City of Kansas v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1883
• Citation: 81 Mo. 285
• Court: Missouri Supreme Court
• Parties: THE CITY OF KANSAS v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

81 Mo. 285

THE CITY OF KANSAS

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Geo. W. Easley for appellant.

For the years 1868 and 1869, the property belonged to the Kansas City & Cameron Railroad Company; its stock was personal property, (Sess. Acts 1857, p. 162, § 21,) and the stock alone was subject to assessment. R. S. 1855, p. 1331, §§ 30, 31, 32; Gen. St. 1865, p. 103, §§ 27, 28, 29. As against this defendant who acquired the property in February, 1870, the property could not be assessed in 1874 for the taxes of 1868 and 1869. State v. St. Louis, Kansas City & Northern R'y Co., 77 Mo. 202. And the reason assigned for dissenting in the last named case, by Justice NORTON, does not exist here. The property was acquired by defendant in 1870, before any change was made in the law substituting an assessment on the property, for an assessment on the capital stock. It appearing affirmatively, that the county clerk made the levies sued upon on his own motion, and on a certificate from the city clerk, without any certificate from the city council certifying the rate per cent levied at the same time on all other property for municipal purposes, and without any order made by the county court ascertaining and levying the taxes, the levy was void. Sess. Acts 1873, p. 65, § 13. The act provides that the rate shall be certified by the city council, not by the city clerk, and that the tax shall be ascertained and levied by the county court, not by the clerk. The county court is a court of record, (Gen. St. 1879, p. 190, § 1023,) and its proceedings can only be known by its record, so that if the duty to “ascertain and levy” the tax is put upon that court by law, it could only be done by an order entered of record. Cooley on Tax., pp. 184, 209; Blackwell on Tax Titles, (2 Ed.) p. 155; 2 Dillon Corp., (2 Ed.) § 610; Westfall v. Preston, 49 N. Y. 353; Moser v. White, 29 Mich. 59; Beckwith v. English, 51 Ill. 147; National B'k v. Cook, 77 Ill. 622. But the certificate read in evidence from the city clerk as to the rate of taxation for the year 1875, if he had the power to make it, did not authorize any levy. There should have been a certificate of the rate levied for each of the several years. State ex rel., etc., Pettis Co. v. Union Trust Co., 68 Mo. 463; Lebanon v. Railroad Co., 77 Ill. 539. There was no pretence of but one certificate, and that from the clerk. The certificate of the clerk as to the levies made by the various corporations for the various years, are not evidence of the facts therein stated. “At common law the certificate of a public officer, no matter how high and solemn his office, is inadmissible to prove any disputed fact.” Wharton on Ev., § 120; 1 Greenleaf's Ev., § 498. There being no statute requiring him to certify to the rates levied by municipalities, and no statute making his certificate evidence, the appellant's objections to its introduction should have been sustained. The only thing he was required to certify was “immediately after the county court shall have ascertained and levied the taxes,” to furnish the railroad company and collector with a statement of the taxes levied. Acts 1873, p. 67, § 21. He could not make evidence by doing an unauthorized act. Until the county court had made the levy he could do nothing. The taxes sued for, together with the taxes on all the other railroads of the State, were in litigation at the time of the compromise. Moore v. Holliday, 4 Dill. 52. And the county of Jackson and the respondent were not made parties in the last named case, because of the compromise or the willingness of the county court to make it. The compromise fixed the taxes of 1873 at the rate the county courts had fixed them, and as was determined by the United States court to be the proper basis. Paul v. Railroad Co., 4 Dill. 35. In view of this litigation and the acceptance of the money by the city, and its use, it ought not to be permitted at this late day to question the authority of the county court to make the compromise, and unsettle the whole results of the litigation in the federal courts. Iron M. R. R. Co. v. Anthony, 73 Mo. 431D. S. Twitchell with Gage, Ladd & Small for respondent.

The objection to reading the tax bills or certificates in evidence, is not well taken. The law did not require them to be filed, nor was it necessary to plead them, as they were mere evidence. The demurrer to the evidence was properly overruled, because the proceedings of the State Board of Equalization and certificates of the State Auditor, introduced in evidence, showed the assessment and apportionment as alleged. The tax certificates were prima facie evidence of the validity of the taxes claimed. Ketchum v. Railroad Co., 4 Dill. 43. Defendant's instruction number two, was properly refused; no order of record or any order at all by the county court levying the taxes being necessary under section 13, Railroad Tax Act of 1873, (Acts 1872, p. 65). Robbins v. Barron, 33 Mich. 125; Railroad Co. v. Company, 59 Mo. 223. Defendant's instruction number seven, as to the alleged settlement with the county court was properly refused. Madison Co. v. Smith, 95 Ill. 328. Defendant's instruction which raised the question of the validity of the taxes for 1868, 1869 and 1870, was also rightly refused. Acts 1852, p. 244; State v. R. R. Co., 77 Mo. 202; Acts 1868, pp. 209, 210; State v. City Council, 10 Rich. (Law) 240; Burroughs on Tax., pp. 164, 165, 385; Dunlieth v. Dubuque, 32 Ia. 427; Davenport v. Railroad Co., 16 Ia. 348; Tappan v. Bank, 19 Wall. 490; Curtis v. Ward, 58 Mo. 295; State v. Auditor, 46 Mich. 224; Railroad Co. v. Weber, 96 Ill. 443; Gen. St. 1865, p. 121, § 76; Acts 1868, p. 142, § 2; City of St. Joseph v. Railroad Co., 39 Mo. 476; City of Lexington v. Aull, 30 Mo. 480; Knowlton v. Supervisors, 9 Wis. 410; Life Asso'n v. Assessors, 48 Mo. 518; Railroad Co. v. Alexander, 17 Gratt. 184; Cooley on Tax., pp. 232, 233; Cooley on Const. Lim., (4 Ed.) pp, 254, 255; Blackwell on Tax Titles, (4 Ed.) p. 184; Fairfield v. People, 94 Ill. 244. The fact that there is no law authorizing re-assessment of taxes until after the property has changed hands, does not alter the case. Purchasers have notice of the power of the legislature to pass the laws. Tallman v. Janesville, 17 Wis. 71; Cross v. Milwaukee, 19 Wis. 535; Fairfield v. People, supra.

HENRY, J.

This is an action to recover taxes alleged to have been levied in favor of the City of Kansas, for the years 1868, 1869, 1870, 1871 and 1873, under the act of 1873, (acts p. 63). The city had a judgment for $10,931.24, from which an appeal was duly prosecuted to this court. Numerous errors are assigned which we shall notice as briefly as possible.

First, it is claimed that the city cannot maintain this action, even if entitled to the taxes, but that the suit must be prosecuted by the county in the name of the State. Although the act of 1875 provides that the county court ““may at their pleasure,” include city taxes in a suit for State and county taxes, yet by the act of 1875, the city was also empowered to sue for city taxes. Section 17, p. 124 Session Acts 1875.

Objections were also made to the introduction in evidence of certificates of the clerk of the county court of Jackson county, stating the amount of the taxes due from the Cameron and Kansas City branch of the H. & St. Joe R. R. Co., for the years above named, issued to the collector of the county named.

The act of 1875, section 16, required the certificates to be made by the clerk, under the seal of the court, and the several certificates were in conformity with the requirements of the act, and authorized the collector to seize and sell the property of the defendant, and we are inclined to the opinion, but do not decide that they are prima facie evidence of the defendant's liability. Ketchum v. R. R., 4 Dillon, pp. 43, 50.

Nor was it necessary to file with the petition or plead these certificates. They were but evidence of the assessments and levies, and the principle of pleading is too familiar to require the citation of authorities in its support, that it is improper to plead the evidence upon which a party relies. The law requires the filing with the petition of such papers only, as are the foundation of the suit. The certificates did not constitute the levy of the tax. The issuance of the certificate is not a step essential to the imposition of the tax; it can be issued legally only after all necessary steps have been taken to impose the tax upon the property. The certificate is of facts which have already occurred, and, therefore, whether made in 1874 or 1875, it was of the assessment and levy of taxes in 1874, for the years named in the petition. This disposes of defendant's objection, that there was a variance between the pleading and the proofs, the action being for taxes levied in 1874, and the certificate bearing date 1875.

Nor was the objection well taken that the certificate of the rate per cent levied by the City of Kansas on all other property, which the act of 1874 required the city council to deliver to the clerk of the county court, was made by the clerk of the council, and not by the council. What other mode of certifying its acts and doings is provided by law? They are entered in books kept for the purpose of preserving and authenticating them. The clerk is custodian of those records, and the certificate, if truly made, is of a transaction recorded in those books, and his certificate is within the sense of the law, the certificate of the board.

Nor did the court err in the exclusion of the evidence of a compromise effected by the defendant with the county court, by which a less sum than that demanded by the city was accepted in full of that demanded. The county court had no authority to compromise the city taxes. The case of the St. L., I. M. & S. R'y Co., v....