
    Cape Girardeau v. Buehrmann, Appellant.
    Division Two,
    February 21, 1899.
    1. City Taxes: assessment: specific property omitted. The “back” assessment of personal property, when compared with the-list for the alleged omitted year, should show on its face the specific property omitted, and unless it does so it is void. Defendant’s estate was described as “personal property” taxed for $35.87, and afterwards, the assessor, without notice and without discovering any specific personal property omitted from the list, made a “back assessment” against the personal estate for the same fiscal year of $6,300, and the city taxes on this, when extended by the city register, amounted to $110.25. Held, that the “back assessment” was void.
    2. -: -: absent owner: notice: copy of assessment. If the assessor fails to leave with the absent owner the written or printed notice, required by section 7532, Devised Statutes 1889, or fails to leave with his family a duplicate list of the assessment as therein required, the assessment made by him “on his own view or-the best information he can obtain,” is illegal; and in such ease a. suit for taxes, bottomed on the condition precedent that the assessor had performed his duty, must fail.
    
      Appeal from Gape Girardeau Court of Common Pleas. HoN. AlexANdee Ross, Judge.
    REVERSED.
    Robert L. WilsoN for appellant.
    (1) Tbe trial court erred in not sustaining appellant’s objection to the introductions of any evidence in behalf of' plaintiff. The petition did not state a cause of action, and said action was prematurely brought, being brought within four months after the taxes became delinquent. The charter- and ordinance of plaintiff requires that no suit for delinquent taxes should be brought within twelve months after they became delinquent. R. S. Ord. Cape Girardeau, sec. 60; Heard v. Ritchey, 112 Mo. 516; Turk v. Stahl, 53 Mo. 437;. Duryee y. Turner, 20 Mo. App. 34. (2) There was no valid assessment, no notice baying been given to tbe absent taxpayer that be bad been assessed by leaving a copy of tbe assessment with some member of bis family over tbe age of fifteen years. R. S. 1889, secs. 1902 and 6567; Rich Hill Mining Oo. v. Neptune, 19 Mo. App. 438. (3) Defendant was not personally liable for tbe payment of taxes of said ■estate. "Woodworth v. Woodworth, 70 Mo. 601; Byerly v. Donlin, 72 Mo. 270; Yeoman v. Younger, 83 Mo. 424. •(4) Tbe bonds of tbe city were not liable to assessment. Macon v. Jones, 67 Ga. 489; Miller v. Wilson, 60 Ga. 505; Augusta v. Dunbar, 50 Ga. 387; Buffalo v. Courtelinx, 15 N. Y. 387.
    Sam. M. GeeeN and B. E. Davis for respondent.
    (1) Tbe attention of this court is. respectfully called to the assessor’s testimony about calling at tbe business house of appellant to get bis assessment of tbe estate of bis testatrix, and that be more than once left assessment blanks with instructions. Tbe trial judge saw and beard this witness and found for tbe respondent. Tbe case of' State ex rel. v. Spencer, 114 Mo. 574, quoted by appellant,has no application here, .as, in that case, tbe lists were returned to tbe assessor himself by tbe owner, and tbe valuation raised without notice. Here there was no appeal and no raising of assessment. Tbe appellant utterly fails to show any remissness on tbe part of tbe ■assessor to perform tbe duties required of him by law, and tbe presumption is that be did bis duty. State ex rel. v. Wayne Oo., 98 Mo. 362. (2) It should be noted that tbe supplemental assessment was made of normal school bonds “discov•ered” since tbe first assessment and not that already assessed, taxed and paid, but other and entirely different personal property. (3) Tbe objection urged by appellant that tbe failure of tbe assessor, in tbe absence of the head of tbe ‘family, to leave a duplicate list with some member of tbe family over the age of fifteen years, is not tenable, because it was not shown that be did not furnish a member of Buehr-mann’s family over the age of fifteen years with a copy of the assessment. The presumption obtains that public officers do-their duty. State ex rel. v. Wayne Oo., 98 Mo. 362.
   GANTT, P. J.

This is an action for city taxes and involves a construction of the revenue laws of this State, and appellate jurisdiction is thereby conferred upon this court.

The city of Cape Girardeau at the time of the commencement of this action was a city organized under a special charter-approved March 29, 1812 (Laws of Missouri 1812, p. 328), and as such had power to levy and collect taxes not exceeding three-quarters of one per cent per annum upon all property, real, personal or mixed, taxable by law for State and county purposes. [Art. 3, sec. 1, Act of 1872, p. 332.]

Annetta Buehrmann was a resident of said city prior to-March, 1889, and during said month died in said city, testate, leaving a last will by which she appointed defendant, Otto Buehrmann, her executor. On March 28, 1889/ he-qualified and took charge o¥ her estate, which consisted of a few personal effects, household furniture, a few notes of small amounts which she held against her legatees, and eighteen bonds of the city of Cape Girardeau, each of the par'value of' $500 and bearing eight per cent interest, aggregating at that time $9,000 principal, and $1,080 interest, total $10,080. These bonds were issued and bore date 1873 and were payable thirty years after date, or in 1903.

They were known as “normal school bonds,” and were issued by said city for the purpose of procuring the location of the Southeast Missouri Normal School in said city. The executor consumed all the personal estate except these bonds in paying allowances, taxes, and costs of administration. Ile-duly advertised for his final settlement at the May term, 1891, of the probate court of said county. At said May term, on May 25, 1891, tbe executor filed bis final settlement, wbicb seems to have been amended at tbe October term, 1891, and th© estate distributed and vouchers filed. Tbe final order of discharge was made January 6, 1892.

Tbis action is brought against tbe defendant in bis individual capacity on an implied obligation. Tbe city does not seek to charge tbe estate.

Tbe fiscal year of tbe city of Cape Girardeau begins on tbe first Monday in May of each year -and ends tbe first Monday in May of tbe succeeding year.

Tbe defendant produced tbe receipt of tbe city collector, dated April 20, 1891, fox tbe city taxes on-the estate of Annetta Buehrmann for tbe fiscal year ending tbe first Monday in May, 1891, amounting to $35.8IK. Tbe petition contains two counts. Tbe first count is for,tbe taxes of tbe fiscal year 1891, and tbe second for tbe fiscal year 1892.

Tbe allegations of tbe first count are to tbe effect that it was the duty of defendant to return to tbe assessor tbe personal property of said Annetta’s estate in bis hands, his neglect to do so, and that because of said neglect tbe assessor on tbe seventeenth day of June, 1891, “did assess back” tbe said personal estate for tbe fiscal year ending first Monday in May, 1891, to be of tbe value of $6,300, and thereupon in accordance with certain ordinances of said city, taxes were extended on said personal property by tbe city register to tbe amount of $110.25.-

It is further alleged that the said taxes became delinquent on May 1, 1891, and defendant became liable to pay interest on tbe same at rate of one per cent per month from and after May 1, 1891; “that said defendant after said taxes became due and delinquent failed, neglected and refused to pay tbe same or any part thereof, without any demand therefor being presented to tbe court having competent jurisdiction for allowance thereof or in any other way as it was his duty to do, in accordance with tbe statutes in such cases made and provided.”

The second count is of like tenor and effect save that it seeks to collect the taxes assessed for 1892 for the fiscal year ending May 1, 1892, amounting to $157.50. It appears that the executor paid the State and county taxes for the year 1890 on the basis of a valuation of $6,300.

I. Disposing of the taxes for the two years separately, that of 1891 presents this feature. It is conceded and established that Mrs. Buehrmann’s estate was assessed for the fiscal year ending May, 1891, and the city taxes levied for ghat year amounted to $35.87/4, which the executor paid April 20, 1891. It is contended that, when the assessor concluded he had not assessed all of the taxable property of the estate and determined to assess back for that year, he gave the executor any notice of his intention to do so.

The ordinance of the city provided that, “If by any means any personal property as contemplated by this ordinance, or any lot or part of lot or tract or part of tract of land, shall be omitted in the assessment of any year or series of years and not put upon the assessor’s book, the same when discovered shall be assessed by the assessor for the time being and placed upon his book with all arrearages of taxes which ought to have been assessed and paid for in former years charged therein.” The first assessment of Mrs. Bnehrmann’s estate for city taxes of 1891 described the personal estate merely as “personal” property. There was nothing to indicate whether it consisted of live stock, furniture or bonds or notes.

No objection was made to that assessment by the assessor and it passed the board of equalization for that year without challenge. Having been finally received it formed the basis of the taxes to be extended thereon for that year. Had it been grossly excessive and no complaint had been made to the board of equalization, it would have been final as to the executor. Can it be true that an assessor can adopt this method of rectifying his valuation, while the taxpayer is denied relief because be did not appeal or seek relief from tbe board of equalization ? It affirmatively appears from tbe testimony of tbe assessor that be did not discover any specific property wbicb be bad omitted from bis assessment in 1891 but simply took bis total of $6,300 for bis “back assessment,” from tbe county clerk. It is apparent be could bave obtained tbis information as readily in 1891 before completing bis valuation as be did after bis roll bad been'returned, tbe levy extended and tbe tax paid. To permit sucb a practice to obtain would work great confusion. Tbe assessor is required to make bis valuation of property when be receives tbe list or makes it upon bis own information. “If tbe taxpayer himself does not appeal be bas.tbe right to suppose that tbe assessment will be allowed to stand as made.” [Cooley on Taxation (2 Ed.), 420; Rich Hill Mining Co. v. Neptune, 19 Mo. App. 442; State ex rel. v. Spencer, 114 Mo. 578.]

No doubt if specific real property is overlooked or omitted it can be subsequently assessed for tbe previous omitted years, but can it be said tbe personal estate was omitted when as in tbis case a lumping assessment is made in one year and tbe taxes extended and paid, and tbe next year another equally general description is made tbe basis of a back assessment, only increased in amount. How can it be known that tbe same property is not at least partially assessed twice for tbe same year. Tbis is not a technical reassessment but is tbe ex parte act of tbe assessor only, correcting bis first assessment, without notice to tbe taxpayer, and without opportunity to be beard before the’board of equalization.

Tbis ordinance permits tbe assessor, not tbe county clerk, to extend tbe arrearages of taxes. Tbe general statutes of tbe State only permit tbis back assessment of real estate and they govern in the city as well as tbe county. [E. S. 1889, sec. 1902.] But conceding that tbe ordinance is valid still we think tbe back assessment when compared with tbe alleged omitted year should show on its face tbe specific property omitted, and unless it does so it is void. It necessarily follows that without reference to other points raised, the so-called back assessment for the year 1891, did not constitute any ground of liability and the court erred in not sustaining the objection to the evidence of plaintiff and in not finding for defendant on said count.

II. Was the allegation of an assessment for the fiscal year 1892 sustained by the evidence ?

Plaintiff introduced the city assessor, William Wilier, and he testified as follows: “I am assessor of the city of Cape Girardeau and have been since 1881. I called at Otto Buehr-mann’s business house in the latter part of May, 1891. I went to get his assessment, and the assessment of the estate of Annetta Buehrmann of which he was executor. He was not there and I called two or three days afterwards to get said assessments. He still was absent. I left assessment blanks, with instructions to give in his assessment in ten or fifteen days. He never gave in his assessments as required, and I made them out myself. (Witness identified assessment list). The assessment period in 1890 commenced the first day of June, 1890, and the assessment period in 1891 commenced the first day of June, 1891. (The assessment lists were then offered showing the same amount as set forth in plaintiff’s petition). I got the $6,300 assessed for 1890 from the county clerk. The $9,000 assessment for 1891 I got from Otto Buehrmann’s final settlement as executor of the estate of Annetta Buehrmann, deceased, filed in the common pleas clerk’s office. I made my own view of the matter. On the 19th day of June, 1891,1 made the assessments for 1890 and 1891, on the same day, that is on the 19th day of June, 1891. (Witness then identified personal assessment book of plaintiff for year ending May 1, 1891, also the assessment book for fiscal year ending May 1, 1892, showing for back assessment for 1890 the sum of $6,300, and for 1891 the sum of $9,000). After I made the assessment I put it on the assessment book and turned it over to tbe city register. I gave no notice of equalization. There was a board and it was my duty to be' present. I don’t remember of being present.” Defendant objected to the testimony of said W. LI. Wilier because there-was no legal assessment made, which objections were by the court overruled, and evidence admitted, to which ruling of the-court, defendant at the time objected and excepted.

As already observed the statutes of the State regulate- and control assessments in the cities of the State. [R. S. 1889, sec. 1902.]

The ordinance of Oape Girardeau conformed to the statute in this, that both the statute, section 1531, and ordinance 379, approved April 29,1882,made it the duty of the assessor to call at the office, place of business, or residence of each person required to list property and require such person to make out a true list and make affidavit thereto, and the ordinance, section 7, and the statute, section 7532,provide, that if the person whose duty it is to make such list be absent when the assessor calls, “the assessor shall leave at the office or usual place of residence of such person, a written or printed notice-requiring such person to make out and leave at the place named by the assessor on or before some convenient day, named therein, not less than ten days nor more than twenty, a sworn statement of his property and shall leave with such notice a blank for such list, and if such person shall neglect or refuse within the time designated to deliver such statement, then the assessor shall make such assessment on his -own view or the best information he can obtain.” Now, it is absolutely certain that the assessor did not leave the printed or written notice required by this statute and ordinance. lie simply left the blank with verbal instructions for defendant, to bring his assessment in ten or fifteen days.

Defendant not having received any notice, did not make out the list and thereupon the assessor made out one.- Now the lawr also required that,“Whenever an assessment of property is made in the absence of the head of the family, a duplicate list of the assessment shall be left with some member of the family of not less than 15 years of age, and shall deliver a copy •of the assessment to the owner at the time of making the said •assessment if demanded by such owner.” [R. S. 1889, sec. 7567.]

The assessor left no copy of his assessment with any member of defendant’s family. This is a substantial right secured to the citizen and we have no disposition or right to construe it out of the statutes. To neglect it is to ignore the right of ■a taxpayer to seek to redress if the assessment is unjust.

As this count is bottomed upon the condition precedent 'that the assessor had performed his duty and as he utterly failed therein, it is obvious this count also is not supported -by the evidence.

The judgment of the circuit court is reversed.

Shebwood and Bubg-ess, JJ., concur.  