State Ex Rel. Kersey v. Western Union Telegraph Co.

*216 JAMES T. BLAIR, P. J. This is a suit for taxes, and the petition is in'the form prescribed by statute. A general demurrer was overruled, and an answer was filed which raised constitutional questions with respect to some of the taxes levied. At the close of the evidence the court permitted respondent to amend the petition so as to bring the allegation with respect to appellant’s property in Pemiscot County into exact accord with the certificate of the assessing state board. Appellant requested a finding of facts, and one was made. It also asked instructions, which were refused. Judgment was given for most of the taxes sued for, and this appeal followed. The tax-bill, the railroad tax book, the orders of the county court levying /taxes, and the certificates of fifty-three school districts to the county clerk were all in evidence. A letter was put in evidence which purported to discuss, with appellant’s authority, liability for the taxes sued for. There was some oral testimony, but no question now raised depends upon this. The nature of the questions discussed by counsel does not require a further detail of the facts except as they appear in the subsequent paragraphs. I. The petition at first contained an allegation of the value of appellant’s property in Pemiscot County which was, in fact, the value of all its Missouri property. At the close of respondent’s evidence the court permitted an amendment which reduced these alleged values to the relatively insignificant sum which represented the value assessed by the state board on appellant’s Pemiscot County property. The objection was that it came too late. Appellant was asked if it desired a continuance at the county’s cost and announced it did not ask that. There was no error. *217 *216 II. It is contended there was no valid levy. It is argued the levy made was void because neither the tax-bill nor the railroad tax book described appellant’s prop *217 erty in Pemiscot County. It is not denied that the assessment made by state authorities (Secs. 13056> 13001 et seT> 12847, par. 6, R. S. 1919) included a correct description of the property of appellant subject to taxation in Pemiscot County, nor that 'the value assessed was duly certified as required (Secs. 13026, 12847, R. S. 1919), nor that this certificate accurately. described the assessed property. Section 13032, Revised Statutes 1919, which provides that the county clerk shall make out the railroad tax book, does not require him to enter in it a description of the railroad, telegraph and telephone property in his county which is assessable by the state board. That description appears in the record and certificate of the assessing board. The section, in so far as it concerns the assessment made by the state board, requires merely that the clerk shall place in the railroad tax book, “first, the total valuation of the roadbed and rolling stock of each railroad company, as equalized and apportioned to such county by the state board,” etc. In this case (Sec. 13056, R. S. 1919) this requirement calls for the “total valuation” of miles of wire, etc. When the Legislature desired a description of property in the railroad tax book it expressly provided for it in the same section with respect to certain railroad property which is assessed locally. The fact that some one has printed u form of railroad tax book which calls for more (however pertinent it may seem) than the statute requires does not amend the section. The evidence tends to show such descriptions are not put in the books further than required. Nor does the provision (Sec. 13042, R. S. 1919) which requires the clerk, after judgment for taxes, to describe in his fieri facias “the property against which such judgment is rendered” support this argument of appellant. What a fieri facias in a tax suit is specially required to contain is not relevant to the present question. The fact that the valuation appeared in the wrong column of the railroad tax book is not a fatal defect. The whole entry shows clearly that the value given is the value assessed by the state board. The only other *218 assessment that could have appeared would have been - one by local assessors on locally assessable property. On it face it appears the value set down is not of that kind. The descriptions of local properties, essential to such assessments, do not appear. There are apportionments of local values to several towns and villages for the purpose of forming a basis for imposing municipal taxes, and the total of these taxes is separately stated. The statutory form of petition includes a call for description of the properties assessed, in case of suit, but this, if a requirement at all, is one as to pleading and not as to the form of the tax book, which is provided in a previous section, as pointed out. It was the question of pleading which was discussed in State ex rel. v. Railway, 101 Mo. l. c. 144. Appellant cites other cases which are decided under the provisions of the general revenue law respecting the taxation of property not included in the articles which govern in this case. [State ex rel. v. Burrough, 174 Mo. 700; State ex rel. v. Railroad, 114 Mo. 1; State ex rel. v. Linney, 192 Mo. l. c. 52, 53; State ex rel. v. Williams, 216 S. W. 535.] The question in State ex rel. v. Railroad, 135 Mo. l. c. 628, was different. In that case the county clerk, without levy or authority, had attempted to extend certain school taxes for the Kansas City district. The same ruling is made in St. L. & S. F. Ry. v. Apperson, 97 Mo. l. c. 305 et seq. The record in this case shows a levy by the county court on railroad, telegraph and telephone property, and the rates fixed hy it are tíiose extended on the tax book. III. The court levied forty cents per $100 for general county purposes; twenty cents “road tax;” twenty-five cents special road tax under the amendment of 1908, and a further tax for interest on bonds duly voted. The levy was attacked in the answer on constitutional grounds. The general levy, the special road tax levy under the 1908 amendment, and the bond interest levy are valid. The “road tax” levy of twenty cents is under a special statutory provi *219 sion. It carries the total ten cents beyond the constitutional limit. For that reason appellant contends this excess of ten cents on the $100 is void. It is so, and is not recoverable. IV. Appellant urges that the forty-cent levy for Little Prairie Special Road District is void because it was made to apply to “all of defendant’s property distributable to Pemiscot Countyv . . . -j^o^gk iesg than half of the distributable property is located in Little Prairie Special Road District.” The evidence does not show the boundaries of the special district and does not tend to show whethei all or “less than half” of the property in question is situated in it. So far as concerns the question raised, there is no record foundation for it. The $4.85 sued for and recovered in behalf of the city of Caruthersville cannot be allowed since it does not appear any levy was made for the benefit of that municipality. V. The 'school tax rate was fixed by the county court at 146 cents per $100 of valuation shown on the railroad tax book, in attempted compliance with Section 13031, Revised Statutes 1919. Among the fifty-three school districts which filed certificates with the county clerk there appear several levies which are indisputably m excess .01 tiie largest rates permitted by the Constitution. For instance, in District No. 5 the record shows there had been an attempt to vote a tax of 120 cents per $100 valuation for ordinary school purposes. The board attempted to levy the full amount of this, as well as a much larger rate for building fund, sinking fund and payment of accrued interest. Counsel contends the rate first mentioned was twenty cents too high, and in this he is correct. [Harrington v. Hopkins, 288 Mo. 1.] The record shows like excess levies in several other districts. It is contended there are still other districts in the same condition, but the summaries are not full enough to show the amounts *220 of the excesses in these in such way that the lawful rate can be separated from the unlawful. Even if it be held that the circuit court could reduce the levy so as to exclude parts of rates in excess of constitutional limits (State ex rel. v. Railroad, 149 Mo. l. c. 644, 645), yet this court cannot substitute a new average rate because the record does not give all the necessary information. Enough appears to show the average rate used is excessive because levies exceeding constitutional limitations went into it. There is a remedy provided by the statute, but it is not available in this suit to sustain the present levy. The judgment as to school taxes cannot be upheld. VI. The matter of instructions and findings of fact are not! of the greatest consequence since practically all the evidence determinative of the case is documentary. In addition, the findings of fact, when requested and made, rendered requests for instructions unimportant. [Kostuba v. Miller, 137 Mo. l. c. 173.] Counsel say the findings do not cover all the facts, but counsel do not call attention to any specific fact omitted, and the record does nqt show any objection made at the time, on that ground, in the trial court. VII. The several orders which, taken together, showed the entire levy in Pemiscot County, were admitted in evidence. The admission of those which did 110^ W*®1, specifically to property on the railroad tax book was not prejudicial. The order which made the levy on appellant’s property must stand or fall, as a levy, on its own contents, as a matter of law, and is neither strengthened nor weakened by orders about other matters. If that levy is good even a jury in the cause ought to have been so instructed, and vice versa. The tax book and tax-bill were properly admitted. Their respective effects as evidence is another matter. The letter of Mr. Whitney was not admissible in the state of the record at the time. No showing was made that he was *221 acting for the appellant. The letter may become admissible with respect to the express admissions of liability it contains, upon another trial. With respect to that part of it which seems to relate to an effort to compromise matters concerning which no admission of liability is made, there seems to be no reason to donbt that the nsnal rule would apply. The judgment -is reversed and the cause remanded for proceedings not out of harmony with this opinion. All concur.