State ex rel. Steed v. Nolte

• Citation: 138 S.W.2d 1016,345 Mo. 1103
• Decision Date: 10 April 1940
• Docket Number: 36990
• Parties: State of Missouri at the relation of Lolah F. Steed, Oreon E. Scott Trustee, and L. Avon Blue, Relators, v. Julius R. Nolte, Judge of the Circuit Court for the Thirteenth Judicial Circuit of the State, and John D. Massey, Collector in and for the City of Clayton
• Court: Missouri Supreme Court

138 S.W.2d 1016

345 Mo. 1103

State of Missouri at the relation of Lolah F. Steed, Oreon E. Scott Trustee, and L. Avon Blue, Relators, v. Julius R. Nolte, Judge of the Circuit Court for the Thirteenth Judicial Circuit of the State, and John D. Massey, Collector in and for the City of Clayton

No. 36990

Supreme Court of Missouri

April 10, 1940

Provisional rule made absolute.

Christian B. Peper for relators.

(1) Prohibition is the proper remedy to restrain a court from assuming judicial power not granted by law. Mo. Const., Art VI, Sec. 3; State ex rel. Karbe v. Bader, 336 Mo 259, 78 S.W.2d 835; State ex rel. Mo. Pac. Ry. Co. v Williams, 221 Mo. 227, 120 S.W. 740. (2) Laws 1939, pages 878, 885, have no reference to the enforcement of delinquent taxes due fourth class cities in St. Louis County, and the Jones-Munger Act, as originally enacted, provides the exclusive method. Sec. 9952, R. S. 1929, as re-enacted by S. B. 94, Laws 1933, p. 429; State ex rel. Blair v. Producers Gravel Co., 111 S.W.2d 524; Secs. 658, 660, R. S. 1929; Secs. 9952A-1-9952A-18, R. S. 1929, as enacted by H. B. 677, Laws 1939, pp. 878-885); Sec. 9953b, R. S. 1929, as re-enacted by S. B. 94, Laws 1933, p. 432; Schlafly v. Baumann, 108 S.W.2d 366; Secs. 6994, 6995, 6996, 9974, R. S. 1929. (3) The city collector of such cities could in no event maintain such suits, since delinquent taxes due fourth class cities are required to be certified to the county collector for enforcement. Secs. 9970, 9971, R. S. 1929; Sec. 9970, R. S. 1929, as re-enacted by S. B. 96, Laws 1933, pp. 450-1; Secs. 9952-9952a-9952b-9952c, R. S. 1929, as enacted by S. B. 94, Laws 1933, p. 429; State ex rel. Karbe v. Bader, 336 Mo. 259, 78 S.W.2d 839; Secs. 6994-97, R. S. 1929; Secs. 9952A-1-18, R. S. 1929, as enacted by H. B. 677, Laws 1939, pp. 878-885.

Glen Mohler for respondents.

(1) Respondent Nolte has jurisdiction of the suit in question since by the plain provisions of House Bill 677 all delinquent taxes in St. Louis County, not merely some of them, are to be enforced by suits in courts of competent jurisdiction. The legislative intent to abolish the procedure under the Jones-Munger Act in large centers of population extends to all taxes in such counties including taxes due fourth class cities. Secs. 9952A-1, 2, Laws 1939, p. 878; Hull v. Baumann, 131 S.W.2d 721. (2) The city collector of fourth class cities and not the county collector should bring the suits to enforce delinquent city taxes. Secs. 6995, 6996, R. S. 1929; City of Aurora ex rel. v. Lindsay, 146 Mo. 509; City of Princeton v. Lewis, 256 Mo. 121; State ex rel. v. Bauer, 162 Mo. 660.

Charles E. Altenbernd, Marvin E. Boisseau, Clarence A. Peterson, Morton K. Lange, John A. Nolan and R. Bruce Snow amici curiae.

OPINION

Clark, J.

Original proceeding in prohibition. Respondent, Nolte, is Judge of the Circuit Court of St. Louis County and respondent, Massey, is Collector of the City of Clayton, a city of the fourth class, located in said county. It is conceded that St. Louis County contains more than 200,000 and less than 400,000 inhabitants. Relators are defendants in a suit pending in said circuit court, brought in the name of the State, at the relation and to the use of said Massey as City Collector to enforce the lien of said city for taxes for the years 1936, 1937 and 1938 against certain real estate situate in said city and owned by relators.

Our provisional rule in prohibition was ordered, and respondents entered their appearance, waived issuance of the writ and filed their joint return; whereupon, relators filed their motion for judgment on the pleadings.

The issues as made by the pleadings may be summaried as follows: relators contend that the circuit court is without jurisdiction because the Jones-Munger Law (Laws of 1933, pp. 425-449) repealed certain statutes authorizing the suits for delinquent real estate taxes, and substituted therefor a method of sale without judicial proceedings; the relators further contend that, even if it be held that suits are maintainable for the collection of delinquent real estate taxes due fourth class cities, such suits cannot be brought by city collectors, but must be brought by county collectors because of the provisions of Article X, Chapter 59, Revised Statutes 1929, and particularly Section 9970 thereof as amended by Laws of 1933, pages 450-451 (Mo. Stat. Ann., p. 8012). Respondents contend that an Act of the Sixtieth General Assembly (Laws of 1939, pages 878-885) restores the suit method for collecting delinquent real estate taxes (city taxes as well as State and county taxes), in St. Louis County; and further contend that under Section 6995, Revised Statutes 1929 (Mo. Stat. Ann., p. 5735), such suits for taxes due a city in said county must be brought by the city collector.

The two questions confronting us are so closely related that we will consider them together. Those questions are: What is the proper method of collecting delinquent real estate taxes due a city of the fourth class in St. Louis County? What officer should collect such taxes?

Prior to 1879 no city, except where a special charter so provided, had a lien for taxes, the only lien therefor being vested in the State for all taxes (State, county, school and city) and the State enforced such lien through county officers. [Laws of 1871, 1872, pp. 117-119.]

In 1879 cities of 5000 or more inhabitants were granted a lien for unpaid city taxes on real estate and required to make return to and collect such taxes by city officers. [Laws of 1879, pp. 187-190.] Thereafter, from time to time, the power to enforce the lien for city taxes on real estate was conferred on cities of various classes. In 1933 when the Jones-Munger Law was enacted it seems that all cities collected their own taxes with the possible exception of some cities governed by special charter (Sec. 7324, R. S. 1929, Mo. Stat. Ann., p. 5889) and some cities of more than 100,000 and less than 500,000 inhabitants. [Sec. 7454, R. S. 1929, Mo. Stat. Ann., p. 5950.]

In 1895 a lien was created in favor of fourth class cities and provision made for the enforcement of such lien "in the same manner and under the same rules and regulations as are or may be provided by law for the collection and enforcement of the payment of State and county taxes," with the further provision that all suits for the collection of city taxes should be brought in the name of the State, at the relation and to the use of the city collector. [Laws of 1895, pp. 74, 75, now Sections 6994-6996, R. S. 1929, Mo. Stat. Ann., pp. 5734, 5, 6.]

The Jones-Munger Law repealed Section 9952 and other sections of the Revised Statutes of 1929, which provided for the collection of State and county taxes by suit and substituted a method of advertisement and sale without suit. It did not expressly repeal Sections 6994-6996, nor did it refer to any section of the statutes pertaining to the collection of city taxes in fourth class cities. However, as the Jones-Munger Law revoked the method of collecting State and county taxes by suit and provided a new method, and as Section 6995 provides that city taxes in fourth class cities shall be enforced in the same manner used for the collection of State and county taxes, the result was that such cities could collect their taxes by the new method only. But, while the Jones-Munger Law in connection with Section 6995 changed the method of collecting such city taxes, it did not transfer the collection from the city officers to county officers.

In 1939 the General Assembly enacted House Bill 677 (Laws of 1939 pages 878-885) amending the Jones-Munger Law. This Act restores in counties of the population of St. Louis County the old method of collecting State and county taxes on real estate by suit. It nowhere mentions city taxes, but respondents say that as the bill provides a method of collecting delinquent taxes in St. Louis County, this means all delinquent taxes (city as well as State) in said county. Respondents further say that Section 9963c of the Jones-Munger Law remains unchanged by House Bill 677; and, as that section provides in part "where applicable the word 'county' as used in this act shall be construed 'city,'" House Bill 677 becomes applicable to city as well as State taxes. We cannot so interpret Section 9963c. That section, in and of itself, does not place the collection of city taxes within the Jones-Munger Law as originally enacted or as amended by House Bill 677. Obeying the mandate of Section 9963c to read the word "city" into each section of the Jones-Munger Law where the word "county" appears, we find the only effect to be that city officers retain the same powers and duties as to city taxes as are given to county officers with respect to State and county taxes. The collection of city taxes comes under the provisions of the Jones-Munger Law, not by reason of Section...