Overall v. Ruenzi
67 Mo. 203
Mo.
1877
Check Treatment
Napton, J.

There are but two points in this case, each ■ *207of which has been very elaborately and ably discussed by the counsel on either side.

1. INJUNCTION AGAINST ILLEGAL TAXATION. In regard to the propriety of an injunction on the 1'acts stated, various authorities cited on either side have been examined, but we deem it necessary only to state the conclusions we have reached Avithout any review of the cases. It Avould be difficult, if not impossible, to reconcile the authorities, either here or elseAvhere. But it is quite apparent that of late years, Avhether by reason of our statute in regard to injunctions, first introduced into the Revised Code of I860, or upon general grounds of expediency, this court has been disposed to regard with favor proceedings Avhich are preventive in their character, rather than compel the injured party to seek redress after the damage is accomplished. We see no objection, therefore, to the mode adopted in this case to test the validity of the tax.

2. TAXATION: constitution of 1875. The question as to the validity of the levy of a tax prohibited by the constitution of 1875, when the assessnient had been made prior to the 30th of 2^ovom]3erj -when the constitution Avent into operation, Avas examined by this court in the cases of St. Joseph Pub. Schools v. Patten 62 Mo. 444, and Southern Hotel Co. v. County Court of St. Louis, 62 Mo. 134, and by the Court of Appeals in Valle v. Fargo, Vol. 1, p. 344, and by the U. S. District Judge in Ketchum v. Pac. R. R. Co., reported in Central Law Journal November. 10th, 1876, p. 725. The tax in that case Avas for the year 1876. Although the assessment was made on the 29th of November, 1875, the day before the constitution Avent into operation, it. Avas not finally passed upon by the board of appeals until the latter part of April, 1876, and was not received by the collector till sometime in July of that year. It Avas therefore subject to the restrictions of the constitution of 1875.

We are, however, of opinion that the court should have required the payment of the taxes confessedly due, before granting the injunction, and the case will be remanded in

*208order that the court may name a day within which the plaintiffs may pay into court this sum, before granting any injunction. Judgmeut reversed and cause remanded.

The other judges concur.

Reversed.