Henry v. Bell

• Decision Date: 31 October 1881
• Parties: HENRY, Appellant, v. BELL.
• Court: Missouri Supreme Court

75 Mo. 194

HENRY, Appellant,

v.BELL.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Bates Circuit Court.--HON. F. P. WRIGHT, Judge.

REVERSED.

A Henry pro se.

The evidence of the county clerk shows that he levied the regular township tax in April, as was his duty under the law, and that after he received the order from the township board, June 7th, he made another and additional levy in this township which was unauthorized, and could not be legally made. See Township Organization, Acts 1873, page 118, sections 16, 17, 18, in which the clerk's powers and duties are defined; so that it appears, his duty had been performed and his authority exhausted, when, as in his evidence he says, he had done all required by these sections in the time prescribed by law. So he had no power afterward, on his own motion, or by any order of the township board, to make an additional levy. The county court, by the law in force, (Acts 1873, § 15, p. 118,) alone could fix the township tax, and this the court had done before.

E. J. Smith and P. H. Holcomb for respondent.

No instructions or declarations of law were asked or given in this case, and no questions of law were raised or determined by the court below, and there is nothing for this court to review. 47 Mo. 322; 43 Mo. 289; 46 Mo. 36. The only thing possibly shown by the record here, if anything at all is shown, is that there was a mere irregularity in the assessment and levy made by the township board. This would not prevent the enforcement of the tax. 47 Mo. 393; 48 Mo. 282.

RAY, J.

This is an action of replevin against Bell, to recover possession of a mare taken by him from plaintiff. Defendant's answer is a general denial, and the case made by the evidence is, that defendant was collector for Mt. Pleasant township, in Bates county, and seized the mare for township taxes, claimed against plaintiff, which he refused to pay. He paid his taxes, except a special tax levied upon the taxable property of said township, to pay $7,000 which the township had agreed to pay C. C. Bassett and Henry for services as attorneys at law in certain cases against Bates county, on bonds issued by said township to a certain railroad company. It is the special tax which the plaintiff resists.

1. TOWNSHIP ORGANIZATION: taxes.

It appears from the evidence of the county clerk, who was introduced as a witness by the defendant, that this special tax in question was not upon the original tax-books, as made out and delivered by the county clerk to the collector of Mt. Pleasant township as authorized and required by section 17 of article 15 of the session acts of 24th of March, 1873, and by virtue of which the defendant justified said taking of said mare. It also appeared by the testimony of said clerk, that in pursuance of an order of the township board of Mt. Pleasant township, he added the special tax to said tax-books for said township on the 7th day of June, 1876, sometime after they had been originally placed in the hands of said collector as his authority for collecting said taxes.

By section 15 of article 15 of the Township Organization Act, which was then in force in said county, the county court of said county, at its April term in each year, was required to examine the assessment rolls of the several townships in the county, for the purpose of equalizing the valuation in the several townships, and to correct the several lists, if necessary, and to fix a certain rate to be levied upon each $100 of taxable property for county purposes, and at the same time to enter upon its records the amount to be collected, in each township, for township purposes. Section 16 required the clerk of the county court, upon receipt of the township assessment lists, to make a copy of them, by townships, and to lay both the copies and originals before the county court at its April meeting in each year, after which he was to cause the taxes to be extended on said copy, and cause the same to be indorsed on the original lists, the amount per cent levied on each $100 worth of property, as taxes thereon. It then provided that the original rolls should remain in his office until the month of March ensuing, when he should deliver them to the clerks of the respective townships, to be filed in their townships. Section 17 made it the duty of the clerk to make out annually, for the use of the township collectors, correct duplicate tax-bills, side by side, in a bound book, of all taxes on all property assessed in the township; and that the tax-bills should set out in alphabetical order the names of the persons owing taxes, the value of such tract or lot of land and the amount of taxes thereon, the aggregate value of the property assessed to each person, and the total amount of taxes due thereon,...