Morrison v. St. Louis, Iron Mountain & Southern Railway Co.
| Decision Date | 12 November 1888 |
| Citation | 9 S.W. 626,96 Mo. 602 |
| Parties | Morrison v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied 96 Mo. 602 at 610.
Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner Judge.
Affirmed.
Bennett Pike for appellant.
(1) The alleged statement of taxes by the county clerk of Wayne county, under and by virtue of which the sale of the engine in controversy took place, was illegal and void and conferred no authority upon the collector of said county to sell the said engine, and the admission of the same evidence by the court below was erroneous. (a) Because section 3 of the act of April 14, 1877, was not enacted in accordance with section 34 of the fourth article of the constitution. Laws 1877, p 362; Laws 1875, p. 124; Bridge Co. v. Olmstead, 41 Ala. 9, et seq. (b) Said statement was invalid because the rate of taxes levied for the years therein mentioned, was void. State ex rel. v. Trust Co., 68 Mo. 463. (c) Said statement was void because it showed no legal levy thereon, by said collector in his return of his proceedings thereunder. (d) Said statement was invalid, as final process in the hands of said collector of the said delinquent taxes and penalties, as said section 3 of the act of 1877 could not and did not confer any authority upon said collector to impose or enforce penalties in addition to said taxes by virtue of said statement. Scammon v. Chicago, 44 Ill. 269, 278. (2) If said statement issued by the county clerk of Wayne county was regular on its face, yet if it was invalid in fact, -- a seizure and sale of personal property under and by virtue thereof could not become the foundation of a right to or of property in any one. Cooley on Tax. 563; Earl v. Camp, 16 Wend. 562; Beach v. Botsford, 2 Doug. [Mich.] 199; Leroy v. East Saginaw, 18 Mich. 239.
Frank M. Estes and Dinning & Byrns for respondents.
(1) The precept of the clerk was valid. (2) The county court had power to grant leave to the collector to make an amended return. Kitchen v. Reinsky, 42 Mo. 427; Wright's Appeal, 25 Pa. 373; Dunn v. Rodgers, 43 Ill. 260. (3) The purchaser at a sale acquires title, whether a return by the officer be made or not. Freeman on Ex., section 341; Buchanan v. Tracy, 45 Mo. 437. (4) Section 3 of the act of April 14, 1877, is constitutional. Mayor v. Trigg, 46 Mo. 288; State v. Chambers, 70 Mo. 626. (5) It is the policy of the law to uphold judicial sales. Hewitt v. Weatherby, 57 Mo. 276; Jones v. Manley, 58 Mo. 559; Reegle v. Webster, 55 Mo. 246.
Black, J. Ray, J., absent. Sherwood, J., took no part in the disposition of this case.
The plaintiff recovered a judgment against the defendant for five thousand dollars for converting a locomotive engine, the property of the plaintiff, to its own use, and the defendant appealed.
The record shows that on the seventh of December, 1877, the clerk of the county court of Wayne county made out and delivered to the collector of the county a statement of delinquent taxes due by the defendant for the years 1875 and 1876. By virtue of this statement the collector levied upon and sold the engine at public vendue to the plaintiff for two hundred dollars. The sale was made on the twenty-fourth of December, 1877, and on the second of January, 1878, the defendant paid the collector an additional sum of $ 6934.46. The collector made return of his proceedings on the statement. Afterwards, and in August, 1883, he procured of the county court leave to, and pursuant thereto, amended his return by stating in more detail the facts relating to the levy upon and sale of the engine.
No instructions were asked or given on the trial of this cause and the questions presented for our consideration relate to the validity of the process by which the collector sold the engine.
It may be stated here as a part of the history of this case, that the taxes for 1875 were readjusted by the county court within ten days after they were first levied, on motion of the defendant, and the record of that court recites that defendant's attorney accepted said readjustment. After the sale and the credit of the payment made by the defendant, there still remained a considerable sum due to the county, according to the statement issued by the county clerk to the collector; and in a suit by the county to recover this balance, there was a finding and judgment for defendant. The plaintiff was no party to that suit and he is, therefore, in no way affected by the result.
1. The clerk's statement, by virtue of which the collector sold the engine, was made out by authority of section 3 of the act of April 14, 1877 (Acts of 1877, p. 362), and the first contention is, that that act does not comply with section 34 of article 4 of the constitution, and is, therefore, void. The constitution provides: "No act shall be amended by providing that designated words thereof be stricken out, or that designated words be inserted, or that designated words be stricken out and others inserted in lieu thereof; but the words to be stricken out, or the words to be inserted, or the words to be stricken out and those inserted in lieu thereof, together with the act or section amended, shall be set forth in full as amended."
The act of 1877 purports to amend sections 7, 10 and 17 of the act of March 15, 1875. The third section of the amendatory act says: "Section 3. Section 17 of said act is hereby amended so as to read as follows:" The whole section, as amended, is then set out in full. Under this constitutional provision, it is quite common for the legislature to first state that certain words of a specific section are stricken out and others inserted, and then set out in full the section as amended, but the constitution makes no such requirement. In former times, a practice had grown up of amending an act, or a section of an act, simply by saying that designated words were stricken out, or that they were stricken out and others inserted, leaving it to the reader to examine both acts and make the erasure and substitution. This practice the constitution prohibits, and when a section of an existing statute is amended, the sections, as amended, must be set out in full; nothing more is required. In the present case the section as amended, is set out in full in strict compliance with the constitution, and so we have before held. State v. Chambers, 70 Mo. 625.
2. The next point made is that the taxes charged as being delinquent for the years 1875 and 1876 were levied for the wrong years; that the levies should have been those made on other property for what in general is known as the tax years 1876 and 1877. This objection was made and overruled when the clerk's statement or precept was offered in evidence, but it will be considered in the light of the other evidence, and it will only be necessary to consider the year 1875, for the considerations which apply to one year apply to the other.
The precept sets forth the delinquent taxes owing by the defendant, "for the year 1875," giving the amounts due to the several funds, and then states: "That the total amount of delinquent taxes remaining due and unpaid, from said company to said funds of said county for said year 1875, is $ 5,417.50."
The records of the state board of equalization show that the board met May 9, 1876, pursuant to the act of March 15, 1875 and by authority of section 18, article 10, of the constitution of the state of Missouri, for the purpose of assessing, adjusting and equalizing the valuation of the railroad property in this state for the year 1875, and that it assessed the property owned by defendant on the first day of August, 1875. On the twentieth of January, 1876, the state auditor certified this assessment of railroad property to the clerk of the county court, and, in his certificate, he...
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