State v. Tracy

• Decision Date: 06 February 1888
• Citation: 6 S.W. 709,94 Mo. 217
• Parties: STATE ex rel. BOARD, ETC., ST. LOUIS PUBLIC SCHOOLS v. TRACY.
• Court: Missouri Supreme Court

6 S.W. 709

94 Mo. 217

STATE ex rel. BOARD, ETC., ST. LOUIS PUBLIC SCHOOLS v. TRACY.

Supreme Court of Missouri.

February 6, 1888.

1. MANDAMUS — JURISDICTION OF SUPREME COURT.

The jurisdiction of the supreme court of Missouri to issue an original writ of mandamus is not dependent on the fact that it would have appellate jurisdiction in the same matter.

2. SCHOOLS AND SCHOOL-DISTRICTS — TAXATION — TAXABLE PROPERTY — MERCHANT'S LICENSE TAX.

Rev. St. Mo. 1879, § 6318, requires every merchant to file a statement of the greatest amount of merchandise on hand between given dates, and the amount of such statement, and the amount of each kind of taxes levied thereon, to be entered by the clerk of the county in the "Merchants' Tax-Book." Held, that such taxes are property taxes, and, being such, said merchandise is taxable for school purposes.

3. SAME — LEVY AND COLLECTION — DUTY OF REGISTER OF ST. LOUIS.

Rev. St. Mo. 1879, § 6318, makes it the duty of the clerk of the county of St. Louis to receive and extend in the "Merchants' Tax-Book" the statements of the merchants of the city of St. Louis, of the largest amount of merchandise on hand between given dates, and the amount of each tax levied thereon. Article 4, § 23, of the present charter of the city of St. Louis, makes it the duty of the register to do and perform all duties now required of the county clerk. Held, that it is the duty of the register to receive such merchants' statements, and extend thereon the school tax, and that a writ of mandamus to compel the performance of such duty addressed to him, is addressed to the proper officer.

Original proceedings in mandamus.

The state of Missouri, on the relation of the Board of the President and Directors of the St. Louis Public Schools, applied for a writ of mandamus to compel Daniel O'Conner Tracy, register of the city of St. Louis, to perform certain acts relative to receiving the statements of merchants of St. Louis of the largest amount of merchandise on hand between certain dates, for the purpose of extending thereon the school tax assessed by relator. Respondent filed a motion to quash the alternative writ for want of jurisdiction, to which relator filed a general demurrer.

Fisher & Rowell and Leo Rassieur, for relator. L. Bell & Hough, and Overall & Judson, for respondent.

BLACK, J.

This is a proceeding commenced in this court by petition for writs of mandamus. The cause is now before us on a motion to quash the alternative writ, and to dismiss the suit for want of jurisdiction of this court to hear this cause, and upon a demurrer to the return made by the respondent. The relator, a school corporation, created by the special act of February 13, 1883, levied a tax of four mills on the dollar on all real and personal property within the corporate limits of St. Louis for the year 1885, and caused a copy of the resolutions to be delivered to the register and to the collector of the city of St. Louis. Susan Boder had a merchant's license to do business in the city. She exhibited to the respondent, who is register of the city, a verified statement of the largest amount of merchandise which she had on hand between the first Monday of March and June, 1885, for the assessment of taxes thereon. The object of this proceeding is to compel the register to receive the statement, and extend in the "Merchants' Tax-Book" the four-mill tax levied by the relator for school purposes.

1. The first question is whether this court has jurisdiction of the subject-matter; and that it has we entertain no doubt. Generally the jurisdiction of this court is appellate only; but by the constitution it has power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs, and to hear and determine the same. Like jurisdiction is given to the courts of appeals to hear and determine original remedial writs; and, as the appellate jurisdiction of this court is limited to specified cases, it is argued by the respondent that this court has no power to issue, hear, and determine writs of mandamus, except in those cases where it would have appellate jurisdiction, and that this is not one of them. The argument is drawn from what was said in Britton v. Steber, 62 Mo. 372. That was an application for a writ of certiorari. It was there, in substance, said that certiorari, in effect, performed the functions of an appeal or writ of error; that the St. Louis court of appeals had original and appellate jurisdiction, in that case, and this court had no appellate jurisdiction in the particular case. The conclusion reached is as follows: "Where we are prohibited from acting upon a question of appeal or writ of error, we cannot take cognizance of it by certiorari."

Conceding all that is said in that case, it can have no direct bearing upon the questions now under consideration. That case is made to stand on the ground that certiorari performs the office of an appeal or writ of error. In such cases the appellate court looks alone to the record of the court below. If the judgment of the lower court is regular and legal, it is affirmed; if illegal, the whole proceedings are quashed. Mandamus, however, is in no sense a writ of review, nor does it perform the functions of an appeal or writ of error. When addressed to a ministerial officer, as in this case, it simply commands him to perform some specific act the performance of which is required of him by law. The grant of power to this court to hear and determine writs of mandamus is without qualification, and none exists in the nature of the proceeding. The practice of this court is to decline to issue such writs, unless the case is one of more than ordinary importance. But that is a rule of expediency, and does not affect the jurisdiction of the court. The jurisdiction of this court to issue a writ of mandamus is not at all dependent upon the fact that it would have appellate jurisdiction in the same matter.

The questions raised on the demurrer to the return are — First, whether the alternative writ is addressed to the proper officer, the respondent insisting that, if issued at all, it should be directed to the collector; second, whether a tax by way of merchants' license is a property tax, the respondent insisting that it is an occupation tax only.

For the purpose of considering the first of these questions, it will be assumed that the tax is a property tax. It is also to be remembered that the relator receives a due portion of the general state revenue set apart for the support of schools. It has, like the school-districts throughout the counties, power to levy a local tax for the...