Stephens v. Mayor of Booneville

• Decision Date: 31 January 1864
• Citation: 34 Mo. 323
• Court: Missouri Supreme Court
• Parties: JOSEPH L. STEPHENS, ADM'R, &c., Plaintiff in Error, v. THE MAYOR OF THE CITY OF BOONEVILLE, Defendant in Error.

34 Mo. 323

JOSEPH L. STEPHENS, ADM'R, &c., Plaintiff in Error,

v.THE MAYOR OF THE CITY OF BOONEVILLE, Defendant in Error.

Supreme Court of Missouri.

January Term, 1864.

Error to Cooper Circuit Court.

Adams, for plaintiff in error.

I. The City of Booneville has no “jurisdiction over any property, except real and personal property within the city.”

The property to be taxed must have an actual “ situs” within the city. (See 11th sec. of the Charter, Sess. Acts 1839, p. 297.)

II. The tax authorized by the charter is a tax on property, and not a tax on persons. It can only be levied or assessed on specific articles; that is, such only as have a locality within the city. Persons residing within the city may own real or personal property located beyond the limits of the city, and the fiction that personal property, including choses in action, or debts, follow the person, does not apply to this case. The question here is a question of jurisdiction--the right or power of the city to tax property whose real situs is beyond its limits. In such case fiction gives way to truth, and the real situs can and must be inquired into. (Sto. Confl. of Laws, § 550; 14 Ill. 163; Mills Exec'r v. Thornton, 16 Ill. 300.)

The question in this case did not arise in the cases referred to by the counsel for respondent--of the City of Lexington v. The Farmers' Bank, and the Town of Paris v. The Farmers' Bank, 30 Mo.

Douglass, for defendant in error.

The only question presented by the record is as to the power of the city, under its charter, to assess and collect the taxes in controversy. The provision of the charter found in the 11th sec. of charter, approved February 8, 1839, confers upon the city “power by ordinance to levy and collect taxes upon real and personal property within the city, not exceeding one-half of one per centum upon the assessed value thereof.”

In pursuance of this power, the city ordained in an ordinance approved April 1st, 1859, as follows:

“Sec. 2. Immediately upon the election and qualification of the assessor, the register shall deliver to him the assessor's book of the preceding year; whereupon the assessor shall proceed to list and assess all property of every description within the city, which may be subject to taxation by the law then existing, for State and county purposes.”

In this case, the bonds and notes upon which the tax was assessed were “ within the city.” This power of taxation is conferred upon cities, in order that they may support their city governments. Their citizens enjoy the protection and privileges of the municipal government. It is right, therefore, that they should contribute to the support of that government.

In this case, the administrator enjoyed the protection of the city government. The assets of the estate were kept safe within its limits, under the city government; then the estate of Davis not only had its property preserved from destruction, to which it was peculiarly liable in such times as these, but it also secured the valuable services of its chosen administrator.

The fact that the debtors are non-residents of the city, cannot alter this principle. (30 Mo. 480, 575.)

BAY, Judge, delivered the...