State ex rel. Brown v. Shepherd

• Decision Date: 31 October 1881
• Parties: THE STATE ex rel. VAN BROWN v. SHEPHERD, Appellant.
• Court: Missouri Supreme Court

74 Mo. 310

THE STATE ex rel. VAN BROWN

v.SHEPHERD, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Hannibal Common Pleas Court.--HON. T. BRACE, Judge.

AFFIRMED.

Thomas H. Bacon for appellant.

T. S. Howell for respondent.

NORTON, J.

This suit was instituted in the Hannibal court of common pleas on March 8, 1880, against the appellant as the owner of a part of a lot in the city of Hannibal described as twenty feet on Broadway by sixty-five and one-half feet, beginning twenty-two feet east of Third street, and a part of lot 8 in block number 12, to recover back taxes due the city for the years 1874, 1875 and 1876, assessed against Thomas H. Branham as the then owner of said ground. The taxes are denominated severally as the general tax, compromise tax, special tax, floating debt tax and judgment tax. The action is in the name of the State of Missouri, at the relation and to the use of the collector of the city. The answer was a general denial, and new matter pleaded. Reply to new matter pleaded, and trial on these pleadings, and judgment for plaintiff for the several amounts of taxes claimed, amounting in the aggregate to $194.65, with ten per cent interest per annum thereon from January 1st, 1877, and costs of suit. Motion in arrest of judgment on the single ground that the petition does not state facts sufficient to constitute a cause of action. Overruled, and cause brought to this court by appeal.

1. CITY OF HANNIBAL: collection of city taxes: repeal of statute.

The action in this case was brought under the delinquent tax law of 1879, and it is insisted by defendant's counsel that said law did not apply to the city of Hannibal, because the charter of said city provided a special lien for city taxes, and divested the State of any lien for such taxes which it might have had under previous laws. It seems to be conceded by counsel, and if it were not so conceded, we should hold, that section 182, page 119, of the Acts of 1872, gave to the State a lien for all taxes on real estate due any city or incorporated town or school district, and that such lien was to be enforced as in that act and the subsequent acts of 1877 and 1879 was provided. It is, however, contended by counsel that the charter of the city of Hannibal, (Acts 1873, p. 253, § 1,) which provides: “That all taxes levied by the mayor and city council shall be a lien on the real estate on which the same may be imposed, and said lien shall continue till the taxes are paid”--and section 4, Acts 1873, page 254, which provides: “That the city council shall have power to cause real estate to be sold for delinquent taxes in such manner as may be provided by ordinance, and to provide for the redemption thereof in such manner as shall not be inconsistent with the laws of the State,” operate as a repeal of section 182, supra, Acts 1872, as well as section 178 of the same act.

Before the act of 1873, consolidating into one act the various acts in relation to the charter of the city of Hannibal can have the force credited to it by counsel, it must appear either that the act of 1872, so far as it related to the city of Hannibal, was expressly repealed, or that it was repealed by necessary implication on account of some irreconcilable repugnancy or inconsistency between the two acts. It is clear that the act of 1873 does not directly, and in express terms, repeal any part of the act of 1872, and it is not contended that it does; but it is contended that a repeal of section 182, of the act of 1872, is effected by virtue of the 5th section of the act of 1873, which reads “that all acts and parts of acts contrary to and inconsistent with the provisions of this act, or within the purview thereof, are hereby repealed.” The inconsistency between section 182, of the act of 1872, and the act of 1873, is said to appear in section 1, supra, of the act of 1873, which declares that taxes levied by the mayor and council shall be a lien on the real estate on which they are imposed, and that the city council shall have power to cause real estate to be sold for such taxes, and to...