State ex rel. Brumbaugh v. Kansas City, St. Joseph and Council Bluffs Railroad Company

• Decision Date: 23 May 1899
• Citation: 51 S.W. 479,149 Mo. 635
• Parties: State ex rel. Brumbaugh, Collector of Holt County, v. Kansas City, St. Joseph and Council Bluffs Railroad Company, Appellant
• Court: Missouri Supreme Court

51 S.W. 479

149 Mo. 635

State ex rel. Brumbaugh, Collector of Holt County, v. Kansas City, St. Joseph and Council Bluffs Railroad Company, Appellant

Supreme Court of Missouri, Second Division

May 23, 1899

Appeal from Holt Circuit Court. -- Hon. Cyrus A. Anthony, Judge.

Reversed.

Spencer & Mosman for appellant.

(1) The court committed error in failing to render judgment for the appellant, on finding that the levy of the county court was fatally defective. The trial court, in its subsequent action arrogated to itself duties which the law cast on the county court, and which the circuit court had no power to exercise. R. S. 1889, secs, 7731 and 7732; City v. Railroad, 81 Mo. 293; Railroad v. Apperson, 97 Mo. 306; Brown v. Harris, 52 Mo. 306; State ex rel. v Railroad, 110 Mo. 265; State ex rel. v Railroad, 82 Mo. 239; State ex rel. v. Shortridge, 56 Mo. 126; Carondelet v. Picot, 38 Mo. 130; Railroad v. Cass Co., 53 Mo. 17; Henry v. Bell, 75 Mo. 194; Higgins v. Ausmuss, 77 Mo. 251. The circuit court was bound to exercise its powers in conformity to the well recognized method of procedure in common law courts. It should either have rendered a judgment on the cause of action stated in favor of the plaintiff, or it should have found for the defendant. This has always been the procedure in this State. No trial court ever before attempted to levy a tax. State ex rel. v. Railroad, 83 Mo. 395; State ex rel. v. Wabash, 114 Mo. 1; State ex rel. v. Schooley, 84 Mo. 447; State ex rel. v. Cook, 82 Mo. 185; State ex rel. v. Phillips, 102 Mo. 664; State ex rel. v. Railroad, 117 Mo. 12; State ex rel. v. Railroad, 135 Mo. 77. (2) The school estimates were neither competent nor sufficient, as evidence, to establish the existence of the facts authorizing the levy of the tax for the erection of public buildings, or the tax for the interest, or the sinking fund. The law requires the plaintiff in a tax suit to establish his right to recover by proving that every essential prerequisite of the statute has been complied with. Lagrue v. Raines, 48 Mo. 536; Howard v. Heck, 88 Mo. 461; Yankee v. Thompson, 51 Mo. 237; Reed v. Morton, 9 Mo. 885; State ex rel. v. Railroad, 87 Mo. 236; Railroad v. Apperson, 97 Mo. 300; State ex rel. v. Railroad, 117 Mo. 12. Fifteen days' notice must be proven to make a building tax valid. State ex rel. v. Railroad, 75 Mo. 526. The exhibition of the tax book in evidence will not establish the validity of the tax. It must be accompanied by the other records showing a compliance with the statutory requirements. State ex rel. v. Mantz, 62 Mo. 258; Morton v. Reid, 6 Mo. 73; Williamson v. Payton, 4 Wheat. 77; Washington County v. Railroad, 58 Mo. 372; Reed v. Morton, 9 Mo. 885. (3) The court had no jurisdiction to render the judgment in this case. The only theory on which the court could entertain the action was, that the State had a lien which could be enforced by its judgment, as there could be no lien in favor of the State in respect to the tax which the trial court levied there was nothing for the court to do. State ex rel. v. Snyder, 139 Mo. 555.

S. F. O'Fallon and G. W. Murphy for respondent.

(1) This was not a "levy made by the wrong tribunal," as argued by appellant, nor was it "arrogating to itself the duties the law casts on the county court" on the part of the circuit court. The finding of the court, as set out in its judgment, is essentially: That there was still due from defendant company for the year 1893, $ 111.29; that the rate levied by the county court be so reduced that it would produce this amount; to which was added the interest, commissions and costs. That for the year 1894 there was still due from said company $ 300.41, which was apportioned as before, to which also was added commissions, interest and costs. This was not a new levy by the circuit court, but a revision of the action of the county court. We contend that the tax for the "erection of public buildings," covered the "building tax," for which suit was brought. Appellant's contention on this point is untenable. (2) Instruction number nine asked by the defendant was properly refused. The court had a right to review the work of the county court since it has appellate jurisdiction "over all orders and judgments of the county court." R. S. 1889, secs. 3318, 3434, 7658. The right of appeal from orders and judgments of county courts exist by law in revenue cases as well as others, and on appeal they are subject to correction. Coleman v. Farrar, 112 Mo. 72; State ex rel. v. Powers, 68 Mo. 320; State ex rel. v. Dowling, 50 Mo. 134; Pease v. Chicago, 21 Ill. 500. (3) A tax levy containing illegal items will not be invalid if so made that the part which is legal can be separated from that which is illegal. State ex rel. v. Railroad, 135 Mo. 618; Ex parte Bridge Company, 36 S.W. 1060; 25 Am. and Eng. Ency. of Law, 191; DeFremery v. Austin, 53 Cal. 389; Stokes v. Geddings, 46 Cal. 17; Jones v. Giles, 45 Cal. 541; Railroad v. York Co., 7 Neb. 487; Vance v. Little Rock, 30 Ark. 435; Hurley v. Powell, 31 Ia. 64; Taff v. Barrett, 58 N.H. 447; Mix v. People, 72 Ill. 241; Law v. People, 87 Ill. 385; Elkhart v. Wickwire, 121 Ind. 331; Loesnitz v. Seeslinger, 127 Ind. 422; Kinsella v. Auburn, 7 N.Y.S. 634. (4) The action of the circuit court was in the nature of a remission of the tax levied in excess of that which was justly due. This was the proper method, and did no injustice. State v. McClurg, N. J. L. 253; Chambers v. Myrick, 61 Miss. 459. (5) The defendant had the right to appeal from the finding of the county court, but did not see fit to do so, but objected to the collection of the tax as levied by the county court in this action by the collector. This action of defendant brought the question properly before the circuit court for review, and the circuit court had the right to give the relief that the county court might have given. Because it did so, the defendant should not be heard to complain.

BURGESS, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

BURGESS, J.

This is an action by the State at the relation of M. C. Brumbaugh, collector of Holt county, against the Kansas City, St. Joseph and Council Bluffs Railroad Company, for unpaid school taxes levied against its property for the years 1893 and 1894.

The case was tried before the court, a jury being waived. The finding and judgment were for defendant as to the school purpose tax, and for plaintiff as to the building tax, including and counting as part of the building fund tax the amount levied for sinking fund and interest purposes, and judgment accordingly.

The judgment is as follows:

"Now at this time this cause coming on to be heard, the parties appear by their respective counsel, and now here plaintiff dismisses this suit as to the taxes claimed in petition as being due upon the property of the Atchison & Nebraska Company; upon the property of the St. Joseph & Nebraska Company; and also as to all taxes claimed to be due to the towns of Bigelow, Mound City and Craig. And now here this cause is submitted to the court by the agreement of the parties, a jury being waived, and the court having heard the evidence and arguments of counsel and being fully advised in the premises doth find for the defendant as to the school purpose taxes, and finds that the aggregate of the rates levied by the various districts in Holt county for the year 1893 for building purposes was $ 1.89; that the whole number of school districts in the county was 74; that the average rate found by dividing the sum of $ 1.89 by 74 was .0255; that the aggregate value of the property of the defendant including the Tarkio and Nodaway Valley branches amounts to $ 555,399.13; and that there should be charged against the defendant taxes at said average rate upon the aforesaid valuation, making a tax of $ 141.62 upon which the defendant has paid $ 30.54, leaving still due from the defendant $ 111.29; that the defendant should be charged with interest at the rate of one per cent per month since January, 1894, amounting to $ 22.25, and two per cent commission due the collector, $ 2.67, making said tax, interest and cost aggregated at this time $ 136.21.

"Wherefore it is ordered that plaintiff have and recover for and on account of the building tax for the year 1893, $ 136.21 and his costs in this behalf expended and that execution issue therefor.

"The court doth further find for the defendant as to the school purpose taxes of 1894, and finds that the aggregate of rates levied by the various districts in Holt county for the year 1894 for building purposes was $ 4.11; that there were only seventy-four districts in the county; that the average rate found by dividing $ 4.11 by seventy-four was .0568; that the aggregate value of the property of the defendant, including the Nodaway and Tarkio Valley branches, was $ 585,614.20, and that there should be charged against the defendant taxes at said average rate upon the aforesaid valuation, amounting to a tax of $ 332.62, upon which the defendant has paid $ 32.21, leaving still due from the defendant $ 300.41. That the defendant should be charged with interest at the rate of one per cent per month since January 1, 1895, or $ 24.03, and a collector's commission of two per cent, or $ 6.48, making said tax, interest and cost aggregate now $ 331.92.

"Wherefore it is ordered by the court that plaintiff have and recover, for and on account of the building tax of the year 1894, the sum of $ 331.92 and his costs in this behalf expended, and have therefor execution.

"It is further ordered that said two sums bear interest at the rate of one per cent a month until paid, and there is hereby taxed an attorney's fee of $ 46 in favor of the plaintiff's attorneys, the same to be taxed and...