School District No. 1, Township No. 4, Range No. 16 v. Wickersham

34 Mo. App. 337, 1889 Mo. App. LEXIS 88

• Court: Missouri Court of Appeals
• Decided: February 19, 1889
• Status: Published

Opinion

Thompson, J.

delivered the opinion of the court.

This is a proceeding by mandamus to compel the defendant, who is county clerk of Laclede county, to enter certain personal property, consisting of .mules, cattle, wagons and agricultural implements situated on a farm in the plaintiff school district belonging to C. W. Rubey and Josiah Ivey, upon the school-tax book of the county for the year 1888, as taxable within the plaintiff school district. The question for decision arises upon a demurrer to the petition. The petition shows that Rubey and Ivey own a farm in the plaintiff school district upon which personal property of the character above described, to a considerable value, is permanently kept for the purpose of carrying on the farm, but that Rubey and Ivey resided in an adjoining school district called Lebanon school district. The petition proceeds upon the conception that, under the provisions of section 7125, Revised Statutes, as amended by the act ■ of March 18, 1885, ( Laws of 1885, .246, )• personal property is assessable to taxation for school purposes within the particular school district in which it is situated, and that it is the duty of the county clerk so to assess it for taxation.

Opposed to this conception, one of the arguments put forward on behalf of the defendant is, that the general rule is that the situs of personal property for the purposes of taxation is the domicile of the owner, which rule is confirmed as the general theory of taxation in this state by section 6662, Revised Statutes, which provides that “all personal property of whatsoever nature and character, situated in a county other than the one in which the owner resides shall be assessed in the county where the owner resides ; and the-owner, in listing it, shall specifically point out in what-county it is situated.’’ Whether it be a general rule-that tangible personal property (excluding choses in actions, such as bank shares, bills, notes and other evidences of debt) is taxable at the domicile of the owner or at the place where it is actually situated, is a question which has been answered both ways by decisions in this state and elsewhere, and which is involved in so much, doubt and contradi ction that it may be questioned whether a general rule on the subject can be safely stated. See Ogden v. City of St. Joseph, 90 Mo. 529; Valle v. Ziegler, 84 Mo. 218; Railroad v. Board of Equalization, 64 Mo. 306; State v. County Court, 47 Mo. 594; St. Louis v. Ferry Co., 40 Mo. 580; Stephens v. Mayor of Boonville, 34 Mo. 323; Corn v. City of Cameron, 19 Mo. App. 573; State ex rel. v. Rogers, 79 Mo. 283; City of New Albany v. Meekin, 56 Am. Dec. 522, and the learned note to the same case, Ib. 523-537; Fuller v. Paige, 26 Ill. 358; S. C. 79 Am. Dec. 379.

But it is immaterial to consider this question, because it does not arise upon this record. No statute is pointed out, and none is believed to exist, which confers upon the county clerk power to assess property for school or for any other taxes. He is not the tax assessor of the county; but when the assessment of. property for taxes is made by the tax assessor and returned to his office and equalized by the county board of equalization, then the statute confers upon him the function of extending or apportioning the amount of revenue to be raised for school purposes for each district, upon the property so assessed as being within each particular school district. This duty is enjoined by the statute in the following language : “On receipt of the estimates of the various districts, the county clerk shall proceed to assess the amount so r eturned on all taxable property, real and personal, in sai d districts, as shown by the last annual assessment f or state and county purposes, including all statements of merchants in each district, of the amount of goods, wares and merchandise owned by them and taxable for state and county purposes.” Revised Statutes, sec. 7125, as amended by the act of March 18, 1885, (Laws of 1885, 246.) Although the statute prescribes that the clerk shall “proceed to assess the amount so returned” etc., yet the word “assess” is here obviously used in the sense of extend, compute or apportion; and the statute itself, in its proviso, uses the word “extended.” The duty of the county clerk under this statute is a mere duty of computation, and he is required by the terms of the statute to base his computation upon the property, real and personal, within the various school districts of the county, “as shown by the last annual assessment for state and county purposes”; in other words, he can only know what persons within each school district are assessable for the school purposes of that district by the last annual assessment made by the county assessor. He can have no cognizance of the situs of any property for taxation, except as shown by this assessment. It is nowhere alleged in the petition that the defendant is proceeding to extend the levy made for the plaintiff school district upon personal property situated within the district, otherwise than as shown by the last annual assessment. We may stop with this statement; for it is a well-settled principle that the writ of mandamus will not lie to enforce a mi nisterial duty, unless that duty is clearly and unmistakably enjoined by law. If the county assessor, in listing personal property for taxation for the preceding year, assessed the personal property described in the petition as taxable in Lebanon school district, which was the district of the domicile of the owners, instead of assessing it as taxable in the plaintiff school district, it is a matter with which the county clerk has nothing to do. His duty is merely the mathematical duty of extending the levy made by the school officers of the plaintiff district upon the property which has been returned to his office by the county assessor as taxable within that district.

The action proceeds upon a singular misconception of the functions of the county clerk with reference to the subject of taxation. The circuit court rendered a judgment for the defendant upon the demurrer, and this judgment is affirmed.

All the judges concur.