State ex rel. Steel v. Phillips

Sherwood, J. Action to recover back taxes for the years 1888, 1889, and 1890. The defendant in his answer set up three defenses: The first count is a general denial. The second count is as follows: “And for further answer herein defendant says that he is not indebted to the plaintiff in any sum whatever, for the reason that he called upon the collector for the several years he is supposed to be charged with the delinquencies and paid all taxes that were charged against him, and took receipts therefor, and now pleads these facts as well as said payments in bar of any further tax, and again prays for judgment.” The third count charges that there never was any legal assessment of the property set out in plaintiff’s petition; that no legal tax was ever extended as required by law; and that there never was any settlement between the collector of the county and the county court at the time required by law, and that there never had been any settlement between the collector of the county and the county court showing the amount of the state revenue and state interest from taxes collected in the current tax book or the amount collected on delinquent legal list returned by the collector, nor had there ever been any certified settlement between the county court and the collector filed with the county clerk, nor any delinquent list as required by law. Upon trial had, the circuit court found that defendant was the owner of the lands described in plaintiff’s petition; that there were unpaid delinquent [264] taxes on the lands therein described, as well as interest thereon for the years heretofore mentioned, and rendered judgment accordingly against the said defendant for the sums ascertained to be due. The transcript records no motion to strike out the second count of defendant’s answer, and the success of such motion, and the recital in defendant’s motion for a new trial is no evidence of such statement, as has so often been decided by this court. The answer of defendant must therefore be treated as remaining intact. And if a replication to the answer were necessary, the cause being tried as if a reply was in, and since no motion was filed for judgment for want of a reply (Smith v. St. Joseph, 45 Mo. 449), this case falls within the principle announced in Henslee v. Cannefax, 49 Mo. 295, and other cases. The tax bill was prima facie evidence of the matters therein contained, and so the burden was cast on defendant to overthrow its statements of facts, and we are not of opinion after reading the evidence as contained in the transcript, that he succeeded in doing so. It seems that the back taxes for the years sued for were all consolidated into one book for the year 1890. By the express terms of the revenue law, mere informalities in making an assessment of property, or charges for taxes thereon, shall not be considered illegal, on account of any informality in making the assessment, or in the tax lists, or on account of the assessment not being made or completed in the time required by law. Sec. 7563, R. S. 1889. See, also, sec. 7584. Section 7702 declares that no informality in making the back tax books shall affect the validity of the same. And aside from the statutory declaration just quoted and cited, when an assessor makes out his [265] assessor’s books, jurisdiction attaches, and the rest of the proceedings are directory. Judge Cooley, treating of the subject of a taxpayer or rather tax-resister endeavoring to take advantage of informalities, etc., very pertinently and forcibly 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. * * *' ‘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.’ * * * 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.], pp. 283, 284, 285, and cases cited. [266] In the somewhat recent case of State ex rel. v. Bank, 120 Mo. 161, we examined this subject at considerable length, and do not care to go over the subject again. Finding no substantial error in the record, judgment affirmed. All concur.