82 Mo. App. 112 | Mo. Ct. App. | 1899
The plaintiff is a tax paying citizen of the city of Glasgow — a city which was incorporated under a special act of the legislature of this state in the year 1845. The defendant is the collector of said city.
The petition, inter alia, alleges that in the year 1898 the plaintiff, in compliance with the provisions of section three of chapter 2 of an ordinance of said city, approved December 21, 1892, delivered to the assessor of said city a list of his personal property, duly subscribed and sworn to, amounting to $3,222, which was received by said assessor and duly recorded as the true assessment of his property, and that said assessor returned his assessment: book to the mayor and board of councilmen of said city and made no change or report to the said board of councilmen, sitting as a board of appeals, that plaintiff was delinquent or had omitted any part of his property from the
That by reason of defendants insolvency plaintiff is utterly remediless by the strict rules of law, and that his property will be sold and sacrificed unless this court could interfere by injunction to restrain the illegal acts of said defendant Mor-, gan. The prayer was for an injunction restraining the collector from selling the plaintiff’s property, etc. A temporary injunction was granted.
Afterwards, a demurrer was interposed to the petition on the grounds (1), that it did not state facts sufficient to constitute a cause of action and (2), that plaintiff had an adequate remedy at law, which, being overruled the defendant refusal to plead further. A final decree was ordered making the temporary injunction perpetual. The defendant has appealed. .
It appears that the relator’s list was not changed by a board of councilmen sitting as a board of revision and appeals in conformity to a notice of the secretary, given in pursuance of .the direction of the mayor but by a board of revision and appeals, the notice of the time and place of whose sitting was n'ot given within the time required by said ordinances, nor by an officer having the requisite authority to do so. The case presented by the plaintiff’s petition is, that after the relator’s list had been delivered to, and accepted by the assessor, without any objection thereto being noted by the latter, or any report being made by him of any delinquency on part of relator in relation thereto, the board of councilmen, not sitting in pursuance of the notice required by the ordinances of the city, met and changed the relator’s list. This board was not, in a legal sense, a board of revision and review, and if it had been there was no appeal by which the relator’s list -was brought before it for revision. The question now raised is, was the change made by said board in the list of property given by the relator to the assessor of any validity? Laws for the assessment and collection of the revenue should be construed with
Applying the foregoing principles to the admitted facts of the present ease and it becomesplainthattheaction of the board of councilmen in changing the list of property given by relator to the assessor was an unauthorized and arbitrary exercise of power which can not he upheld. It follows that the said $45.56, the amount of the increase of the relator’s tax, resulting from the unwarranted change made in the list of his property, and for the payment of which the collector seized his property, was invalid. The facts stated in the petition clearly show that the tax for which the levy was made is void and that its payment ought not to be enforced by tbe seizure and sale of relator’s property. The relator paid that pari: of his tax which was extended against the property included by bim in his list, declining only to pay that part which was not so included, and no reason is seen why, under the present statute
We are therefore of the opinion that the demurrer was properly overruled and that the decree was for the right party and should be sustained, and it is accordingly so ordered.