Ranney v. Bader

• Decision Date: 30 April 1878
• Citation: 67 Mo. 476
• Parties: RANNEY, Plaintiff in Error, v. BADER.
• Court: Missouri Supreme Court

67 Mo. 476

RANNEY, Plaintiff in Error,

v.BADER.

Supreme Court of Missouri.

April Term, 1878.

Error to Cape Girardeau Circuit Court.--HON. D. L. HaWKINS, Judge.

Louis Houck for plaintiff in error.

Lewis Brown for defendant in error.

NORTON, J.

This suit was instituted in the circuit court of Cape Girardeau county, to recover the sum of $67, which it is alleged the defendant, as sheriff and collector of said county, had collected from plaintiff by coercion, the same having been levied on his real estate situated in the township of Cape Girardeau, in said county, as a special tax, to be applied to the payment of interest on certain railroad bonds issued by said county on behalf of said township to the Cape Girardeau & State Line Railroad. It is also alleged in the petition that all the proceedings of the county court in levying the said tax and issuing the bonds were without authority of law and void. The defendant admits in his answer the collection of the sum sued for, and sets up, by way of justification, that the bonds for the payment of the interest on which the tax was levied, were valid and lawful, and that the tax was assessed according to law. The principal recitals of the answer may be found in the case of Ranney v. Bader, 50 Mo. 600. All allegations of the answer were denied by replication, and a trial was had, resulting in a judgment for defendant, from which plaintiff has prosecuted his writ of error to this court. The various objections made to the reception of evidence, and the giving and refusing instructions during the progress of the trial, present but two questions for our determination. 1st. Were the bonds out of which the interest originated, and for the payment of which interest the tax was levied and collected, issued by authority of law? 2nd. If issued without any lawful authority, can the plaintiff recover for the enforced payment of the taxes assessed and levied to pay the interest on them?

1. THE TOWNSHIP RAILROAD AID ACT.

1. The bonds out of which the present controversy arose, were issued by the county court of Cape Girardeau county, on behalf of Cape Girardeau township in said county, under the act of March

23rd, 1868, (Acts 1868, p. 92). The evidence introduced on the trial shows that there were 619 registered and qualified voters in said township, and that at the election held for the purpose of testing the willingness of the people of said township to subscribe $150,000 of stock for the purpose of constructing a railroad commencing at the city of Cape Girardeau, running in a southwest direction to some desirable point on the State line, only 376 votes were cast in favor of the subscription, which lacked 36 votes of being two-thirds of the qualified voters of said township. The first question presented must, therefore, under the authority of the cases of the State ex rel. Woodson v. Brassfield et al., and Webb v. Lafayette County, 67 Mo. 331, 67 Mo. 353, be answered in the negative.

2. ILLEGAL TAXES: tax-payer's remedy.

2. The bonds being void because they were issued without authority of law, it, therefore, follows that the tax levied to pay the interest on them was illegal. While this is so it does not follow that the defendant, who as collector enforced its payment, is liable to be sued therefor. In the case of Rubey v. Shain, 54 Mo. 207, it was expressly held that the collector who had collected taxes which had been assessed for the purpose of paying interest on an illegal and void subscription made to a railroad company by the county court, was not liable in an action brought against him by a tax-payer to recover back the amount of tax so collected from him. This case is not deemed to be in conflict with those which decide that a tax collector is held to the same degree of responsibility which attaches to sheriffs and constables, nor with the cases of State to use, &c. v. Shacklett, 37 Mo. 280, and Glasgow v. Rowse, 43 Mo. 489, in which the collectors were held liable on the ground that the property taxed was not subject to taxation, and that the illegality of the tax was apparent on the face of the tax-books placed in the hands of the collector, and disclosed the fact that no jurisdiction existed to levy the tax. While not in conflict with the principle announced in those cases, it is in harmony with that announced in the case of St. Louis Mutual Life Ins. Co. v. Charles, 47 Mo. 466, where it was held that the collector need only inquire whether the assessor had jurisdiction over the property, that is, whether it was taxable in any form, and he need not trouble himself about the regularity of the proceedings. If the tax-list shows jurisdiction, he is protected. “It was the collector's duty to collect the tax, unless the assessment was void, and it could not be said to be void if the property was subject to taxation.” It was also held in case of N. M. R. R. Co. v. McGuire, 49 Mo. 483, that when the property is liable to be taxed in any form, though irregularly assessed, the collector would not be liable to the tax-payer for the amount collected. In the case of Rubey v. Shain, ...