McPike v. Pen
| Decision Date | 31 October 1872 |
| Citation | 51 Mo. 63 |
| Parties | BENJAMIN F. MCPIKE et al., Appellants, v. REUBEN C. PEN, SHERIFF, ETC., et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from Pike Circuit Court.
Fagg & Dyer, for appellants.
Caldwell & Biggs, for respondents.
In pursuance of the provisions of the act of March 15, 1870 (Wagn. Stat. 2d ed., 321 a), the County Court of Pike County directed a special election to be held in the township of Ashley, upon a proposition to subscribe $8,000 to the capital stock of the La. & M. Plank or Macadamized Road Company, and after the election appointed a special commission to subscribe for the stock, and assessed a special tax to pay for the same. The sheriff, as tax collector, has made a levy upon the real estate of the plaintiff to pay the amount assessed against his property, and this is a proceeding to enjoin him from selling the same.
The question first arises whether injunction will lie, as the defendant objects to the remedy as now sought, and cites Drake v. Jones, 27 Mo. 428, and Kuhn v. McNeil, 47 Mo. 389. In these cases it was held that a sheriff will not be enjoined from selling lands upon common execution; but the court has uniformly enjoined the sale of lands for the payment of taxes, upon the ground that a cloud is thereby cast upon the title, although the assessment was illegal. (Lockwood v. St. Louis, 24 Mo. 20; Fowler v. St. Joseph, 37 Mo. 228; Leslie v. St. Louis, 47 Mo. 474.)
The plaintiff bases his equity upon the grounds: first, that the proceedings under which the stock was subscribed were so irregular as to vitiate the assessment of the tax; and, secondly, that the collector had no right to collect it by levy upon real estate.
1. I will only consider one of the irregularities complained of, which is that the order for the special election made by the County Court provided for no notice of the election, and that no sufficient notice was in fact given. The statute provides that, upon the proper petition, it shall be the duty of the County Court to “order an election to be held in such townships,” etc., “to determine if such subscription or appropriation shall be made, which election shall be conducted and returns made in accordance with the general election law.” Nothing is said in relation to the notice, but we cannot hence infer that no notice is necessary. I cannot conceive of an election, at least unless it is fixed by law, without notice to the electors both of the time and manner in regard to which they are called upon to vote. And although the act is silent upon this subject, we must assume either that the obligation to direct a proper...
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