties thereupon filed an agreed statement of facts, as follows:

    "Agreed Statement of Facts.
    "It is hereby stipulated and agreed as to the facts and acts set forth and mentioned in the petition or application and alternative writ herein as follows, viz:

    "(1) The City Assessor did go through the form of making the City Assessment and did prepare a Land Assessment Book for the year 1920, and did append his affidavit of verification and certificate of verity thereto in the form required by the Charter of Kansas City, and did deliver such book to the City Clerk at his office on March 15, 1920;

    "(2) The City Board of Appeals did hold its sessions and did go through the form of performing their duties in respect to such assessment book prior to April 19, 1920.

    "(3) The City Clerk did have such assessment book and present the same to or had the same accessible to the Common Council on April 19, 1920, and the City Council did, on April 19, 1920, pass the ordinance fixing the rate of tax levy for 1920, and the same was approved by the Mayor on April 20, 1920, and a certified copy thereof with such Land Book was delivered to the City Auditor on or about April 20, 1920.

    "(4) The City Auditor did thereupon go through the form of extending the taxes at the rate specified in said ordinance, in figures and in the appropriate columns on the City's such "Land Book for 1920" on the assessments as thereon shown and the words and figures thereon shown purporting to be the respective assessment valuations as stated in said petition and alternative writ *Page 189 to have existed and been thereon prior to June 1, 1920, and attached thereto his certificate as required by City Charter dated May 17, 1920.

    "(5) On May 24, 1920, the State Board of Equalization had not completed its labors and the values to be fixed by it for assessment of real estate in Kansas City had not been determined, and for that reason the City Auditor did not deliver the land tax books to the City Assessor, but the same were held until it should be determined whether the State Board increased or decreased the land values, so that if the same were increased or decreased the City Assessor could make an assessment to conform to the values fixed by the State Board, and after the State Board acted the City Assessor did make the assessment conform to the values fixed by said board and thereafter the land tax books were delivered to respondent, Ben Jaudon, City Treasurer.

    "(6) The state and county assessments made as of June 1, 1918, and as of June 1, 1919, were the same except as to the twenty per cent raise in land valuation made by the State Equalization Board on the June 1, 1919, assessment, on June 1, 1920, and the figures of the City Assessor made prior to June 1, 1920, in his books for the city assessment for the year 1920, were the same as such state and county assessment valuations as they were prior to June 1, 1920.

    "The Relators were severally the owners of the several tracts of real estate described in their petition, which several tracts of land were entered on said Land Assessment Tax Books and appear to have been so assessed, and the taxes so levied and extended upon said book for the several amounts as originally made prior to June 1, 1920, and later the several amounts were changed after the first day of June, 1920, drawing lines through the amounts of assessment valuations and amounts of taxes shown on such Land Book prior thereto and writing amounts of respective valuations and taxes and increasing the same twenty per cent as to each *Page 190 tract over the amounts as originally written therein, and that the amounts tendered by the relators to the respondent, Benjamin Jaudon, City Treasurer, on June 30, 1920, were the amounts as shown to be the amount of taxes due severally on their respective tracts of land prior to June 1, 1920, and prior to making such changes on said Land Assessment Book after June 1, 1920.

    "(7) In so far as the various city officers could perform their duties in making and completing such purported assessment valuations, purported extentions of the tax levy, and making and delivering said Land Tax Book of 1920, before June 1, 1920, and doing other acts above mentioned before that date, the same all were legally done, and in so far as they could do any of the same on or after June 1, 1920, the same were legally done.

    "(8) It is the intention of this stipulation to do away with the necessity of taking evidence in support of the facts alleged in pleadings in this cause and to rest the case upon the question whether the City Assessor could hold in abeyance the city assessment until after the State Board of Equalization had acted, and then to make the city assessment to conform to the values fixed by said board.

    "Each party, however, reserving the right to make and present any other contention deemed proper upon the pleadings or this statement.

    "There is submitted with this stipulation a true copy of all entries on the Land Book of 1920 relative to one of the tracts of land of Relator Willard N. Munroe, showing the visual appearance of such book as to such tract, and the same is illustrative of such book as to the other tracts of land thereon and therein, and the same respective matters relative thereto appear in such book as to all land tracts therein.

    "It is also agreed that the respective officially certified copies of the City Levying Ordinance, of the City Assessor's affidavit and certificate upon and attached to the said Land Book of 1920 and of the City Auditor's *Page 191 certificate thereto and the verified copy of the City Treasurer's receipt of such book, filed as exhibits with the petition or application of Relator for the writ herein, shall be considered in evidence and as a part of this stipulation."

    There is a slight controversy over the agreed facts, but it is immaterial, as we view the turning question in the case. Upon the pleadings and these agreed facts the case was submitted here.

    The first four paragraphs of the agreed facts indicate that the city official was getting his Land Tax Book ready at the dates and within the times prescribed by the City Charter. Under such charter the City Board of Appeals had no right to raise or lower assessments in general.

    The crux of the case lies in the fact that after the city assessor had prepared his Land Tax Books for 1920, and after the other agencies of the city had acted thereon, the State Board of Equalization raised the land assessments, in Kansas City, made June 1, 1919, to January 1, 1920, twenty per cent. The city assessor then raised his assessments twenty per cent, with the result that all land taxes in Kansas City were increased twenty per cent.

    By this action, the six named relators, after having tendered their taxes, as they stood upon the book before this raise, ask this court to compel the city and its treasurer to receive the same in full of their city taxes for the year 1920. It is alleged that some $500,000 in taxes are involved by this twenty per cent raise made by the State Board of Equalization. The points made, and the further applicable facts, are left to the opinion. This outlines the case.

    I. The charter provisions, the constitutional provisions, and the statutory provisions are all material in the solvingState of the mixed question here involved. Section 11, ofScheme. Article X of the Constitution, in so far as here applicable, provides: *Page 192

    "Taxes for county, city, town and school purposes may be levied on all subjects and objects of taxation; but the valuation of property therefor shall not exceed the valuation of the same property in such town, city or school district for state and county purposes. . . . For city and town purposes the annual rate on property in cities and towns having thirty thousand inhabitants or more shall not, in the aggregate, exceed one hundred cents on the one hundred dollars valuation."

    This case requires the consideration of the State as well as the city, scheme of assessment. We take the State scheme first. By Section 11348 the assessor is required "between the first days of June and January and after being furnished with the necessary books and blanks, by the county clerk at the expense of the county, proceed to take a list of the taxable personal property . . . and assess the value thereof in the manner following, to-wit: He shall call at the office, place of doing business or residence of each person required by this chapter to list property, and shall require such person to make a correct statement of all taxable property owned by such person, or under the care, charge or management of such person, except merchandise which may be required to pay a license tax, being in any county in this State, in accordance with the provisions of this chapter; and the person listing the property shall enter a true and correct statement of such property in a printed or written blank prepared for that purpose; which statement, after being filled out, shall be signed and sworn to, to the extent required by this chapter, by the person listing the property, and delivered to the assessor. Such list shall contain: First, a list of all the real estate and its value, to be listed and assessed on the first day of June, 1893, and every year thereafter, anything in this or any other section to the contrary."

    So that, in each year from June 1st to the following January 1st, there must be listed and assessed all real estate, and it might be added all personal property, but *Page 193 such is not here involved. This assessment so made forms the basis for the state and county taxes of the next year, or the year beginning with the January 1st, upon which the assessment by the assessor is presumed to close. Between June 1, 1919, and January 1, 1920, the County Assessor of Jackson County, in which Kansas City is located, is presumed to have assessed the real estate of such county, including said city. This is to be done annually as required by this section, and as also by Section 11371, Revised Statutes 1909. Section 11392, Revised Statutes 1909, thus provides:

    "The assessor, except in St. Louis City, shall make out and return to the county court, on or before the twentieth day of January in every year, a fair copy of the assessor's book verified. . . . And the clerk of the county court shall immediately make out an abstract of the assessment book, showing aggregate footings of the different columns, so as to set forth the aggregate amount of the different kinds of real and personal property and the valuation thereof, and forward the same to the State Auditor to be laid before the State Board of Equalization."

    By Section 11402, a county board of equalization is provided for each county, but this board, under Section 11403, which defines its power and duties, cannot reduce the valuation fixed by the State Board of Equalization.

    The state board, under Section 11411, shall meet on the last Wednesday in February, but no time is fixed for the completion of its work. The relevant portions of Sections 11412 and 11414, thus read:

    Section 11412 provides: "The State Auditor shall lay before the Board of Equalization the abstracts of all the taxable property in the State . . . and the board shall proceed to equalize the valuation of each class thereof among the respective counties of the State in the following manner: First, it shall add to the valuation of each class of the property, real or personal of each county, which it believes to be valued below its real *Page 194 value in money such per centum as will increase the same in each case to its true volume. Second, it shall deduct from the valuation of each class of the property, real or personal, of each county, which it believes to be valued above its real value in money such per centum as will reduce the same in each case to its true value."

    Sections 11414 provides: "When the State Board of Equalization shall have completed its labors, the State Auditor shall immediately transmit to each county clerk the per centum added to or deducted from the valuation of the property of his country, specifying the percentage added to or deducted from the real property and the personal property, respectively, and also the value of the real and personal property of his county as equalized by said board; and the said clerk shall furnish one copy thereof to the assessor and one copy to be laid before the annual county board of equalization."

    The assessment upon which the State and county taxes for 1920 were to be paid could not be known until the State Board of Equalization had concluded its work. When so concluded, and not before, could be determined the assessed value of lands and other property in Kansas City. Their work from the last Wednesday in February, 1920, to the date of the conclusion of their work, was the thing that finally fixed these property values. Other agencies following must await the action of the State Board of Equalization, before they can fully complete their tax books. These other agencies may have properly fixed their local rates, but they could not fix the assessed value, and the amount of the tax until the conclusion of the work by the State Board, and its certification to the County Clerk, by the Auditor. So that, delay of the State Board may very properly occasion delays of other officials. We are now speaking solely of state and county taxes, and the state agencies dealing with them. So too, as we have before us the land tax for 1920, our remarks should be so limited. So far as the state and county taxes for 1920, in Jackson County, *Page 195 and in Kansas City, as a part of such county, is concerned, it is clear that there was no completed assessment, for such taxes, until after the city authorities had done the things mentioned in paragraph 1, 2, 3 and 4 of the agreed facts quoted, supra. It is also clear that as to state and county taxes, the final value fixed by the State Board, would govern the amounts of the state and county taxes. This discussion we make in advance of the real matter in issue, and as a basis for the discussion to follow.

    II. From what has been said county officers must wait the action of the State Board of Equalization, and cannot determine the exact amounts of either state or county taxes due from the respective taxpayers, until such board has completedCity its work. Not only so, but their action must be uponValuations. the assessment made between June and January of the year before the board acts in the completion of the assessment. The course of action under the Kansas City charter is as follows:

    By Section 7 of Article IV (Charter of 1908) the Mayor appoints an Assessor, by and with the consent of the Upper House of the Common Council. By Section 6 of Article V of said charter such city Assessor is required on or before March 15th of each year to make a return to the City Clerk, of "a full and complete assessment of all property, real and personal, in said city on the first day of January next preceding." Real estate is required to be reported in separate volumes. The form of these real estate books is prescribed by Section 11 of said Article V. Section 12 provides for such Assessor's certificate to the books, and the delivery to the Common Council, through the City Clerk. Section 13 provides for a Board of Appeals, and prescribes therefor two meetings annually, the first, for six days, beginning on the 3rd Monday in March, and the second for six days, beginning on the first Monday in April. Section 15 gives the general duties and powers of this board, but in it is *Page 196 found this clause: "But that said board shall have no power to change the rate or standard of value adopted by the Assessor." It can, however, correct inequalities, and errors, having in view the standard. Section 26 of Article 18 fixes the fiscal year of Kansas City as beginning on third Monday in April. Section 16 of Article V provides that the City Clerk shall present to the Lower House of the Common Council at its first meeting for the fiscal year the assessment books, and that the Common Council shall thereupon proceed by ordinance to levy the taxes for the fiscal year. By Section 17 of Article V it is provided that, on the next day after the ordinance levying the tax has been passed, the City Clerk shall deliver the assessment books, and a certified copy of such ordinance, to the City Auditor. Such Auditor is thereupon required to forthwith extend the taxes upon such assessment books, and add thereto the delinquent taxes, and foot up such lists, and then append his certificate. The section then thus proceeds:

    "The book containing the assessment upon real estate, when so extended and certified, shall be entitled and called `Land Book Of ____' (the fiscal year to which applying). The Auditor shall on or before the first day of June in each year deliver the tax book and merchants' licenses for such year to the City Treasurer, taking therefor his receipt in duplicate, which receipt shall state the gross amount of all taxes contained in said book and also the amount of each separate class of taxes, as shown by the footings of the Auditor of the same, one of which receipts the Auditor shall keep in his office and the other he shall deliver to the Comptroller: All this had been done, save and except the action of the Auditor, in preparing and delivering the books.

    By Section 21, Article V, if taxes are paid in June a rebate of six per cent is allowed; if in July, four per cent, and if in August, two per cent. Other sections relate to the collection of taxes. *Page 197

    Such is an outline of the city's tax scheme. There is nothing therein to compel the city to adopt the valuation for state and county taxes. There is much therein tending to show that it was intended to fit in with the state scheme. The City Assessor must take as a basis the property on hand as of the first of January, it is true, whilst the State takes the property as of the first of June proceeding. But even then, the City Assessor, by the Constitution, could not exceed the value fixed for state and county purposes. The question is what state and county value must be observed? Evidently the last valuation. When it is noted that the State Board is required to meet in February, and the City Assessor is not required to act until March 15th, it would appear that the city scheme was intended to fit in with the state and county scheme. It is clear that the Constitution compels the city officer to accept as a measuring standard the value fixed for state and county purposes. That is to say, he is forbidden to go over that value, and in this way the state and county valuation becomes a guiding standard for such city assessor. It is argued that the City Assessor need not go as high as the state and county valuation, and can therefore fix his own values, within those bounds. This may be granted, and should be granted, yet it does not change the fact that there must be a standard fixed by county and state authorities, to limit, if not guide the city assessor. The question is whether or not it shall be the standard fixed by the State in 1920, or a standard fixed at some previous time. The Constitution fixes a standard above which the City Assessor cannot go. That he may go below such standard, so fixed, does not destroy the idea that there must be a standard. This because the Constitution so indicates. And in my judgment the standard thus fixed by the Constitution means the one upon which the state, county and city taxes are to be paid. That is, if the city taxes are for 1920, as here, the standard, which limits the City Assessor, must be the state and county values *Page 198 completed in 1920, for the state and county taxes of 1920. In other words when the Constitution says that the valuation for the city taxes shall not exceed the valuation for the state and county taxes, it means the valuation fixed for state and county, for the year when all these taxes, state, county and city, are to be paid.

    III. But whilst it is true, as we believe — that the Constitution, Section 11, Article X, contemplates, that the standard, above which the city assessor cannot go, is the value of property fixed for State and county purposes, for the same year in which the city taxes are levied andValid Assessment are to be paid (in this case for 1920), yetBefore this does not settle the instant case. TheState Board Acts. case is one of first impression, and the guiding stars are limited. We are forced to a construction of the several applicable constitutional provisions. Section 11 of Article X says the valuation for city purposes shall not exceed the fixed standard of value, above discussed. As a fact, in this case, the City Assessor's valuation did not exceed the standard, which we conceive to be the one fixed by said Section 11, Article X, of the Constitution, and this constitutional provision does not prohibit a lower valuation by the City Assessor. Its prohibition is against excess, and not further. It is true that the assessor did not have before him the correct standard, but when the correct standard lawfully appeared, he was well within its terms. His action had not violated the Constitution, by having a valuation for the 1920 city taxes, in excess of the valuation for the state and county taxes for the same year. Had his valuation exceeded the standard, the taxes would, at least, have been invalid to the extent of such excess. In this connection we should consider Section 10 of Article X which reads:

    "The General Assembly shall not impose taxes upon counties, cities, towns or other municipal corporations or upon the inhabitants or property thereof, for county, city, town or other municipal purposes, but may, *Page 199 by general laws, vest in the corporate authorities thereof of the power to assess and collect taxes for such purposes."

    By proper provisions Kansas City has been authorized to assess and collect her own taxes. The method of so doing she has provided for by the charter provisions, to which we have called attention. Unless this charter scheme in some way violates either the State Constitution, or some general law of the State, the scheme must stand.

    As previously said, it would appear that the charter scheme was designed to fit into, and articulate with, the state scheme, and only failed in this case, because the State Board of Equalization did not act prior to March 15th, when the city charter scheme required the City Assessor to report his assessment. Had the action of the State Board been, just what it later was, on the day the City Assessor filed his assessment, the city assessment, although lower than the state and county assessment, would have violated no state law or state constitutional provision, and would have been valid. And, as we conclude, it was valid, although filed in advance of the report of the State Board, for the reason that after the report of the State Board was made, the city assessment did not exceed the values for state and county purposes. The case then must turn upon other questions, which we discuss later.

    IV. In the foregoing we conclude (1) that the standard by which the city assessment must be measured, in determining its validity, is the state assessment concluded by the State Board of Equalization in 1920, and (2) that theOpening Assessment assessment made by the City Assessor, andAfter filed with the City Clerk, was a validState Board Acts. assessment, although filed in advance of the findings by the State Board.

    We are therefore forced to the facts to determine whether or not this assessment so fixed by the City Assessor *Page 200 was, in fact and law, the final and only assessment made by such officer. If it was, then it is the basis of the 1920 city taxes upon real estate. This because it was within the standard fixed by the Constitution.

    By the 7th clause of the agreed facts it is stated:

    "(7) In so far as the various city officers could perform their duties in making and completing such purported assessment valuations, purported extentions of the tax levy and making and delivering said Land Tax Book of 1920, before June 1, 1920, and doing other acts above mentioned before that date the same all were legally done; and in so far as they could do any of the same on or after June 1, 1920, the same were legally done."

    By the 5th clause of the agreed facts it is said:

    "(5) On May 24, 1920, the State Board of Equalization had not completed its labors and the values to be fixed by it for assessment or real estate in Kansas City had not been determined, and for that reason the City Auditor did not deliver the land tax books to the City Assessor, but the same were held until it should be determined whether the State Board increased or decreased the land values so that if the same were increased or decreased the City Assessor could make an assessment to conform to the values fixed by the State Board, and after the State Board acted the City Assessor did make the assessment to conform to the values fixed by said board and thereafter the land tax books were delivered to respondent, Ben Jaudon, City Treasurer."

    There was no authority for a re-delivery of the books from the Auditor to the City Assessor.

    By the 7th clause of the agreed facts it appears that the city agencies had each and all performed their duties, up to the delivery of the tax books to the City Auditor, if as a matter of law, such officers could act at all, prior to the action of the State Board of Equalization. In the previous paragraphs we have ruled that they could *Page 201 act under their charter powers, and that their acts would be valid, if as a fact the assessment did not exceed the standard thereafter fixed by the State Board. It did not exceed this standard. What might have been the city's situation, if it had exceeded the state valuation, is not for decision in this case. Nor is the question here as to what would have been the city's situation had the city agencies delayed action until after the action of the State Board. Counsel for respondents urge that delayed action would not have invalidated the city assessment, and we think that is true. [St. Louis San Francisco Ry. Co. v. Gracy, 126 Mo. l.c. 485 486; State ex rel. v. Stamm, 165 Mo. l.c. 83; State ex rel. v. Phillips, 137 Mo. 259.]

    The question here is, was the Assessor's action completed prior to June 1, 1920? The agreed facts show that the City Assessor did duly deliver his Land Assessment Books to the City Clerk on March 15, 1920. Under the city charter he had then performed his full duties. [Sec. 6, Art. 5, Charter of Kansas City.]

    By Section 12 of Article 5, this delivery to the City Clerk is a delivery likewise to the Common Council. There is no authority in the city charter for such assessor to repossess himself of these delivered books, and thereafter make a new and different assessment. His work was completed upon the delivery of the books to the City Clerk and through such clerk to the Common Council. [Secs. 6 and 12, Art. 5, City Charter.] For this act of the Assessor in re-possessing himself of the books, and making therein a new and different assessment, the respondent should be able to point to the authority for such act. He has not done so, and cannot do so. The books as delivered by the City Assessor to the City Clerk on March 15, 1920, with the land values therein, are the books to control the city taxes for 1920. The subsequent attempted assessment is void, as being unauthorized either by charter or law. This must be true for the reason that the city scheme provided for a Board *Page 202 of Appeals. To this board the taxpayers could at least go for the corrections of irregularities and mistakes in the Assessor's work. To say that after all the city agencies have acted (as they had here) the City Assessor could re-possess himself of the books and make a new assessment would preclude the taxpayers after the final assessment from his right to go to the City Board of Appeals, which is a valuable legal right. This right the city charter gave him, and this right was cut off by the action in this case. When all the city agencies having to do with the city assessment had acted, the city assessment had closed, and could not be re-opened. All agencies had acted in this case, because the duties of the Auditor were the pure ministerial duties of extending the taxes upon the assessments and the delivery of the books to the Treasurer. He had no part in the assessment.

    V. It is urged by the city (1) that in a mandamus proceeding, such as we have here, there is an improper joinder of the six relators in this case, and for that reason we should quash the alternative writ, and (2) that, as to the unnamed relators, other taxpayers of the city, there is no allegation of aMandamus: tender of the admitted legal taxes. The latterRelators. contention is true, and such taxpayers have no place in this case. There is no allegation as to tender, so far as they are concerned, and as to them no mandate can go in this case. This allegation may, however, be treated as surplusage in the petition and alternative writ, and leave the petition and alternative writ good, as to the six relators who have pleaded tender. As to them the sole question is, whether or not they have been improperly joined as relators.

    These six taxpayers are in the identical, and same position, so far as the general proposition involved is concerned. Under the general proposition of the invalidity of the twenty per cent additional tax is concerned, their interests are absolutely identical. If the *Page 203 case was by injunction, and not by mandamus, there would be no question as to the proper joinder of these parties, as parties plaintiff. Whilst the individual relator, so far as the amount of taxes is concerned, might have a personal and individual interest, yet in the vital issue, i.e. as to whether or not this added twenty per cent is legal, they have the same and identical interests. The amounts of their respective taxes are but mere incidents to the main question. That main question is, whether or not, in law, the city had the right to add this twenty per cent of additional taxes. These relators are alleged to be taxpayers, who had tendered their alleged legal taxes, and who jointly sought to have this single issue (whether not the twenty per cent added) was legal or illegal. In this simple issue they were jointly interested, and it is the issue of this lawsuit. The strict common-law rules of mandamus have been much relaxed in more recent years, as will be shown by the cases entertained by this court

    Whilst the exact point here made was not raised, yet, in State ex rel. Wahl v. Speer, 223 S.W. 655, we entertained mandamus on the relation of divers taxpayers, against the County Court of Pemiscot County. We not only entertained it, but granted the permanent writ. It is true that these taxpayers had a common interest in the thing that they sought to have done. Again in State ex rel. Rutledge v. St. Louis School Board, 131 Mo. 505, we entertained and granted to the relators (divers taxpayers) our writ of mandamus. The only distinguishing features between those cases and the case at bar is, that these six relators may have tendered different amounts of taxes. It is not denied that their tenders were sufficient, if the March 15th assessment stood, so that the respondent here singles out the single question, whether or not this increase was legal. In fact the return admits the tenders, but only questions the insufficiency thereof on the theory that the March 15th assessment was not good. The respondents therefore *Page 204 make a case of a single issue, in which all of the six relators are equally and jointly interested. Under these facts we rule that they were and are entitled to the peremptory writ of mandamus as prayed. The writ is so ordered. All concur.