State ex rel. Wilson v. Mastin

• Decision Date: 09 March 1891
• Parties: The State ex rel. Wilson, Collector, v. Mastin et al., Appellants
• Court: Missouri Supreme Court

15 S.W. 529

103 Mo. 508

The State ex rel. Wilson, Collector, v. Mastin et al., Appellants

Supreme Court of Missouri, First Division

March 9, 1891

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

This is an action by the collector of the revenue for Jackson county to enforce a lien for taxes against defendants' interests as owners of certain real property in that county. Quite a number of items of tax are sued for in the action, but only one is disputed, viz.: The "Westport Horse Railroad fund tax."

It is unnecessary to state the pleadings, for the decisive facts are admitted.

The defense in substance is, that the tax in question is greater than is sanctioned by the statute authorizing the subscription in aid of the Westport horse railroad. Sess Acts, 1871, p. 197.

The trial court found in favor of plaintiff for the amount of the tax contested, and from that judgment the defendants appealed in proper form. The other essential facts appear in the opinion.

Affirmed.

T. A Frank Jones for appellants.

(1) The writ of mandamus from the United States circuit court to the county court, directing it to levy a tax on the district in question, confers no new authority or power to levy such a tax, but is merely a command to exercise such taxing power as is resident in the county court. If the county court had no authority from the state of Missouri to levy such a tax, the writ of mandamus is a nullity and the levy of tax in obedience thereto is void. State ex rel. Wilson v Rainey, 72 Mo. 229. (2) The county has no implied authority to levy a tax; its power to tax must be clearly and expressly given by statute. State v. Shortbridge, 56 Mo. 126; State v. Railroad, 87 Mo. 236. No general taxing power given by statute to the county court could empower it to specially tax this district, detached from the rest of the county for a special purpose by legislative enactment. The only authority to tax this district, as such, is found in the act of the legislature creating it. Session Acts of 1871, p. 197. (3) This act, conferring a power of local taxation of exceptional and anomalous character, must be construed with special strictness against anyone claiming authority to levy a tax under it. Unless this act confers clear and express authority on the county court, it has no authority for its levy. Cooley on Taxation, p. 276; State v. Shortbridge, 56 Mo. 126. (4) The defendants are not estopped by the judgment against Jackson county on the bonds from making the defense that the county court has no power to levy the tax; because, first, this question was not directly in issue in that judgment, and second, because the county court was not such a representative of the Westport district, that its appearance to a legal action would be binding upon the said district. (5) Section 1 of this act limits the levy of tax on this district, as such, to one-half of one per cent. The levy made by order of the county court, and here sued on, is one and one-half per cent. For this reason the levy is illegal and void. Cooley on Taxation, p. 429; Desty on Taxation, p. 464; Railroad v. York Co., 7 Neb. 488; State v. Shortbridge, 56 Mo. 126; State ex rel. v. County Court, 68 Mo. 29.

Botsford & Williams and John C. Wallace for respondent.

(1) The township aid act, being referred to in the Westport horse railroad act, for power to make the subscription and vote the tax, is to be considered as incorporated in the latter act, and the two statutes are to be considered as one. State v. Geiger, 65 Mo. 306; Ensworth v. Curd, 68 Mo. 286; Ex parte Allen, 67 Mo. 586; Nunes v. Wellesh, 12 Bush (Ky.) 363; Turney v. Wilton, 36 Ill. 393; Sika v. Railroad, 21 Wis. 370. (2) It is conceded by appellant that the bonds and judgment are valid and binding. If so, the power to issue the bonds expressly authorizes the levy of a tax to pay them. See Township Aid Act, Sess. Acts, 1868, pp. 92-3. (3) Appellants having actively intervened, by petition, in securing the subscription, the issue and delivery of the bonds, under the township aid act, and having received the full benefit of the subscription, are now estopped from denying the validity of the act or the power of the county court to make the subscription, issue the bonds or levy a tax to pay them. Cross v. City of Kansas, 90 Mo. 13; Ferson's Appeal, 96 Pa. St. 140; Bidwell v. Pittsburgh, 4 Norris (Pa.) 412; Ferguson v. Landrum, 1 Bush (Ky.) 548; s. c., 5 Bush, 230; City of Burlington v. Gilbert, 31 Iowa 364; Railroad v. Stewart, 39 Iowa 270; State v. Mitchell, 31 Ohio St. 594; Daniels v. Tearney, 102 U.S. 421.

OPINION

Barclay, J.

The tax bills, in an action of this nature, are, by statute, prima facie evidence that the amount claimed therein is just and correct. R. S. 1889, sec. 7682, same as sec. 6837 in the revision of 1879. Such bills, duly authenticated, were admitted in evidence, without objection, indicating as due the amount of taxes for which the trial court ultimately gave the judgment for plaintiff now before us for review. It devolved on defendants (after the bills were thus received in evidence) to show, if possible, that the charge they purported to create upon the taxable property, described therein, was in some respect illegal.

It appears that a judgment was recovered, in 1880, in the United States circuit court for the western district of Missouri, upon certain municipal bonds of the "taxing district of Westport," dated in 1871, which judgment remaining unsatisfied, a mandamus afterwards went from that court directing the county court of Jackson county to levy a special tax to satisfy it. After the alternative writ, proceedings were taken in the circuit court of Jackson county, under sections 6798 to 6803 (R. S. 1879, now 7653-7654, of 1889), in which that court found that the levy was necessary, and that the assessment, levy and collection of the tax would not be in conflict with the constitution and laws of this state, and ordered the county court to assess, levy and collect it. In obedience to this order the county court made the assessment and levy upon the property chargeable with the tax for an amount necessary to comply with the mandamus. This is the tax which is challenged.

It should be observed at once, as a premise of vital importance in the consideration of the case, that defendants concede the validity of the bonds, and of the judgment given upon them...