80 Mo. 23 | Mo. | 1883
The county court of Putnam county, for the year 1878, levied.taxes as follows: County revenue fund thirty cents, county bridge fund twenty cents, county poor fund five cents, county road fund thirty cents, and county railroad fund thirty cents on the $100, and the tax books for that year showed that plaintiff’s property was
For plaintiff the court gave the following instructions :
1. The levy of taxes for county purposes is and has been, ever since November 30th, 1875, limited to fifty cents on the $100 valuation, and such levy for county jmrposes includes the opening and improving of public roads, the support of the poor and the building of bridges, and the levy by the county court in 1878, of thirty cents for county tax and thirty cents for road tax on the $100 valuation, exceeds said limit ten cents on the $100, and the additional levy by said court in 1878, of five cents for poor tax and twenty cents for bridge tax on the $100 valuation, and placed in separate columns on the tax book for 1878, is unauthorized by law and void on the face of said tax book.
2. The levy made by the county court of a tax of five cents on'the $100 as a poor tax and twenty cents on the $100 as a bridge tax, was and is unauthorized by law and void; and said taxes appearing in columns in the tax book separate and distinct from the column in said tax book setting forth the county revenue tax, and said last named tax and the road tax in another column, showing a levy of sixty cents on the $100 valuation — said bridge and poor tax appear on said tax book to be unauthorized by law.
3. The court declares the law to be that the “ poor tax” and “bridge tax” are, under the statute, included in and a part of the county revenue tax.
4. The levy made by the county court of Putnam county of the taxes for the year 1878, for county purposes, was and is in excess of the amount authorized by law.
The court refused the following asked by plaintiff:
6. Under the undisputed evidence in this case the plaintiff is entitled to recover.
The court, on its own motion, declared the law as follows :
The court declares the law that if the evidence shows the property in question was seized by the collector for taxes due upon the tax books in his possession, then the said property -was taken on process of law against the plaintiff' herein, and the finding, must be for the defendant.
To the giving of said declaration of law the plaintiff objected and duly excepted.
The court found for the defendant, and rendered judgment in his favor, from which this appeal is prosecuted, and the question is the same as was distinctly presented and expressly decided in Ruby v. Shane, 54 Mo. 207.
Appellant’s counsel contends that Henry v. Bell, 75 Mo. 194, is'in conflict with Ruby v. Shane. On a careful examination of that case, however, it will be found that a different question from that presented by this record was there passed upon by this court. It appeared that the sp ecial tax in question there, was not extended upon the original tax books delivered to the collector of Mt. Pleasant township, but was added by the county clerk, in pursuance of an order of the township board. By the act then in force, the tax in question could only be extended by the clerk of the county court, under the supervision of the county court, section 6 of the Township Organization Act providing that “ the money necessary to defray the township charges of
In Ranney v. Bader, 67 Mo. 476, the doctrine announced in Ruby v. Shane was explicitly recognized in the following language: “In the case of Ruby v. Shane, which we think decisive of the second point we are considering, it was held that when the property was liable to taxation, and the assessor’s book, superintended and sanctioned bv the county court, ordered the collection of the tax, the collector would be exonerated from liability, and that when the assessment is illegal, or based on the illegal act of the county court, the remedy of the tax-payer must be by a proceeding to arrest the execution of the illegal assessment and collection of the tax.” There is great force in the following observations of Judge Napton, in the opinion delivei'ed by him in Ruby v. Shane: “ To hold á subordinate ministerial officer responsible for the erroneous opinions and judgments of the judicial tribunal under whose mandate ho acts, is not consistent with our views of justice, public policy or expediency. Preventive remedies should be favored, but punitive judgments against innocent parties should not be encouraged. * * It is true that no redress has been indicated where the illegal tax has been paid, but would it not be
The judgment of the circuit court is affirmed.