State ex rel. Ward v. Atchison

72 S.W. 1075, 173 Mo. 164, 1903 Mo. LEXIS 243

• Court: Supreme Court of Missouri
• Decided: March 18, 1903
• Status: Published

Opinion

BRACE, P. J.

This is an appeal from a judgment of the circuit court of Clinton county, in a proceeding in that court by certiorari, quashing a record and proceeding of the board of equalization of said county.

By section 9150, Eevised Statutes 1899, it is provided that: “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 boárd 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 have been 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.”

On September 29, 1899, John Ward, late of .said county, deceased, gave a list of his taxable property to Phillip V. Bowman, the assessor of said county, and afterwards on November 12, 1899, died intestate, and the respondent became his administratrix. Afterwards on April 14, 1900, the said assessor gave notice in writing to the board of equalization of said county, that the said John Ward did, on said 29th day of September, 1899, with intent to defraud, deliver to said assessor ¿ false list of his property, in this.: “That said list contains, ‘for other personal property, sixty dollars; money, notes, twenty-five hundred dollars,’ when in truth and in fact the said John Ward was on the first day of June, 1899, the owner of additional personal property which he failed to list, as follows: money, notes thirty thousand, nine hundred and sixty-nine dollars and forty-three cents, as shown by the records in the probate office of said Clinton county, Missouri.”

'Thereupon the board ordered that said matter be heard on April 19, 1900, and that a copy of said notice and order be served upon the respondent administratrix, to appear before the board on that day to answer, the charge, which on the same day was served on said administratrix, and on April 19, 1900, she appeared by attorneys before the board, for the purpose of the motion only, and moved that the proceeding be dismissed on the following grounds:

“First. Because this is a proceeding to enforce a penalty wherein the party against whom the charge is made is dead.

“Second. Because there is no statute authorizing this proceeding against the estate of the decedent for a personal violation of the law, even where there has been a violation of law.

“Third. Because this proceeding, as well as all other penalties under the statute for giving a false list for assessment, can only be brought against the individual who makes such false list, and in this case, the party charged is dead.

“Fourth. Because there was not sufficient notice of the charge herein given, or any notice given to the deceased.

“Fifth. Because the board of equalization has no jurisdiction of this matter, nor of the administratrix herein. ’ ’

The motion was overruled; the said John Ward was found guilty of the charge; that the true amount of all his property on the first day of June, 1899, was thirty-three thousand five hundred and twenty-nine dollars and forty-three cents; and it was ordered that treble that .amount be placed on the personal assessment book for the taxes of the year 1900.' Upon the record of the proceeding being brought before the Clinton Circuit Court on certiorari, the same was quashed, and from the judgment of that court this appeal was taken by the board of equalization.

(1) In support of appellant’s contention that this proceeding before the board of equalization is authorized by the section of the statute quoted, the case of State ex rel. Ferguson v. Moss, 69 Mo. 495, in which it was held to be constitutional, and State v. Cannon, 79 Mo. 343, in which it was held that on the trial of a taxpayer for perjury under this section it was not necessary to his conviction that he should first have been found guilty by the board of equalization; are cited, all of which may be. conceded. And in further support thereof section 96, Revised Statutes 1899, providing for the survival of certain civil actions ex delicto which formerly abated by death under the common law, and cases on this subject, are cited. But in the view we take of this case, these authorities are not in point, and the argument based on them need not be reviewed. This section, in its present form, has been on our statute books since 1865. [G. S. 1865, p. 102, sec. 25; R. S. 1879, sec. 6691; R. S. 1889, sec. 7537.] By its terms, plain, simple and unequivocal, a public offense is created, defined, and the punishment therefor prescribed; a criminal offense, one of the highest grade, a felony. The crime is a heinous one, and the punishment severe, and the penalties therefor can not be inflicted on any person who has not been duly charged therewith, tried, and convicted thereof, in manner and form as prescribed by law. It goes without saying that a dead man can not be so charged, tried and convicted. The fact that before all the penalties of the crime can be visited upon the culprit he must be twice tried and found guilty, and, before different tribunals, and that the proceeding in the one is in no way connected with 'or dependent on the other, in no way affects or changes the nature of the offense or the character of the proceeding in either; in both it is essentially criminal, and for the offense, under this statute, a dead man can no more be tried and convicted before the board of equalization than he could be tried and convicted as for perjury in the circuit court. This law has been upon our statute book, in one form or another, ever since the organization of the State government, and has never assumed any other aspect. [R. S. 1855, p. 1331, sec. 28; R. S. 1845, p. 932, sec. 20; R. S. 1835, p. 532, sec. 15; 2 Laws of Mo. 1825, p. 667, sec. 10; 1 Mo. Ter. Laws, 1804-24, p. 734, sec. 9].

, The judgment of the circuit court ought to be affirmed, and it is so ordered.

All concur.