State ex rel. Gordon v. Hopkins

• Decision Date: 31 October 1885
• Citation: 87 Mo. 519
• Parties: THE STATE ex rel. GORDON, Collector, v. HOPKINS et al., Appellants.
• Court: Missouri Supreme Court

87 Mo. 519

THE STATE ex rel. GORDON, Collector,

v.HOPKINS et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Clair Circuit Court.--HON. CHAS. G. BURTON, Judge.

REVERSED.

Johnson & Lucas for appellants.

A forcible and cogent reason indicating that the legislature intended that courts of record should exercise jurisdiction in back tax suits is found in the repeal of sections 194, 204 and 219, of the revenue act of 1872, and the adoption of section 6837, Revised Statutes, 1879, which requires the action to be brought against the owner of the land. What could have been the object of this provision, other than to require the state to so institute its action that no judgment could be recovered until it made manifest the fact that the defendant--the owner of the land--had no defence against the demand of the state, and what could have remedied the evil more certainly than for the purchaser at the tax sale to know that a court of record had solemnly declared that the defendant was the owner of the property, and that no defence could be offered to the title conveyed by such sale. Would the title be brought in question? See authorities cited by the court in the opinion, and Brooks v. Dalrymple, 1 Mich. 145. It is, however, contended that by the words, “which said court shall have jurisdiction without regard to the amount sued for,” that the legislative intent is made plain, we submit that this language is shown by the journal of the house to have in its inception been applied to circuit courts alone. But counsel for respondent further cite section 7, act 1877, section 4, act 1879, section 12, act 1879, and claim that these acts indicate legislative intent. We unhesitatingly affirm that they do not indicate intent, but construction. As to legislative construction, see Governor v. Porter, 5 Ham. (Tenn.) 169; Lafayette ex rel. v. Knowlton, 2 Chand. (Wis.) 219; Tilford v. Rainey, 43 Mo. 419; Pitman v. Adams, 44 Mo. 585. Against the conjectural theory of intention, urged by counsel for respondent, we submit that jurisdiction cannot be conferred by implication. See authorities cited in opinion of court. Also, Spear v. Carter, 1 Mich. 19. As to the rule of stare decisis, see State v. Miller, 50 Mo. 129; Long v. Long, 79 Mo. 656; Johnson v. Cass Co., 95 U. S. 369; Church v. Brown, 21 N. Y. 334; Smith v. Henry, 2 Eng. (Ark.) 207; Frink v. Dark, 14 Ill. 310.

E. J. Smith and W. P. Sheldon for respondent.

(1) It is settled that justices of the peace have jurisdiction to render judgments for the enforcement of the state's lien for back taxes. Van Brown v. Van Avery, 75 Mo. 530; State ex rel. Petts v. Staley, 76 Mo. 158. The point that no jurisdiction was acquired over defendant, Hopkins, is not well taken. There is no local jurisdiction of a justice of the peace in tax cases, save that it must be a court of the county where the land lies. R. S., sec. 6836. The order of publication against Woodbury was proper. Sec. 6836, supra; Jackson v. Wood, not reported; 75 Mo. 530; 76 Mo. 158. (2) Whether the order of publication was properly made or not cannot be raised collaterally on a motion to quash execution. Phillips v. Evans, 64 Mo. 17. The same may be said of the point raised, that the assessment books were not verified. (3) In any event, the overruling of the motion to quash was correct, because the execution was not within the control of the circuit court.

Thos. T. Gantt, A. & J. F. Lee, D. H. McIntyre, and Dinning & Byrns also for respondent.

NORTON, J.

This is an action instituted by respondent against appellants, before one J. Wade Gardner, a justice of the peace, for the enforcement of an alleged lien of the state for taxes, alleged to be due for the years 1873, 1874, 1876, 1878, 1879, and 1881, on lot thirteen (13), block fifteen (15), town of Appleton City, St. Clair county, Missouri. At the time of the institution of said action, the defendant, John R. Hopkins, resided in Appleton township, in said county, which was not an adjoining township to that of Osceola, in which Justice Gardner resided, and the defendant, Woodbury, permanently resided in the City of Kansas, in the county of Jackson, which facts were known at the time to the respondent, his counsel, the court, and the officer to whom the process was directed. The constable returned said process served on the defendant, Hopkins, in Appleton township, St. Clair county, and returned the defendant, Woodbury, not found; whereupon the justice issued an order of publication for the defendant, Woodbury, which was duly published.

On the return day of the order of publication, the justice rendered judgment and thereafter filed transcript in the office of the clerk of circuit court, on which execution was issued and delivered to sheriff of said county, who advertised same for sale at September term, 1883, of said county, at which term appellants filed their motion to quash, and showed all the facts herein to the court, St. Clair county being governed by the township law from July 1, 1872, to August, 1877, the agreed statement of facts being as follows:

“1. That on the twentieth day of August, 1883, the relator recovered before J. Wade Gardner, a justice of the peace of Osceola township, St. Clair county, Missouri, a judgment by default against defendants enforcing the lien of the state for taxes due for the years 1873, 1874, 1876, 1878, 1879, and 1881, on lot thirteen (13), block fifteen (15), town of Appleton City, St. Clair county, Missouri. 2. That service was had on the defendants, as follows: On the defendant, John R. Hopkins, by reading a copy of the writ to him in Appleton township, in said county; on the defendant, Frank H. Woodbury, by order of publication, summons having first been returned non est, and the justice finding and entering of record, that he is satisfied that the summons cannot be served on said defendant, Woodbury. 3. That at the time of the institution of said action, and ever since, the defendant, John R. Hopkins, resided in Appleton township, in said county, and the defendant, Frank H. Woodbury, in the county of Jackson, in the state of Missouri; that Appleton township does not adjoin Osceola township. 4. That for the years 1873, 1874 and 1876, the assessment rolls are not verified by the assessor, as required by law. 5. That no affidavit of non-residence was ever filed against Woodbury.”

The trial court overruled the motion to quash the execution, and entered judgment accordingly, from which defendants have appealed. The controlling question which the record presents is this: Have justices of the peace jurisdiction, that is, the power to hear and determine suits brought to enforce the state's lien for unpaid back taxes? Before such a power can be affirmed to exist it must be made to appear that the law has given such officers the capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has been preferred, and that such person or thing has been properly brought before the court or tribunal to answer the charge therein contained. Gray v. Bowles, 74 Mo. 419. Justices of the peace, as well as the jurisdiction to be exercised by them in the courts they are authorized to hold, are created and regulated by statute, and they can only exercise such jurisdiction as the law creating them confers, and being inferior courts not exercising jurisdiction according to the course of the common law, they can take nothing by implication. In Wells on Jurisdiction, page 26, section 30, the rule upon this subject is stated as follows: Nothing will be presumed to be without the jurisdiction of a superior court of general jurisdiction, and nothing presumed to be within the jurisdiction of an inferior court having limited or special jurisdiction. In the case of Coil v. Pitman's Adm'r, 46 Mo. 52, this court, in speaking of the jurisdiction of county courts, said “that when the statute has not clearly devolved jurisdiction on the county court, we are not disposed to give it by implication;” and in the case of the State ex rel. v. Shortridge, 56 Mo. 126, in speaking of inferior courts, it is said: “There can be no such thing as an implied power in a county court to levy a tax. The power must be clearly and expressly given by statute;” and in the case of Jefferson County v. Cowan, 54 Mo. 234, it was observed that a more salutary rule does not exist, nor one longer sanctioned by reason, experience and authority than that which circumscribes courts of limited powers and statutory origin within the confines of the statute which gives them being, and pronounces all their acts void which overstep the narrow boundary.

In Jones & Crawford v. Reed, 1 Johnson Cases, 20, in treating this question, it is said: “It is a clear and salutary principle that inferior jurisdictions, not proceeding according to the course of the common law, are confined strictly to the authority given them. They can take nothing by implication, but must show the power expressly given them in every instance.” To the same effect are the following cases: Thompson v. Cox, 8 Jones (N. C.) 311; Board, etc., v. The People, 20 Ill. 525; Downing v. Florer, 4 Col. 209; Ford v. Babcock, 1 Denio, 158.

It follows, therefore, from what has been said, that unless it can be shown otherwise than by implication that justices of the peace have been invested with jurisdiction over suits for the enforcement of the state's lien for unpaid back taxes, that a negative answer must be returned to the question which this record presents. It is claimed by the attorney-general that jurisdiction in such cases is given to justices of the peace by section 6836, Revised Statutes. This section was enacted in 1879, as an amendment to section 5, acts 1877, page 386, which former section is as follows: “If on the first day of January, 1878, any of said lands or town lots contained in said ‘back tax book’ remain unredeemed, it shall be the duty of the collector...