Opinion
October 2, 1928.
1. TAXATION: Equalization: Assessment of Lands: At True Value: Allegation in Petition. An allegation in the petition of the State Board of Equalization for a writ of mandamus that the assessor's books contained the "land list" required by Section 12790, which said land list contained all lands in the county by the assessor "assessed according to its true value in money," is not an admission that the county assessor's assessment was "the true value in money." The allegation that he assessed the lands "according to its true value in money" adds nothing to the general statement that he assessed it according to that section. There is no such thing as the true value of land in money; the valuation placed upon it by the assessor is only his estimate of its value, and that estimate is not conclusive, but is subject to equalization and adjustment by the county board, and the presumption that his valuation is the true value attaches just as well to the value placed upon the lands by the State Board of Equalization.
2. ____: Equalization by State Board: Reduction by County Board. A county board of equalization has no authority to reduce the valuation upon lands in the county fixed by the State Board of Equalization, and an order by it which attempts to reduce such valuation is a nullity.
3. ____: County Clerk: Duty to Extend Increases Made by State Board. It is the duty of the Clerk of the County Court, where the County Board of Equalization had adjusted and equalized the assessments made by the County Assessor, to extend on the tax books the increase in the valuations of properties in the county by a definite percentage thereafter made by the State Board of Equalization. He is not required to await an order of the County Board to make such extensions or increases, but may be compelled by mandamus to make them; nor should the writ be directed to the County Board to order that the extensions be made by the County Clerk.
Corpus Juris-Cyc. References: Mandamus, 38 C.J., Section 415, p. 773, n. 14. Taxation, 37 Cyc., p. 1009, n. 28; p. 1069, n. 20; p. 1074, n. 51; p. 1078, n. 89.
PEREMPTORY WRIT AWARDED.
North T. Gentry, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for relators.
(1) The County Board is not called upon to make a special order indicating either its acceptance or confirmation of, or assent to, the action of the State Board, and being without power to alter or change the same in any way no reason for such order can exist. It must merely conform its action to such order. (2) The power to execute an order carries with it the power to enforce it. The failure of the County Board in its duty does not relieve respondent of his duties in the premises; neither is respondent bound by an order of the County Board which it had no power to make. The duties, the performance of which it sought, are ministerial. Mercantile Trust Co. v. Schramm, 269 Mo. 489. Being ministerial duties which respondent has refused to perform, mandamus is the proper remedy to compel performance.
Roland F. O'Bryen and Harry J. Libby for respondent.
(1) The writ of mandamus will be denied unless the relators show (a) a clear, unequivocal, specific and positive legal right to have performed the thing or action demanded, and (b) that it is the clear legal duty of the party sought to be coerced, to do the thing he is called on to do. State ex rel. Gehner v. Thompson, 293 S.W. 398; State ex rel. Dolan v. Dickey, 280 Mo. 536; State ex rel. Kern v. Stone, 269 Mo. 342; State ex inf. Barker v. Gas Co., 254 Mo. 532; State ex rel. Porter v. Hudson, 226 Mo. 239. (2) In mandamus parties are conclusively bound by admission in their pleadings, and by filing a motion for judgment on the pleadings the relators admit all well-pleaded facts in the return. State ex rel. Tompkins v. Shipman, 290 Mo. 65. (3) Relators by their petition admit that there is no difference of opinion between the assessor and the State Board as to the true value of the lands. The assessor valued said lands at $12,679,945, and relators in their petition frankly conceded and allege therein that the assessor did in fact assess said lands at their true value in money, and by so doing have entirely eliminated from the case any controversial opinion as to values, and the case stands here for determination on the law applicable to the admitted facts and conceded values. (4) The State Board of Equalization, has no legal right, power or authority to value farm lands at any per cent in excess of its admittedly true value in money, or by any order or judgment to impose upon said lands an increase in valuation in excess of their actual value. The attempt by the State Board to increase the value of Shelby County farm lands ten per cent in excess of their admitted true value in money is violative of Secs. 3 and 4, Art. 10, Constitution of Missouri, of Sec. 1, Art. 14, Constitution of United States, and of Sec. 12855, R.S. 1919. State ex rel. Tompkins v. Shipman, 290 Mo. 65; Boonville Nat. Bank v. Schlotzhauer, 298 S.W. 732. (5) The constitutional requirement as to uniformity in taxation applies to the mode of valuation, as well as to the rate of levy, and the Constitution may be violated in a lack of just proportions in which the property is assessed quite as much as in the rate or percentage at which the tax is actually laid on the assessed value. Railroad Tel. Cos. v. Board of Equalizers, 85 F. 302; First Nat. Bank v. Christensen, 39 Utah, 568; Spokane Ry. Co. v. Spokane County, 82 Wn. 24; White River Lumber Co. v. Elliott, 226 S.W. 164; Union Pac. Ry. Co. v. Council Bluffs, 175 N.W. 7; Eminence Dist. Co. v. Henry County Board, 178 Ky, 811; Weyerhauser Timber Co. v. Pierce County, 97 Wn. 534; Drew County Timber Co. v. Board of Equalization, 187 S.W. 942. (6) Where the State Board of Equalization increases an assessment, without jurisdiction on its part to do so, its acts, proceedings and order in that behalf are void, and such illegal increase may be interposed by a taxpayer as a good defense pro tanto to the collection of the tax. State ex rel. Wyatt v. Vaile, 120 Mo. 47. (7) The county clerk is a mere ministerial officer. Nowhere in the Constitution or laws is he vested with any judicial power to equalize either assessment or valuation. He is a mere clerical officer, charged with extending the tax on the tax books of the county. The duties devolved on him by Section 12826, to adjust the tax books according to the report of the State Board, is conditional, not absolute. The authority is special, not general. His authority to so adjust is strictly limited to the single instance of the report from the State Board not being received during the session of the County Board. It is only in the emergency created by a belated report from the State Board, arrived after adjournment of the County Board, that he has any power or authority to act. He acts then in an emergency to prevent a failure of taxation. But he acts because there is an express statute, authorizing him to act, absent which, there would be no authority and no justification for his acts. When the report from the State Board did arrive during session of the County Board, and was by the clerk laid before them, and was, in fact, acted upon by them, although in disregard of the valuation fixed by the State Board, the county clerk had, under the above section, no authority whatever to act and adjust the tax books according to the valuation fixed by the State Board. To increase the assessor's valuation ten per cent, is to ignore entirely, and thus totally defeat the equitable equalization as between the tracts.
Relators pray this court to grant a writ of mandamus commanding the Clerk of the County Court of Shelby County to extend on the assessor's books of that county the aggregate valuation of lands of said county as equalized and assessed by the State Board of Equalization.
To the alternative writ respondent filed his return, and thereupon the relators filed a motion for judgment on the pleadings. The facts are as follows:
Early in January, 1928, the Assessor of Shelby County returned to the county court his assessor's book, duly verified, fixing the aggregate value of such lands at $12,697,945.
Respondent, County Clerk of Shelby County, February 18, 1928, certified an abstract of the lands and their valuations to the State Board of Equalization.
The State Board of Equalization, March 28, 1928, increased by ten per cent the aggregate valuation of the said lands, making the valuation $13,967,739.
The County Board of Equalization, April 20, 1928, made the following order:
"It is the order of the County Board of Equalization, after being presented by the secretary of the board with the notice of ten per cent increase in valuation on farm lands as required by the State Board of Equalization and after consideration of same it was agreed by the County Board of Equalization that they could not in their opinion increase farm lands to the valuation set by the state boards, and refused to make said increase in valuation of farm lands, and after hearing all complaints and adjusting the assessor's books as to comparative values, the County Board of Equalization adjourned sine die.
"L.C. BETHARDS, "Secretary of Board Equalization."
It is alleged in the return that the County Board of Equalization of Shelby County at that time equalized the valuations of the tracts in Shelby County so that the aggregate value was $12,672,565, — slightly larger than the original valuation of the assessor. The return then admits that respondent has failed and refused and still fails and refuses to extend and compute the taxes levied against the farm lands of Shelby County upon the valuations fixed by the State Board of Equalization, and has extended them upon valuations fixed by the County Board of Equalization.
I. It is first contended by the respondent that the State Board of Equalization had no right or power to increase the Value in valuations of the land in Shelby County ten per cent, Money: "in excess of their admitted true value in money." Admission. This "admitted true value in money" is taken from the petition of relators where it is alleged that the Assessor of Shelby County returned to the county court his assessor's books, "which assessment books contained, among other things, `the land list' required by Section 12790. Laws 1925, page 367, which `land list' contained all lands of said county by him assessed according to its true value in money at the time of the assessment, as provided by Section 12802, Revised Statutes 1919."
The petition nowhere states that the valuation placed upon the land by the State Board was the true value; therefore, it is argued that this allegation of the petition is conclusive that the valuations placed upon the land by the assessor was the true value in money, and the action of the State Board in raising those values ten per cent was contrary to certain sections of the Constitution.
Section 12802, Revised Statutes 1919, provides that the assessor shall assess property on the assessor's book "at its true value in money at the time of the assessment," with the tracts arranged as provided in Section 12790. Under Section 12810, it is the duty of the county clerk to make out an abstract of the assessment book and certify the same to the State Auditor. And under Section 12855, the State Auditor must lay such abstracts before the State Board of Equalization, whose duty it is to equalize such property among the several counties, with authority to add to the valuation of each class of property, real or personal, in each county, or deduct from the valuation of each class of property.
There is no such thing as an absolute true value of land. The "values" mentioned in the statutes are the valuations of the officials whose duty it is to make them. Land is not like commodities which have a fixed market price at a given period. Its value is determined always by the estimate of the party who values it. The requirement of Section 12802, that the assessor assess the property at its true value in money, means nothing more than that such true value is his estimate; his valuation. The law contemplates that, in accordance with that section, he does assess it at its true value as he judges it. [State ex rel. v. Western Union Tel. Co., 165 Mo. l.c. 516.] The allegation of the petition that he assessed it at its true value adds nothing to the general statement that he assessed it according to that section. To say that he assessed it at a certain value means that such is the true value just as clearly as if the words "at its true value in money" were added to the statement. According to the argument of respondent, such valuation is absolute and could never be questioned by any Board of Equalization. Yet the statute provides that the County Board of Equalization may equalize such valuations, and that the State Board of Equalization, under Section 12855, may add to the valuation of each class. The presumption that such added valuation is the true value attaches just as well to the action of the State Board of Equalization and County Board of Equalization as it does to the valuation of the assessor. The allegation of the petition as to the true value in money is merely an allegation that the assessor performed his duty as required by Section 12802, and nothing more. It is not conclusive on either the County Board nor on the State Board.
The respondent refers to Boonville National Bank v. Schlotzhauer, 298 S.W. 732. In that case it was the discrimination of the assessor himself that was under consideration. He had assessed banks at a valuation different from that placed upon other property in the county. Having ascertained the true value he assessed banks higher in proportion than he did other property.
II. After the State Board of Equalization had increased the valuations of lands in the county, the County Board of Equalization then took a hand, as shown in the order quoted above, and in effect sought to annul the action of the Reduction State Board of Equalization. That is directly in the by County face of the proviso of Section 12821, defining the Board. powers of the County Board of Equalization, as follows:
" Provided, that said board shall not reduce the value of real or personal property of the county below the value thereof as fixed by the said State Board of Equalization."
That section means, if anything, that the State Board of Equalization fixes values as well as the assessor or the County Board. Therefore the County Board of Equalization of Shelby County had no authority to reduce the valuation fixed by the State Board. When it attempted to equalize the values in accordance with the prior valuations fixed by the assessor, which valuations had been annulled by the order of the State Board of Equalization, the proceeding was a nullity. The entire proceeding of the County Board in the matter was of no effect. [Trust Company v. Schramm, 269 Mo. 489.]
III. It is further claimed by respondent that the State Auditor and the State Board of Equalization have no authority to compel the Clerk of the County Court of Shelby County to perform the ministerial act demanded. It is argued that only the county court has authority to compel the action of its clerk and that the remedy, if there is one, is first to compel the County Board of Equalization of Shelby County to adjust its values in accordance with the aggregate valuation fixed by the State Board.
The regular course is as follows: After fixing the valuation under Section 12802, the assessor makes an abstract of his footings and forwards the same to the State Auditor. [Sec. 12810, R.S. 1919.] The clerk is liable to a penalty if he fails to do that. And when erroneous assessments are corrected by the county court for persons who make complaints (Sec. 12817), the clerk shall correct the tracts on the books under orders made by the county court (Sec. 12818).
The State Auditor, under Section 12855, must lay before the State Board of Equalization the abstracts of all the taxable property of the State returned to him by the respective county clerks. The State Board then equalizes the valuations of property between the several counties. Under Section 12857, when the State Board of Equalization shall have completed its labors, it must transmit to each county clerk the per cent added to or deducted from the valuation of the property of his county. Then the clerk shall furnish one copy thereof to the assessor, and one copy shall be laid before the annual County Board of Equalization. In this case the copy laid before the County Board of Equalization was the one upon which that board acted without authority, as noted above.
In this emergency it is contended by respondent that the Clerk of the County Court had no duty to perform unless ordered by the county board. He cites Section 12826, Revised Statutes 1919, which provides that "in case the report of the State Board of Equalization be not received at or during the session of the county board, then it shall be the duty of the county clerk to adjust the tax books according to such report when received."
Thus it was argued that the duty of the county clerk with respect to the report of the state board and the carrying out of the purpose of that report is limited to the single instance in which the report is not received during the session of the county board. The record here shows that the county board was in session at the time.
That section, by that provision, does not negative any duty of the county clerk. Whatever its purpose, by its terms it is not exclusive. If there are other sections which require the clerk to perform the duty required here, then such performance may be compelled.
The County Board of Equalization, under Article III, Chapter 119, Section 12821, is authorized to hear complaints and equalize valuations made by the assessor. It is nowhere authorized to increase or reduce the aggregate valuation fixed by the State Board of Equalization. It has no power to assess. [State ex rel. v. Baker, 170 Mo. l.c. 391.] Its duty is to equalize among the separate tracts the valuations fixed by the assessor. If the County Board of Equalization refuses to perform its duty, as it did in this case, then the statutes clearly contemplate that the county clerk shall adjust the valuation in accordance with the orders of the State Board. For instance, in Section 12815 it is said:
"The state, county and all other taxes shall be computed and extended by the county clerk in separate columns against the valuation produced by the equalization of the several classes of property by the State Board of Equalization."
That is not limited to a case where the county board had adjusted and equalized the valuation of the separate tracts in accordance with the aggregate valuation fixed by the State Board. It will apply just as well to a case where the County Board has not acted at all, as in this case.
Section 12823 provides:
"The county clerk shall keep a correct record of the proceedings and orders of the board, and the assessors shall correct all erroneous assessments, and the clerk shall adjust the tax book according to the orders of the said board and the orders of the State Board of Equalization."
Where the County Board has made no orders, or where, as in this case, its orders are a nullity, then the county clerk must adjust them according to the orders of the State Board. Such orders do not have to go through the intermediary authority of the County Board. Section 12857 closes with this:
"And it shall be the duty of the State Auditor to require the clerks and the several county courts of this State to keep up the aggregate valuation of real and personal property in their respective counties, for those years in which no State Board of Equalization is held, to the aggregate amount fixed by the last State Board of Equalization."
Here is direct authority of the State Auditor to require the county clerk to keep up values in accordance with the valuations fixed by the State Board. That is, he acts directly with direct authority over the county clerk in this respect, "for those years in which no State Board of Equalization is held." Can it be implied that the Auditor has no such authority over the clerk as to the board's valuations in those years when the State Board of Equalization is held? Sections 12815 and 12823 are to the contrary.
Considering the entire purpose of the tax law with the limited powers of a County Board of Equalization and the extensive powers of the State Board of equalizing aggregate values, there can be no doubt that it is contemplated that the clerk of the county court has a duty to perform the orders of the State Board of Equalization — direct and positive — and it may compel him to perform such orders if necessity requires.
Obviously, if the State Board has authority to promulgate orders which the county clerk must obey, under Sections 12815 and 12823, it can compel such obedience.
For the reasons mentioned the peremptory writ is awarded. All concur, except Gentry, J., not sitting.