Little River Drainage Dist. v. Houck
| Decision Date | 07 December 1920 |
| Docket Number | No. 17096.,17096. |
| Citation | 226 S.W. 72,206 Mo. App. 283 |
| Parties | LITTLE RIVER DRAINAGE DIST. v. HOUCK et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.
Suit by the Little River Drainage District against Louis Houck and another. Judgment for plaintiff, and defendants appeal. Affirmed.
See, also, 222 S. W. 384.
A. M. Spradling and Giboney Houck, both of Cape Girardeau, for appellants.
Oliver & Oliver, of Cape Girardeau, for respondent.
This is a suit to foreclose an alleged lien on certain premises described in plaintiff's petition, for special taxes levied by plaintiff upon the real estate therein described, and for interest, costs, and attorney's fees. The taxes on account of which it is alleged the lien exists were levied by virtue of the provisions of section 5538, R. S. 1909. After judgment for plaintiff, defendants appealed to the Supreme Court, on account of certain constitutional questions being involved. The Supreme Court transferred the case to this court to be decided upon its merits. See Little River Drainage District v. Houck et al. (Sup.) 222 S. W. 384.
The only question involved in this case as it reaches us is whether or not a tax levied pursuant to section 5338, R. S. 1909, becomes a lien against the real estate on which the tax is assessed.
Appellants' contention is that no provision is made in section 5538 declaring such tax to be a lien, and that there are no other provisions in the statutes creating a lien for the tax levied pursuant to this section; that section 5523, declaring the drainage tax constitutes a lien, refers to the drainage tax described in section 5519. Section 5538 appears for the first time and became a law by an act of the Legislature approved June 1, 1909. Laws of 1909, p. 628. This act contains six sections, designated as sections 1, 8263r, 8263s, 8263t, 8263u, and 8263v. The title as well as section 1 of this act states that it is an act to amend the act of 1905 (Laws of 1905, p. 190) by adding the sections above enumerated to those contained in the act of 1905 aforesaid. Section 8263u of the act of 1909 is section 5538, R. S. 1909. It will be seen, therefore, that the entire act of 1909 was an amendment of the act of 1905, and section 5538 became a part of that act as an amendment. This section, standing alone, makes no provision for creating such a lien or collecting the taxes.
Tax liens are created only by statute, and the intention of the Legislature to create such must clearly appear; otherwise no lien will exist. It becomes necessary, therefore, to refer to other provisions of the statute to see whether or not such a lien exists in this case. The lien described in section 5523 refers specifically to the tax described in section 5519, which is not the tax provided for by section 5538. However, an examination of section 5524, which was section 8263g of the act of 1905 above mentioned, provides therein, among other things, as follows:
"The pleadings, process, proceedings, practice and sales, in cases arising under this article and section shall, except as herein provided, be the same as in an action for the enforcement of the state's lien for the delinquent general taxes upon real estate."
It also provides that all sheriff's deeds delivered pursuant to this article shall have the same probative force as sheriff's deeds executed under judgments for delinquent state taxes. The Legislature evidently intended by the language used in this section to make all taxes levied pursuant to this article a lien upon the real estate, the same as general taxes; otherwise the act of the Legislature in enacting section 5538 would amount to a mere nullity, because the assessment created no personal charge against the owner, and could be enforced only against the real estate. State ex rel. v. Angert, 127 Mo. 456, 30 S. W. 118.
In the case above cited (127 Mo. loc. cit. 463, 30 S. W. 120), where a question somewhat similar to the one before us was being discussed, the court say:
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