Gilmore v. Hibbs

• Decision Date: 10 June 1941
• Docket Number: 37246
• Citation: 152 S.W.2d 26,347 Mo. 1072
• Parties: Thomas H. Gilmore et al., Appellants, v. Frank M. Hibbs and Helen Hibbs
• Court: Missouri Supreme Court

152 S.W.2d 26

347 Mo. 1072

Thomas H. Gilmore et al., Appellants, v. Frank M. Hibbs and Helen Hibbs

No. 37246

Supreme Court of Missouri

June 10, 1941

Appeal from Jasper Circuit Court; Hon. Ray E. Watson Judge.

Affirmed.

A H. Garner for appellants.

(1) The State and county taxes are paramount to the city taxes for the same years in question, and in this case, in both instances, they were for 1936 and prior years. Little River Drainage Dist. v. Jones, 136 S.W.2d 445, which says, "That the title of the purchaser acquired under the sale is determined by the date of the lien of the taxes merged in the tax judgment." Little River Drainage Dist. v. Shepherd, 7 S.W.2d 1013, wherein the court held that it cut out the liens of assessments levied during the same years that the liens for the State taxes accrued and became payable, and again it said, that only the lien of the State for the general State, county, school and road taxes shall be paramount. (2) Even though the law is as the court found, the evidence showed that the tax certificate was issued on the 3rd day of November, 1937, but it appears that it was offered on November 1, 1937, and on November 2, 1939 and within the two years from the date of the issuance of the certificate, the offer to redeem was made, therefore, the right to redeem was within the statute. (3) The city collector had no authority to make the deed. Secs. 9949, 9970, R. S. 1929; Sec. 9952, Laws 1933, p. 425. (4) The sale by the county collector made ineffective and inoperative the city tax certificate. Little River Drainage Dist. v. Jones, 136 S.W.2d 440.

Elza Johnson for respondents.

(1) The taxing power may be exercised by municipal corporations under authority granted to them by the General Assembly, for corporate purposes. Mo. Const., Art. IX, Sec. 1. (2) The right to tax without power to enforce payment would be of no avail, and the State has constitutional power to enforce payment of taxes by statutory procedure. 61 C. J., p. 1115. (3) The Legislature in prescribing the mode of enforcing payment of taxes may or may not make use of judicial tribunals or judicial forms, as seems most convenient. 61 C. J., p. 1115. (4) A sale, without judicial proceedings to enforce lien of State for taxes instead of enforcement by suit, is not unconstitutional. State ex rel. Karbe v. Bader, 78 S.W.2d 835. (5) The nominal re-enactment of Section 9970, Article 10, Laws of 1933, page 450; did not repeal Sections 9945-9949 et seq. enacted at same session, and was only stop-gap legislation and has been held to be void after the effective date of the Jones-Munger Law. State ex rel. Karbe v. Bader, 78 S.W.2d 835. (6) The procedure required by Sections 9970 et seq. both before and after its re-enactment in 1933, was and is applicable to a limited number of cities only, which return their delinquent taxes to county instead of city officers, and does not apply to cities of the third class. State ex rel. Steed v. Nolte, 138 S.W.2d 1016. (7) Under statute providing that city taxes should be enforcible in same manner used for collection of State and county taxes, taxes due the city of Carthage, a city of the third class, are collectible by advertisement and sale in manner provided for collection of State and county taxes. Secs. 6780, 6781, R. S. 1929; City of Aurora ex rel. Williams, Collector, v. Lindsay, 146 Mo. 509; State ex rel. Bauer, Collector of the City of Jefferson, v. Edwards, 162 Mo. 660; State ex rel. Steed v. Nolte, 138 S.W.2d 1006.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

The principal question presented for determination is: May a municipal corporation of the third class proceed under what is commonly known as the Jones-Munger law (Law 1933, p. 425 et seq., S. B. 94) in the sale of real estate for the collection of delinquent taxes? The former owners Thomas H. Gilmore and others, appellants here, instituted this action to quiet title to certain real estate situate in Carthage (a municipality of the third class), Jasper County, Missouri, against Frank M. Hibbs and Helen Hibbs, purchasers thereof at a delinquent tax sale conducted by the city collector. The case was submitted on stipulated facts. No fraud is charged.

We think statutory provisions evidence a legislative intent to bring cities of the third class generally within the act.

"Where applicable it (the Jones-Munger act) shall also refer to the collector, or other proper officer, collecting taxes in any city or town. Where applicable the word 'county' as used in this act shall be construed 'city' and the words 'county clerk' shall be construed 'city clerk, or other proper officer.'" [Sec. 9963c, Laws 1933, p. 448, Mo. Stat. Ann., p. 8007, Sec. 9963c, now Sec. 11174, R. S. 1939.]

Section 6780, R. S. 1929, of the article relating to municipalities of the third class, provides: "Upon the first day of January of each year all unpaid city taxes shall become delinquent, and the taxes upon real property are hereby made a perpetual lien thereon against all persons in favor of the city. The enforcement of all taxes authorized by this article shall be made in the same manner and under the same rules and regulations as are or may be provided by law for the collection and enforcement of the payment of state and county taxes. . . ." [Sec. 6926, R. S. 1939, Mo. Stat. Ann., p. 5607, sec. 6780.]

Section 6781, R. S. 1929, specifying certain duties of collectors of cities of the third class, provides: "The city council shall cause the land and lot delinquent list and the personal delinquent list to be returned to the city collector, who shall be charged therewith, and who shall proceed to collect the same in the same manner and under the same regulations as are or may be provided by law for the collection of delinquent lists of real and personal taxes for state and county purposes . . ." [Sec. 6927, R. S. 1939, Mo. Stat. Ann., p. 5608, sec. 6781.]

Court en Banc in State ex rel. Steed v. Nolte, 345 Mo. 1103, 1104-1106, 138 S.W.2d 1016-1018, upon a consideration of statutory provisions (Secs. 6994-6996, R. S. 1929, Mo. Stat. Ann., pp. 5734-5736, now Secs. 7144-7146, R. S. 1939) applicable to cities of the fourth class and identical in all material respects to the above quoted provisions of Secs. 6780 and 6781 applicable to cities of the third class, held that the city of Clayton, a city of the fourth class, should collect its taxes in the manner provided by the Jones-Munger law. Appellants do not question the soundness of State ex rel. Steed v. Nolte. The same result follows with respect to the collection of taxes by cities of the third class generally.

Appellants' brief also mentions Secs. 9970 (re-enacted Laws 1933, p. 450) -- 9974, inclusive, and Sec. 9944, R. S. 1929 (Mo. Stat Ann., pp. 8012-8013, 7987, respectively, now Secs. 11202-11206 and 11116, respectively, R. S. 1939) without pointing out why the city of Carthage is to be distinguished from third class cities generally in respect to the collection of city taxes. The material provisions of said sections authorize county collectors to collect delinquent city land taxes (Secs. 9970 and 9971, R. S. 1929). A like contention was presented in State ex rel. Steed v. Nolte (supra, l. c. 1107[3] and 1019[5-8], respectively), and the court reviewed the history of the legislation, pointed out that Secs. 9970 and 9971 were first enacted in 1872 (Laws 1871-2, p. 118) when no city had a lien for, or the power to collect, city taxes; that City of Aurora ex rel. v. Lindsay (1898), 146 Mo. 509, 48 S.W. 642, held "that the city collector, not the county collector, was the proper officer to collect taxes due a city of the fourth class;" and stated that the statutory provisions mentioned are applicable only to the limited number of cities still returning their delinquent taxes to the county instead of city officers. This latter, from the record, the...