State Ex Rel. Young v. F. W. Woolworth Co.

ON MOTION FOR REHEARING. The collector contends that the action of the Board of Equalization, in annually determining assessments, should not be held res judicata so as to prevent suit on forfeiture of a merchant's bond at any time thereafter when the collector can find evidence of false statements.

[5] It is argued that this is true because the collector is not a party to the proceedings before the Board of Equalization. However, the collector merely represents and acts for the State in collecting taxes (he has no personal right but could only be interested in a representative capacity) and the State is a party to the proceedings before the Board. In fact, the State is acting through the Board to determine the assessments upon which it (and its authorized taxing units) may levy taxes. There are ample provisions for looking after the State's interests in these proceedings leading up to the final assessment judgment.

[6] On behalf of the collector, it is further argued, as follows:

"The action of the Board of Equalization in passing upon the Merchant Statements of Respondent for the years mentioned in each count of the petitions did become a final judgment and, therefore, Res Judicata, on the question of the amount of thestatements for taxation purposes and the amount of the tax respondent could be re-required to pay on these statements, but it did not become a judgment of Res Judicata on the question as to whether these statements were false and defendant's bonds thereby became forfeited. . . .

"The question of falsity of the statements and consequent forfeiture of the bonds was not and could not have been an issuebefore [301] the Board of Equalization in its proceedings under the provisions of the statute. The statute grants it no such authority, and, being a creature of the statute, it has only such power as is granted it by the statute." (Our italics.)

Section 11309, R.S. 1939, provides that the Board, when meeting *Page 1189 to consider Merchants' Statements, "shall have the same powers and shall proceed in the same manner as provided in article 3, of chapter 74, Revised Statutes 1939, for equalization of real and personal property." It is clear from the provisions of Art. 3 that these powers include the power to determine the "true value" of all property, to "raise the valuation" of either lands or goods "returned below their real value" and "to assess and equalize the value of any property that may have been omitted." [Secs. 11002, 11003 and 11006.] [See State ex rel. Davis v. Walden, 332 Mo. 680, 60 S.W.2d 24, concerning powers and duties of the Board of Equalization and other provisions for reaching correct assessments through action of State Tax Commission, etc.] Thus it seems clear that the question of the falsity of the statements was an issue before the Board of Equalization because the determination of the true value of the property (and whether it was all included) and its assessment at its real value was the purpose of the proceedings before it. Therefore, the actual ("real" or "true") value of a merchant's goods is a fact litigated between the State and the merchant before the Board and its finding of such value in accordance with the merchant's statement makes the matter of its correctness ResJudicata. [See In Re McMenamy's Guardianship, 307 Mo. 98,270 S.W. 662.] The time and place to investigate and decide such issue of actual value is during the required proceedings before the Board. If the Board finds that the merchant's statement is not correct, the collector is authorized (if there is evidence to sustain the charge of false statement) to bring a forfeiture suit on the merchant's bond for quadruple damages. We hold, however, that when the assessment judgment is in accordance with the merchant's statement, and he pays the tax levied, liability on his bond ceases.

The motion for rehearing is overruled. Bradley and Dalton,CC., concur.