BURGESS, J.
This is a proceeding by certiorari sued out in the circuit court of Butler county, and directed to the board of equalization of that county, for the purpose of quashing the record of said board in which there was at their regular meeting,in April, 1899, added to the assessment list of the. personal property of [388]*388relators for that'year other personal property of the value of $11,682. Respondents made return to the writ, and at the May term, 1899, of said circuit court, upon a hearing, the record of the proceedings of said hoard was quashed and annulled. Defendants appealed in due course after the usual motions and exceptions.
The record recites that the court quashed the proceedings of the hoard of equalization for the reason “that,;as appears from facts appearing on the face of the record, and return of respondents herein, the said board of equalization was wholly without jurisdiction to make any order adding the sum of $11,682, or any other sum, to the assessment list of those relators, as it has assumed to do, and that the said pretended order *of said hoard of equalization adding the said sum of $11,682 to the said assessment list of these relators, is' wholly inoperative and void.”
The first question presented for our consideration is whether the board of equalization had jurisdiction of the subject-matter. By section 7517, Revised Statutes of 1889, it is provided that: “There shall be in each county in this State, a county board of equalization, which board shall consist of the county clerk, who shall be secretary of the same but have no vote, the county surveyor, the judges of the county court, and the county assessor, which board shall meet at the office of the county clerk on the first Monday of April of each year. ’ ’
Section 7518, is as follows: “Said board shall have power to hear complaints and to equalize the valuation and assessments upon all real and personal property within the county which is made taxable by law, and, having each taken an oath, to be administered by the clerk, fairly and impartially to equalize the valuation of all the taxable property in such county, shall immediately proceed to equalize the valuation and assessment of all such property, both real and personal, with in their counties respectively, so that each tract of land shall be entered on the tax-book at its true value: Provided, that said board shall not reduce the valuation of the real or personal property of the county below the [389]*389value thereof as fixed by said state board of equalization. ’ ’
Section 7537, reads as follows: “If any person shall, with intent to defraud, deliver to any assessor a false list of his property, it shall be the duty of the assessor to give notice in writing thereof to the said county board of equalization; and the said board shall, on receiving such notice, give notice thereof to the person who shall have furnished such false list, which notice shall specify the particulars in which said list is alleged to be false, and shall fix a time for a hearing of the matter, on which day the person aforesaid shall have the right to appear and defend against such charge; and if it appear that such person is not guilty as charged the said board shall dismiss the matter; but if it appear that such person is guilty as charged, it shall be the duty of said board of equalization to ascertain the true amount and value of all property of such person subject to taxation, and to tax the same as similar property of other persons is taxed, and in addition shall, by way of penalty for furnishing such false list, treble the amount of taxes thus ascertained against such person; and such person shall be required to pay such treble amount, and shall in addition thereto be liable to be punished for perjury."
It is too clear for argument that under the sections of the statute quoted, the board of equalization had jurisdiction over the subject-matter of controversy; besides it was so held in the case of State ex rel. Lemon v. Buchanan County Board of Equalization, 108 Mo. 235.
The point is made that the board had no jurisdiction over the persons of plaintiffs, but this position is untenable. The record of the board shows that on April 19, 1899, the assessor, of Butler county filed with the board a duly certified list of credits, as shown by the record in the office of the recorder of deeds, of said •county, from which it appeared that plaintiffs failed to list with the assessor certain credits amounting to $11,-‘682, and that upon the filing of said certificate with the [390]*390board it ordered its secretary to give to each of tbe plaintiffs a personal notice, by banding in person or by mail, notifying them of tbe amount not listed and setting April 26, 1899, as appeal day to bear appeals from tbe board’s action. That on April 19, 1899, a notice was issued by said board in pursuance of said order signed by tbe president of tbe board, and addressed to plaintiffs, but whether ever received by them or not does not appear. But it does appear from tbe record that plaintiffs in their .own proper persons were present at tbe trial before tbe board on April 27, 1899, and after being-sworn submitted their statements, either oral or written, and the' determination announced. In these circumstances it must be held that plaintiffs waived all questions as to notice. [State ex rel. Lemon v. Buchanan County Board of Eq., supra; State ex rel. v. Gaylord, 73 Wis. 306.]
It is said that tbe return fails to show that evidence was beard by tbe board in relation to tbe plaintiffs ’ assessment list, and therefore tbe action of tbe board is invalid. A sufficient answer to this contention is, that tbe law makes no provision by which evidence of this, character before boards of equalization may be preserved, in tbe absence of which it must be presumed that it acted in accordance with tbe forms of law and faithfully discharged its duties. [State ex rel. v. Hannibal & St. Joe R. R. Co., 101 Mo. 128.]
It has always been held by this court that tbe writ of certiorari brings up for review only such facts as appear from tbe face of tbe record (Railroad v. State Board of Equalization, 64 Mo. 294; State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. City of Kansas, 89 Mo. 38; State ex rel. v. Edwards, 104 Mo. 126) “and which go to tbe jurisdiction of tbe tribunal to- which the writ is sued out” and no other facts can be -reviewed by such writ. [Ward v. Board of Equalization, 135 Mo. 309.].
We come now to the vital question for consideration-in this proceeding, and that is, tbe authority of the board to add to the assessment list of the relators ’ prop[391]*391erty of the value of $11,682 not given in by them. This we-think the record plainly shows the hoard did. The only authority claimed for such action is to be found in section 7537, Revised Statutes 1889.
While section 7518, supra, confers upon the board the power to hear complaints and to equalize the valuation and assessments upon all real and personal property within the county which is made taxable by law, it does not confer upon such board power to assess, but confers the power to increase or diminish the valuation made by the assessor (Railroad v. Cass County, 53 Mo. 17); and unless such power is conferred upon it by section 7537 it is nowhere to be found in the statute.
Free access — add to your briefcase to read the full text and ask questions with AI
BURGESS, J.
This is a proceeding by certiorari sued out in the circuit court of Butler county, and directed to the board of equalization of that county, for the purpose of quashing the record of said board in which there was at their regular meeting,in April, 1899, added to the assessment list of the. personal property of [388]*388relators for that'year other personal property of the value of $11,682. Respondents made return to the writ, and at the May term, 1899, of said circuit court, upon a hearing, the record of the proceedings of said hoard was quashed and annulled. Defendants appealed in due course after the usual motions and exceptions.
The record recites that the court quashed the proceedings of the hoard of equalization for the reason “that,;as appears from facts appearing on the face of the record, and return of respondents herein, the said board of equalization was wholly without jurisdiction to make any order adding the sum of $11,682, or any other sum, to the assessment list of those relators, as it has assumed to do, and that the said pretended order *of said hoard of equalization adding the said sum of $11,682 to the said assessment list of these relators, is' wholly inoperative and void.”
The first question presented for our consideration is whether the board of equalization had jurisdiction of the subject-matter. By section 7517, Revised Statutes of 1889, it is provided that: “There shall be in each county in this State, a county board of equalization, which board shall consist of the county clerk, who shall be secretary of the same but have no vote, the county surveyor, the judges of the county court, and the county assessor, which board shall meet at the office of the county clerk on the first Monday of April of each year. ’ ’
Section 7518, is as follows: “Said board shall have power to hear complaints and to equalize the valuation and assessments upon all real and personal property within the county which is made taxable by law, and, having each taken an oath, to be administered by the clerk, fairly and impartially to equalize the valuation of all the taxable property in such county, shall immediately proceed to equalize the valuation and assessment of all such property, both real and personal, with in their counties respectively, so that each tract of land shall be entered on the tax-book at its true value: Provided, that said board shall not reduce the valuation of the real or personal property of the county below the [389]*389value thereof as fixed by said state board of equalization. ’ ’
Section 7537, reads as follows: “If any person shall, with intent to defraud, deliver to any assessor a false list of his property, it shall be the duty of the assessor to give notice in writing thereof to the said county board of equalization; and the said board shall, on receiving such notice, give notice thereof to the person who shall have furnished such false list, which notice shall specify the particulars in which said list is alleged to be false, and shall fix a time for a hearing of the matter, on which day the person aforesaid shall have the right to appear and defend against such charge; and if it appear that such person is not guilty as charged the said board shall dismiss the matter; but if it appear that such person is guilty as charged, it shall be the duty of said board of equalization to ascertain the true amount and value of all property of such person subject to taxation, and to tax the same as similar property of other persons is taxed, and in addition shall, by way of penalty for furnishing such false list, treble the amount of taxes thus ascertained against such person; and such person shall be required to pay such treble amount, and shall in addition thereto be liable to be punished for perjury."
It is too clear for argument that under the sections of the statute quoted, the board of equalization had jurisdiction over the subject-matter of controversy; besides it was so held in the case of State ex rel. Lemon v. Buchanan County Board of Equalization, 108 Mo. 235.
The point is made that the board had no jurisdiction over the persons of plaintiffs, but this position is untenable. The record of the board shows that on April 19, 1899, the assessor, of Butler county filed with the board a duly certified list of credits, as shown by the record in the office of the recorder of deeds, of said •county, from which it appeared that plaintiffs failed to list with the assessor certain credits amounting to $11,-‘682, and that upon the filing of said certificate with the [390]*390board it ordered its secretary to give to each of tbe plaintiffs a personal notice, by banding in person or by mail, notifying them of tbe amount not listed and setting April 26, 1899, as appeal day to bear appeals from tbe board’s action. That on April 19, 1899, a notice was issued by said board in pursuance of said order signed by tbe president of tbe board, and addressed to plaintiffs, but whether ever received by them or not does not appear. But it does appear from tbe record that plaintiffs in their .own proper persons were present at tbe trial before tbe board on April 27, 1899, and after being-sworn submitted their statements, either oral or written, and the' determination announced. In these circumstances it must be held that plaintiffs waived all questions as to notice. [State ex rel. Lemon v. Buchanan County Board of Eq., supra; State ex rel. v. Gaylord, 73 Wis. 306.]
It is said that tbe return fails to show that evidence was beard by tbe board in relation to tbe plaintiffs ’ assessment list, and therefore tbe action of tbe board is invalid. A sufficient answer to this contention is, that tbe law makes no provision by which evidence of this, character before boards of equalization may be preserved, in tbe absence of which it must be presumed that it acted in accordance with tbe forms of law and faithfully discharged its duties. [State ex rel. v. Hannibal & St. Joe R. R. Co., 101 Mo. 128.]
It has always been held by this court that tbe writ of certiorari brings up for review only such facts as appear from tbe face of tbe record (Railroad v. State Board of Equalization, 64 Mo. 294; State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. City of Kansas, 89 Mo. 38; State ex rel. v. Edwards, 104 Mo. 126) “and which go to tbe jurisdiction of tbe tribunal to- which the writ is sued out” and no other facts can be -reviewed by such writ. [Ward v. Board of Equalization, 135 Mo. 309.].
We come now to the vital question for consideration-in this proceeding, and that is, tbe authority of the board to add to the assessment list of the relators ’ prop[391]*391erty of the value of $11,682 not given in by them. This we-think the record plainly shows the hoard did. The only authority claimed for such action is to be found in section 7537, Revised Statutes 1889.
While section 7518, supra, confers upon the board the power to hear complaints and to equalize the valuation and assessments upon all real and personal property within the county which is made taxable by law, it does not confer upon such board power to assess, but confers the power to increase or diminish the valuation made by the assessor (Railroad v. Cass County, 53 Mo. 17); and unless such power is conferred upon it by section 7537 it is nowhere to be found in the statute. That such authority is conferred upon the board by that section under certain conditions, is, we think, clear, that is, where any person with intent to defraud, shall deliver to any assessor a false list of his property and shall be proceeded against in accordance with the provisions of that section for so doing, and if upon investigation by the board he be found guilty of intent to defraud in failing to deliver to the assessor a correct list of his property, then it becomes the duty of the board to ascertain the true amount and value of all property of such person subject to taxation, and to tax the same as similar property of other persons is taxed, and, in addition, to add by way of penalty for furnishing such false list, treble the amount of taxes thus ascertained against such person, etc. Now, it appears from the record that the assessor did give notice in writing to the board calling their attention to the fact that plaintiffs had failed to list all of their property, but had omitted therefrom deeds of trust and mortgages compiled from the records in the office of the recorder of Butler county, covering a period of from January 1, 1896, to June 1, 1898, as relates to deeds of trust, and from January 1, 1897, to June 1, 1898, as relates to chattel mortgages; that upon the receipt by the board of said writing it caused to be made out a notice in writing to plaintiff, in which it is recited that, “On the 19th day of April, 1899, the assessor of said county filed with the board a duly certi[392]*392fied list of credits as shown by the record in the office of the recorder of Bntler connty, in which it appeared that yon failed to list certain credits amounting to $11,682, and yon are hereby notified to appear before said board on Wednesday, April 26, 1899, and show canse why the sum of $11,682, should not be added to your assessment for the year 1899, as provided in section 7537, Revised Statutes 1889.”
It does not appear, however, by positive evidence that plaintiffs received this notice, but it must be presumed that they did, for on the day next following, the one upon which they were required by the notice to appear before the board, the record shows they did appear, and after being duly sworn made their statements, either oral or written, to the board, which were taken under advisement. So that, if they did not receive the notice, they waived it by their appearance before the board.
The record shows further that, on April 28, 1899, the following entry was made:
‘ ‘ And the board having duly and carefully considered statements of persons made and filed herein it is now considered and ordered that from the amounts of unlisted credits returned to the board of equalization by the assessor, the following amounts (among others) be stricken out, viz.:
“E. W. Wright and James L. Dalton amount returned by assessor $11,682; amount stricken out, nothing; amount assessed by the board, $11,682.”
Now, as section 7537 makes it the duty of the board, if upon the hearing of such matter it appear that the person charged is not guilty as charged, to dismiss the matter, and they did not do this, but added to plaintiffs ’ assessment list theretofore furnished by the assessor to them the sum of $11,682, it must be conclusively presumed that the board found the plaintiffs" guilty as charged; otherwise, it would not have added anything to said list, but would have dismissed the proceeding. Certainly the plaintiffs have no cause to complain of the failure of the board to impose upon them the pen[393]*393alty prescribed by statute in such, cases for furnishing sucb false list, to-wit, treble the amount of taxes thus ascertained, nor did the jurisdiction of the board at all depend, upon the exercise of the power to impose the penalty.
In discussing this same section in State ex rel. Ferguson v. Moss, 69 Mo. 495, it is said: “ ‘Tax penalties are imposed for mere delinquencies, in order to hasten payment, and also as a punishment for frauds, evasions and neglect of duty. In some cases they are imposed by the taxing officers; in others they are recovered by suit or indictment. When lists or statements are required to be furnished as a basis for taxation, the privilege of being heard in abatement of the tax is sometimes taken away as a penalty upon the taxpayer for not furnishing it. There are some cases in which a right to impose a penalty, except upon a judicial investigation by a competent court, has been denied, as being the imposition of a punishment without trial. But when the penalty is imposed in the course of the proceedings to assess, and by officers who, for that purpose, exercise a quasi-judicial authority, and when the party is given an opportunity to be heard and contest his delinquency, either before the assessing officer or in some form of appeal, the imposition of a penalty does not seem to be out of harmony with the general spirit of tax proceedings, and perhaps may be sustained on the same principles that support tax laws in general.’ [Cooley on Tax., 309, 314.] The act in question conforms to the principles thus announced. It does not authorize condemnation without a hearing, but on the contrary, expressly provides that the penalty therein declared for the delivery, by the taxpayer, of a false list of his property, shall not be imposed till such taxpayer has been served with notice, which shall specify the particulars" in which said list is alleged to be false, and shall fix a day for hearing the matter, when such taxpayer shall have the right to appear and defend against such charge. It also provides that the complaint shall be heard by a board of equalization, com[394]*394posed of the county court, assessor and surveyor. It may also be said that while an appeal is not allowed from their decision, their proceedings may be reviewed either by the circuit court or this court on certiorari, and if when the record is presented error appears from the face of it, they may be set aside and annulled. A delinquent taxpayer, against whom a penalty has been thus adjudged, may be said to have had the full benefit of ‘ due process of law. ’ ’ ’
Our conclusion is that the judgment should be reversed with directions to the court below to quash the writ of certiorari.
It is so ordered.
All of this Division concur.