34 Mo. App. 89 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This action was prosecuted to enjoin a tax collector from collecting the taxes assessed against certain lands owned by the several plaintiffs. At the final hearing
The petition sets up, among other things which need not be recited, that the county board of equalization, at its regular meeting on the first Monday of April, 1887, without any legal authority whatever and without any notice to these plaintiffs, raised the valuation of the lands of these plaintiffs, in addition to the assessment of 1886, as hereafter shown. That after such increase of valuation had been made, the said board of equalization adjourned without giving these plaintiffs any notice . of such increase of valuations, and without appointing a time or place or giving notice of time or place for hearing reasons, if any, why such increase in the assessed valuation of said lands should not be made. That said board of equalization assumed to act without being legally ■ organized in this, that the record of said board fails to show that said board was ever sworn by the clerk of said county “ fairly and impartially to equalize the valuation of all the taxable property in the county.” That the record, of said board of equalization further shows that said board of equalization was illegally organized.in this, that, in addition to its being composed of the .county clerk, surveyor, assessor and the judges of the county court, as prescribed by the statute, the sheriff of Oregon county was made a member of said board. That, the said board of equalization combined and conspiz’ed to do an illegal act in this, that they agreed and conspired to increase the lands of non-resident owners to a greater value than other lands in said county of the same kind and value owned by residents of said county. That the acts of said board were unconstitutional in this, that said board discriminated in the assessmezzt and valuation of lands of the sa me kind and value between citizens of this state and citizens of a foreign state. That the reco rds of said board of equalization
The answer admits that defendant is the collector of revenue for the county of Oregon, and that the plaintiffs have tendered the taxes as they allege, and that he is about to collect' the whole of such taxes, but denies each and every other allegation in the petition. The remaining portion of the answer is in the nature of a demurrer, and we suppose it was drawn under the conception that, under section 3517, Revised Statutes, a party may demur and answer at the same time and by the same pleading, which we do not understand to be the practice. He may demur to one part of the petition and answer to another; but the object of demurrer is essentially different from that of an answer, and he cannot do both at the same time and in the same pleading. That portion of the answer which is in the -nature of a demurrer states that the facts stated in the petition
A misjoinder of parties can only be taken advantage of by demurrer where, as here, the misjoinder appears on the face of the petition. R. S., sec. 3515 ; Kellogg v. Malin, 62 Mo. 429; Edmondson v. Phillips, 73 Mo. 60. Where matter of demurrer, for causes apparent on the face of the petition, is blended with matter plead-able by way of answer, as in this case, the objection for misjoinder of parties plaintiff and causes of action is not properly raised in so much of the defensive pleading as consists of matter of demurrer, and is therefore waived. Although there is a clear misjoinder of parties plaintiff and causes of action, apparent on the face of the petition, we do not see that, in the state of the record, the circuit court can be put in the wrong on this ground.
This matter, however, becomes immaterial; since the evidence adduced at the hearing entirely overthrew the allegations of the petition. So much of the record of the county court of Oregon county as exhibited the manner in which the county board of equalization was organized at its meeting on the first Monday of April, 1887, was put in evidence by the plaintiffs, and the plaintiffs thereupon rested. The entries thus put in evidence, excluding the certificates of the clerk, were as follows:
“ County of Oregon,
s<?
“In the County Court of Oregon County, at the April term, 1887, held on the 4th day of April, 1887, among others were the following proceedings: The County Board of Equalization met in pursuance to law. Present: A. P. Couch, Presiding Judge of the County Court ; John Franks and John Harder, Associate Justices of the County Court; J. A. Jones, Assessor ; Wade Heiskell, Surveyor; J. B. Johnson, County Clerk, and J. J. Pierce, Sheriff: where the following proceedings were had, viz.”
“ State of Missouri,
“ County of Oregon,
SS-
“In the County Court of Oregon County, at the April term, 1887, held on the 25th day of April, 1887, among others were the following proceedings: Monday, April 25, 1887. The Board of Appeals m§t pursuant to adjournment. Present: A. P. Couch, Presiding Judge; John Franks and John Harder, Associate Judges ; James A. Jones, Assessor ; J. B. Johnson, Clerk; J. J. Pierce, Sheriff: when the following proceedings were had, viz.”
It is perceived that these are the opening recitals of the records of the two successive meetings required to be held by the county board of equalization at a stated period in each year. The first meeting is required to be held on the first Monday in April of each year ( 2 R. S., ¡sec. 6671); at which meeting it is the duty of the board to equalize the valuation and assessment of all taxable property in the county. 2 R. S., sec. 6672. The second meeting of the same board takes place on the fourth Monday of April of the same year, at which it is the duty of the board, in cases where it has at its previous meeting increased the valuation of property, “to hear reasons, if any be given, why such increase should not toe made.” 2 R. S., sec. 6673. Thus, at the first meeting above recited, the board of equalization of Oregon
The first objection to the validity of the board of equalization of Oregon county, as its constitution is thus recited, is, that the sheriff appears to have been present as a member of the board. We are not prepared to say that this objection would be well taken if it rests upon the record alone; for non constat but that the sheriff may have been present attending ex officio, just as he attends upon the circuit court and upon the county court during their ordinary sessions ; and such is shown by uncontradicted oral testimony to have been’ the fact. If it is answered that this question must be tried by the record, the reply is that this is a proceeding in equity, and is not a proceeding by certiorari to the county court; and that when a person comes into a court of equity and asks for extraordinary relief by injunction, the court proceeds according to the real truth of the case. This objection is therefore deprived ■ of any merit which can be regarded in this proceeding.
The second objection, that the board were not sworn, becomes equally untenable for the purposes of this proceeding, in view of the fact that the uncontradicted evidence of the clerk is to the effect that he orally administered to the members of the board the statutory oath.
The only other substantial ground upon which the plaintiffs rest their claim for an injunction is that the county court proceeded to raise the value of the assessment of their respective lands, which had been made by the assessor on the previous year, without giving them notice -that the valuation was so raised. It is true that the statute (2 R. S., sec. 6673) provides that “ after the board shall have raised the valuation of such real estate, it shall give public notice of the fact, specifying
We of course concede that some form of notice is
We rest our decision upon the failure of the plaintiffs to establish by evidence the grounds on which they have asked for this injunction. We do not wish to be understood as intimating an opinion, one way or the other, whether those grounds, if established by the evidence, would have been sufficient.
The decree making the injunction perpetual is not supportable upon any theory which we can understand. It is accordingly reversed, and the cause is remanded with directions to the circuit court to enter a judgment 'in favor of the defendant, dissolving the injunction.