Robins v. Latham

• Decision Date: 02 June 1896
• Citation: 36 S.W. 33,134 Mo. 466
• Parties: ROBINS v. LATHAM, County Treasurer.
• Court: Missouri Supreme Court

36 S.W. 33

134 Mo. 466

ROBINS v. LATHAM, County Treasurer.

Supreme Court of Missouri, Division No. 2.

June 2, 1896.

INJUNCTION — DISBURSEMENT OF TAXES — PAYMENT — TAXES — DURESS.

1. A petition by a taxpayer to enjoin the disbursement of a tax, on the ground that the proceedings by which it was levied and collected were invalid, must show the amount of

the tax paid by petitioner, as, to entitle him to an injunction, he must show substantial damage.

2. To entitle a taxpayer to recover taxes alleged to have been paid under duress, the fact that the taxpayer, at the time he paid them, stated that he paid under protest, is insufficient. He must show a payment to escape either arrest or seizure of his property.

Appeal from circuit court, New Madrid county; H. C. Riley, Judge.

Action by James M. Robins against H. C. Latham, county treasurer of New Madrid county. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Robt. Rutledge and W. H. Miller, for appellant. R. B. Oliver, for respondent.

BURGESS, J.

This is an appeal from the judgment of the circuit court of New Madrid county sustaining a general demurrer to plaintiff's petition. Omitting the caption, the petition is as follows:

"The plaintiff herein, first having obtained leave of court, filed this, his amended petition, and for cause of action says that he sues for himself and others similarly situated within the limits of the territory hereinafter designated. For their cause of action these plaintiffs say that, at the August term, 1892, of the county court of New Madrid county, Missouri, there was presented to the county court as aforesaid a petition, as plaintiff is informed and believes, asking that the township of Lessieur and Portage in said county be formed into a levee district, in conformity with the provisions of section 6669 of the Revised Statutes of 1889. That said petition was fatally defective, and conferred on said court no jurisdiction to act, in that it was not signed by a majority of the taxpaying citizens of said township; in that there was no notice given of the intention to present said petition, as by law required; and in that the territory sought to be organized into a levee district was not composed of overflowed or submerged real estate. That, upon the presentation of said pretended petition, as aforesaid, and without notice to the parties in interest, the county court, while without jurisdiction to act in that behalf, pretended and attempted to, by its order of record, organize said territory into a levee district. That said pretended order is void and of no effect, for the reason that said court had no jurisdiction to act in the premises. That by said pretended order the county court, as aforesaid, designated and attempted to appoint J. J. Williams, John C. Huffman, and J. F. Girvin a board of directors for said pretended levee district. That said levee board so designated and appointed were without any authority in law to act, and all its pretended acts were in law void and of no effect. That, notwithstanding it had no legal existence or authority in that behalf to act, the said pretended levee board, so as aforesaid created and appointed, undertook to levy a tax of two and one-half mills on the dollar on all of the taxable property within the territorial limits aforesaid, to defray the expenses of a survey or pretended survey. That, in pursuance of said illegal and void action of said pretended board, the clerk of the county court of New Madrid county, as aforesaid, extended on the tax books of said county the levy as aforesaid made. That the collector of the revenue of said county collected the tax so extended, and has covered the fund so collected into the county treasury. That the defendant is the treasurer of said county, and as such acting as the treasurer of said pretended levee district, and in that capacity is now sued. That this plaintiff and others similarly situated paid said tax under protest. That plaintiff is a resident taxpayer of said pretended levee district, and is a large landowner therein. That the great bulk of his realty, and of those in whose behalf this suit is instituted, is not submerged or overflowed land, and cannot, under the law, be included in a levee district. That, notwithstanding this fact, all of their said land, indiscriminately, is included and made to bear a part of the pretended tax, so as aforesaid levied and collected. That said pretended action of the county court and of its creature, the pretended levee board, is void, and in contravention of the provision of section 20, art....