State ex rel. Van Brown v. Van Every

• Citation: 75 Mo. 530
• Parties: THE STATE ex rel. VAN BROWN v. VAN EVERY et al., Appellants.
• Decision Date: 30 April 1882
• Court: United States State Supreme Court of Missouri

75 Mo. 530

THE STATE ex rel. VAN BROWN

v.VAN EVERY et al., Appellants.

Supreme Court of Missouri.

April Term, 1882.

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

Some of the cases were reversed, some affirmed.

Thos. H. Bacon for appellants.

T. S. Howell for respondent.

HENRY, J.

These suits were instituted, a portion of them in the Hannibal court of common pleas, and the others before a justice of the peace of Marion county, to recover delinquent taxes, and enforce alleged city liens therefor against the real estate of the respective defendants, on which said taxes were assessed by the city. Plaintiff obtained judgment in all the cases, and they are here on appeal from the Hannibal court of common pleas, to which the cases originating in the justice's court were appealed, and the appellants contend that the city of Hannibal, and not the State of Missouri, was the proper party to sue.

In the case of the State ex rel. Van Brown v. Sheperd, 74 Mo. 310, the contrary was held, but, in a very able brief, we are urged by Mr. Bacon, for appellants, to reconsider the question, and a careful examination of all the points made in his brief has confirmed us in the opinion delivered in that case.

In the City of Kansas v. Payne, 71 Mo. 160, we held that the City of Kansas was the proper party to sue to enforce her lien for delinquent taxes: 1st, Because by the 24th section of the charter of that city, approved March 24th, 1875, the liens on real property theretofore declared in favor of the State for delinquent city taxes, were transferred to the city; and by section 76 of the same act, it was expressly provided that in all cases where taxes had become delinquent before the passage of the act, suit might be brought in the name of the City of Kansas to enforce collection of such taxes, etc., in any court of competent jurisdiction. It was contended that, by an act of the general assembly, approved April 24th, 1879, entitled “An act to amend sections 2, 3, 4, 5, 9, 11, 14, 17 and 18, of an act approved April 12th, 1877, entitled ‘An act to provide for the collection of delinquent State taxes due the State, and repealing section 184 of an act concerning the assessment and collection of the revenue, approved March 30th, 1872,” the foregoing provisions of the charter of Kansas City were repealed, but it was held that if that act was intended to apply to Kansas City, it was to that extent unconstitutional, there being nothing in the title of the act to indicate such purpose; that the subject of the collection of taxes in a city which had a right and a remedy to collect them by suits in its own name, is not embraced in the phrase “State taxes.”

1. HANNIBALCITY TAXES: lien for them: enforcement thereof: general revenue law 1872.

By an act amendatory of the act incorporating the city of Hannibal, approved March 25th, 1870, it was provided 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 until said taxes are paid.” It was not expressly declared that the lien shall be held by the city, but the reasonable interpretation of the provision is, that the lien was given to the city, inasmuch as at that date no act of the general assembly had ever declared a lien in favor of the State for city or town taxes.

By an act approved March 30th, 1872, entitled “An act concerning the assessment and collection of the revenue,” it was provided that: “Real property shall in all cases be liable for all taxes due any city or incorporated town or school district, and a lien is hereby created in favor of the State of Missouri for all such taxes, the same as for State and county taxes which lien shall be enforced as in this act provided.” The term “revenue” is a general term, embracing as well city, town and county, as State revenue. The general assembly has absolute control of the revenues which counties, cities or towns are authorized by law to raise by taxation. Therefore, the title of the act of 1872 embraced the revenues of the towns and cities of the State unless some special provision of a city or town charter withdrew its revenues from the provisions of the general statute.

It is insisted, however, that the effect of repealing the charter provision of the city of Hannibal is not to be given to the act of 1872, because at the same session of the legislature an act was passed amending the charter of the city of Hannibal, by which exclusive jurisdiction was given to the recorder of said city, in all cases arising in the collection of all the general and special city taxes, when the same are delinquent, in such proceedings as might be provided by ordinance. It does not necessarily follow because the act in question gave the recorder exclusive jurisdiction of suits for taxes due the city, that the city of Hannibal was the proper and only party to institute such suits. The authority given to the county collector to sue in the name of the State for city delinquent taxes, is not repugnant to the jurisdiction conferred upon the recorder by that act. Both provisions may stand together, and the result would be that in suing for delinquent taxes assessed by said city, the county collector would have to institute his suits before the recorder. It was but the creation of an additional court, with exclusive jurisdiction in such cases, and there is nothing in the section indicating whether the city or county collector was the proper party to sue in those cases.

The provision in relation to the State lien for town and city delinquent taxes which first appeared in the act of 1872, has been substantially continued in all subsequent revenue acts, and by section 2 of the act of 1879, the register, city clerk or other proper officer, of all cities having a population of 5,000 inhabitants or more, were required, within sixty days after the act took effect, to make in a book to be called the “back tax book,” a correct list of all tracts of land and town lots on which back taxes should be due in such city for all the years for which the same might be delinquent, and deliver it to the collector of such city; and by section 7: “All back taxes, of whatever kind, whether State, county or school, or of any incorporated town or city, appearing due upon delinquent real estate, shall be extended in the ‘back tax book’ made under this act, and in case the collector of any city or town shall have omitted or neglected to return to the county collector a list of delinquent lands and lots, as required by section 178 of an act concerning the assessment and collection of the revenue, approved March 30th, 1872, the present authorities of such city or town may cause such delinquent list or lists to be certified as by said section contemplated, and such delinquent taxes shall be by the county clerk put upon the ‘back tax book’ and collected by the collector under the authority of this act;” and by a proviso to the section, in all cases where the auditor or other proper officer, is required by provisions of the charter of any city of 5,000 or more inhabitants to make the list for city delinquent taxes, in this section provided for, and deliver it to the collector of such city, he shall proceed to collect such delinquent tax list so made, in the manner and under the authority provided by this act and that to which it is amendatory. The exception in the proviso clearly shows that all cities and towns are embraced, except those of 5,000 inhabitants or more, whose charters contain the provisions named in the proviso; and such provisions are not contained in the charter of the city of Hannibal.

Section 178 of the act of 1872, referred to in the foregoing section of the act of 1879, required the collectors of all cities and incorporated towns having authority to levy and collect taxes, on or before the 1st day of May annually to return to the county collector a list of lands and lots on which taxes levied by such city or town remained due and unpaid, and made it the duty of such collector to obtain judgment and sell the real estate. These various provisions leave no escape from the conclusion, that the city of Hannibal has no right of action in her own name, to enforce the lien for delinquent taxes levied by her. The lien given her by her charter of 1870, was taken from the city, and given to the State, by the act of 1872, and was continued in the State by the subsequent acts.

It must be admitted that the revenue law contains many provisions which are apparently repugnant to each other, and it is no easy task to place such a construction upon them as one may confidently rely upon. Much may be, and in Mr. Bacon's brief has been said, against the conclusion we have reached, worthy of consideration, but that conclusion is the more reasonable, considering all the sections of the several statutes bearing upon the question, and we, therefore, adhere to it.

2. ______.

Appellants further contend that a portion of the taxes sued for were levied without authority of law, viz: the “judgment tax,” the “compromise tax” and the “floating debt tax.” One-half of one per cent was levied as a judgment tax, and the same amount as a compromise tax for each of the years 1873, 1874 and 1875; and for the year 1876 the levy for the floating debt tax was seven-tenths of one per cent, and for each of the years 1877 and 1878, four-tenths of one per cent; and in neither of the years 1876, 1877 and 1878 did the aggregate of the levy for general purposes and the floating debt tax, exceed the per centum which the city was authorized to levy for general purposes. The appellants' position is, that the aggregate of all the authorized taxes could not lawfully exceed one and one-half per cent.

The city charter as amended in 187...