State ex rel. Gracy v. Bank of Neosho, 120 Mo. 161

120 Mo. 161 | Mo. | 1894

Sherwood, J.

As already seen, the defendant bank is a private banking institution, and the defendants Jones and Corpeny are copartners in that business, and owners at all events of the property of the defendant bank. Since it is impossible to tell from this record what was the nature and kind of return H. F. Jones, as president of the bank, made to the assessor on behalf of that institution, it will be presumed that it was properly made; that the assessor properly made out his assessment on such return in conformity to law; that the present action of the collector is also based upon the proper tax bill and is directed against the proper party defendant, and that the trial court properly rendered judgment on the tax bill sued on. All these presumptions are constantly indulged and acted on by the courts in the daily routine of their duties. And it belongs to him who alleges error in the trial court in regard to these points, to prove it; this has not been done.

The defendant bank is a private one organized under provisions of sections 921 and 922, Revised Statutes, 1879; but not incorporated, nor does it appear that its capital stock wag divided into shares. This distinction between a private and a public incorporated bank is clearly drawn in section 6692, Revised Statutes, 1879, because in the first part of that section, persons owning shares of stock in banks incorporated under or by any law of the United States or of this state, are hot required to deliver to the assessor, a list thereof'; but the president of such corporation is required to deliver to the assessor such list and the names of the holders of the stock, etc. In the last part of that section, however, private bankers are only required to make return of all moneys or values of any description invested in or used in their business, which is to be “taxed as other personal property.” And this sort of return is just the kind of return it would seem from the general statement in the bill of exceptions, that H. E. Jones made to the assessor on behalf of the defendant bank. Every one, as well a private person as an official, is presumed to perform his engagements - and his duty, and this presumption will for that reason be indulged in regard to the return made by H. E. Jones to the assessor. Lenox v. Harrison, 88 Mo. loc. cit. 496, and. cases cited.

This presumption is in addition to the one before mentioned; that which, in the absence of countervailing circumstances, holds that courts of general jurisdiction act by right and not by wrong, and conform their acts and doings to well settled forms, precedents and methods of procedure.

Section 922, to which reference has been made, in mentioning the requirements for engaging in private banking, requires that a statement be made and verified before a notary public, setting forth, first, the names of all persons interested in the business and the amount of the capital stock invested, and, second, “the name in which the business is to be conducted.” The evident object of the latter clause, was to afford a name not only in which the business is to be conducted, but also one against which assessments could be made, and taxes collected. In the case at bar, unless we repudiate all familiar and reasonable presumptions, we must presume that the name of the party defendant to this action, “Bank of Neosho,” was the name selected by the parties in interest and under which the defendant bank was organized by virtue of the provisions of the sections aforesaid.

In New York, possessing no statute such as ours for the selection by a private banker of a name in which the banking business is to be conducted, it has been ruled that where a private banker did business under the general banking laws of the state in the name of “ The Pratt Bank” by which his business as a banker could be characterized and known, he could be assessed by that name, and the warrant for the collection of the tax thus assessed, could be levied on and collected from the money or property used in the business of such banker. Patchin v. Ritter, 27 Barb. 34; Angell & Ames on Corp. [11 Ed.] see. 439.

In another case in that state it is said that “when a farm is owned or possessed by a mercantile or other firm, the assessment to such firm would answer the same purpose as writing out the Christian and surname of each individual composing the firm,” and this, because “it designates the property to be taxed,” etc. Wheeler v. Anthony, 10 Wend. 346.

In Illinois, possessing a statute like ours in regard to informalities in assessments not invalidating them (secs. 6710, 6858, R. S. 1879) it was ruled that a tax was valid though assessed against a firm in'the name of C. M. Jacques & Co., instead of Jacques Bros. & Co., the proper name, where it appeared that tireassessees represented really the same persons. Lyle v. Jacques, 101 Ill. 644.

Analogous rulings may be found, in this state-where judgments entered merely in the firm name of plaintiffs have been held valid. Fowler v. Williams, 62 Mo. 403; Davis v. Kline, 76 Mo. 310.

In other jurisdictions, judgments against defendants by their firm name, have been declared sufficient. Smith v. Chenault, 48 Tex. 455; Goodgion v. Gilreath, 32 S. C. 388.

In this instance, when the defendant bank was sued, the individual defendants appeared on behalf of the bank in whose name they did business, and' filed an answer to plaintiff’s petition, denying generally the allegations of that petition, and then on their own part they answered, whereby they virtually admitted their ownership of the bank property, and claimed that there had been an over-valuation of it by the assessor. Taking then this virtual admission of the ownership of the bank and its property by the defendants, and presuming, as we must, that the name, “Bank of Neosho” was the name under which the bank was organized, and that it was thus the name selected by the parties interested in which the “business (of the bank) was to be conducted,” and presuming, as we must, that H. E. Jones acquitted himself of his statutory duty by properly making out his return in the name “Bank of Neosho,” the duty of the assessor to make out his assessment in the same name, becomes manifest, and this as appears by the record he did, and wa hold his action in this regard to be correct.

Indeed it is difficult to see in what 'other name the assessment could have been made out. "What was the form of the collector’s tax bill, we are not informed by this record, but we are bound to suppose on grounds of legal presumption already stated that it tallied with the assessment which is preserved in the record. And as for reasons already set forth, we are compelled, in the absence of anything to the contrary appearing, to assume that the action ' of the trial court on the facts before it, warranted its conclusion and judgment, that .judgment must be affirmed, unless upon considerations now to be stated:

a. The failure on the part of the assessor to return the real and personal property of the county in one book, but instead returning the two original books made by him to the county court, is answered by the case of Thomas v. Chapin, 116 Mo. 396, in which it is held that such failure does not render the tax invalid. Indeed, under the law then in force, that of 1883, it is provided that: “In all counties * * * the assessor shall be provided with two books, one to be called the ‘real estate book,’ and the other to be called the ‘personal assessment book.’ * * * The ‘personal •assessment book’ shall contain a list of the names of all persons liable to assessment, alphabetically arranged, with proper priority of vowels,” etc. Laws of 1883, p. 137. This law must be construed in connection with section 6718, Revised Statutes, 1879, and so far qualifies it as to have two books instead of one delivered to the assessor.

b. It is complained that the assessor failed to make out and return a copy- of his book of the personal property as required by section 6718, but that he returned only the original assessor’s book which was used for the equalization and extension of taxes by the county clerk. In relation to these matters it may be said that they are not jurisdictional facts; jurisdiction had already attached in the hands of the assessor when he made out his • assessment books, and therefore his •subsequent omission to make out a copy or copies of the same, etc., would not defeat the previously acquired jurisdiction, but such omission would be healed by the •curative powers of sections 6710 and 6858, supra; the rule being that where jurisdiction has attached in favor of the assessor, then the residue of the proceedings-may generally be regarded as directory and within the-domain of statutes which provide against mere irregularities and omissions. That is to say, that whatever the legislature could have originally dispensed with, it could provide that the omission of such matters should not be attended with invalidating consequences. This-has been-done in the curative acts aforesaid, which it must be observed are very comprehensive in their terms, and equivalent within certain bounds to making the law respecting assessments in a large sense directory y and this upon the principle that it is within the power of the legislature to declare in advance what things nonessential to the rights and protection of the citizen shall be regarded as immaterial to the validity of tax proceedings. Welty on Assessments, sees. 232, 236;. Cooley on Taxation [2 Ed.], 305, 306. And the curative law may be anticipatory; “it may be a genéral statute for future cases, which, while marking out a course for the officers to pursue, shall at the same time declare that irregularities shall not vitiate any proceedings that shall be had under the statute.” Cooley on Taxation [2 Ed.], 297, 308.

Touching this subject, to wit, “the construction of tax laws,” and when they are to be regarded mandatory and when merely directory, the eminent author just cited observes: “No one should be at liberty to-plant himself upon the nonfeasances or misfeasances of officers, under the revenue laws, which in no way concern himself, and make them the excuse for a failure on his part to perform his own duty. On the other hand he ought always to be at liberty to insist that directions which the law has given to its officers for his benefit shall be observed. Many eminent judges have endeavored to lay down a general rule on this subject, by which the difficulties in tax' cases may in general be solved. In one of the most recent cases in which this has been attempted, the general doctrine is stated as follows: ‘There are undoubtedly many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power, or render its exercise in disregard of the requisitions ineffectual. Such generally are regulations designed to secure order, system and •dispatch in proceedings, and by a disregard of which the rights of parties interested can not be injuriously •affected. Provisions of this character are not usually regarded as mandatory, unless accompanied by negative words, importing that the act required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed, or the acts done will be invalid. The power of the officer in all such cases is limited by the measure and conditions prescribed for its exercise.’

“The same rule in nearly the same terms has been laid down in other cases, and it seems a sound and just rule, and may reasonably be believed to be in accord with the legislative will in the eases to which it is applicable. All legislation must be supposed to take into account the possible, if not probable, mistakes and irregularities of officers in executing the provisions of the law, and it is hardly reasonable to infer an intent •on the part of a legislative body, that a failure of •administrative officers to comply with any provision made for the benefit of the state exclusively, or merely as a guide in orderly proceedings, should deprive the state of all benefit to be derived from a compliance with other provisions that embody the main purpose and object of the law.” Cooley on Taxation [2 Ed.], 283, 284, 285, and cases cited.

Third. Relative to that portion of the answer of the- individual defendants, which pleaded excessive assessment, it is sufficient, to say that, if such overvaluation did occur, an appeal should have been taken to the county board of equalization. R. S. 1879, sec. 6719; Meyer v. Rosenblatt, 78 Mo. 495; Potosi v. Casey, 27 Mo. 372, and other cases. “For a merely excessive or unequal assessment, where no principle of law is violated in making it, and the complaint is of an error of judgment only, the sole remedy is an application for an abatement, either to the assessors or to such statutory board as has been provided for hearing it. The courts either of common law or of equity are powerless to give relief against the erroneous judgments of assessing bodies, except as they may be specially empowered by law to do so. And this principle is applicable to statutory boards of equalization, which are only assessing boards with certain appellate powers, but whose action, if they keep within their jurisdiction, is conclusive except as otherwise provided by law. For a merely irregular assessment the statutory remedy is also the exclusive remedy. It is supposed to be adequate to all the requirements of justice, and it is the party’s own folly if he fails to avail himself of it.” Cooley on Taxation [2 Ed.], 748, 749, 750.

As no error is disclosed by the record, the judgment should be affirmed.

All concur.