67 Mo. 476 | Mo. | 1878
— This suit was instituted in the circuit court of Cape Girardeau county, to recover the sum of $67, which it is alleged the defendant, as sheriff and collector of said county, had collected from plaintiff by coercion, the same having been-levied on his real estate situated in the township of Cape Girardeau, in said county, as a special tax, to be applied to the payment of interest on certain railroad bonds issued by said county on behalf of said township to the Cape Girardeau & State Line Railroad. It is also alleged in the petition that all the proceedings of the county court in levying the said tax and issuing the bonds were without authority of law and void. The defendant admits in his answer the collection of the sum sued for, and sets up, by way of justification, that the bonds for the payment of the interest on which the tax was levied, were valid and lawful, and that the tax w as assessed according to law. The principal recitals of the answer may be found in the case of Ranney v. Bader, 50 Mo. 600. All allegations of the answer were denied by replication, and a trial was had, resulting in a judgment for defendant, from which plaintiff' has prosecuted his writ of error to this court. The various objections made to the reception of evidence, and the giving and refusing instructions during the progress of the trial, present but two questions'for our determination. 1st. Were the bonds out of which the interest originated, and for the payment of which interest the tax was levied and collected, issued by authority of law? 2nd. If issued without any lawful authority, can the plaintiff" recover for the enforced payment of the taxes assessed and levied to pay the interest on them?
This may be done by certiorari under the authority of the cases of the State ex rel. v. St. Louis County Court, 47 Mo. 594, and State ex rel. v. Dowling, 50 Mo. 134, in which it was held that the action of the county court, in assessing taxes, was judicial in its character, and that a writ of certiorari would lie to review its action in that respect. It may also be done under the authority of the case of Newmeyer v. Mo. & Miss. R.R. Co., 52 Mo. 81, by any tax-payer who may for himself, and on behalf of all other tax-payers similarly situated, by bill in equity, assail the illegal acts of county courts in respect to assessing and levying taxes. Judge Ewing, in the opinion of the court, cites approvingly the case of Wood v. Draper, 24 Barb. 187, in which it was held “ that it must be regarded as the settled law of this court
It is said the above cases are not in strict accord with the cases of Deane v. Todd, 22 Mo. 92; Sayre v. Tompkins, 23 Mo. 445; Barrow v. Davis, 46 Mo. 394; Leslie v. City of St. Louis, 47 Mo. 478; Steines v. Franklin County, 48 Mo. 176, which assert the doctrine that courts of equity will not interfere, by injunction, to restrain the collection of an illegal and void tax. The distinct ground upon which the-court based its conclusion was, that in such eases courts of equity would not interfere, because there was a complete remedy afforded to the injured party by an action at law against the officer.
There is, however, another ground of equitable jurisdiction which reconciles the conclusion reached in the ease of Newmeyer v. Mo. § Miss. R. R. Co., and Rubey v. Shaint supra, with the cases above cited, viz: that equity will maintain jurisdiction to prevent multiplicity of suits, and no stronger case could be put for entertaining jurisdiction under this rule, than is presented, when one tax-payer for. himself and all other tax-payers of a township or county, similarly interested, brings his bill, asking the chancellor to put forth restraining process to prevent the imposition and collection of an unauthorized tax, and thus settle in one suit, what it would take hundreds and, perhaps, thousands to do, if such relief were denied, and the pai’ties subjected to the paymeut of such tax were driven, each one, to his action at law for redress. Following the case
All concur in the conclusions reached, so far as it ia based on the non-liabihty of the collector, except Judge Sherwood, who dissents. Judges Sherwood and Henry concurring in the views expressed in regard to the act of 1868, and the bonds issued under it; Judge Napton dissenting therefrom. Judge Hough adheres to his opinion in the Brassfield case, but declines to declare the bonds invalid on the ground that their recitals, which are not before the court, may be such 'as to protect innocent holders under the decision in Carpenter v. Town of Lathrop, 51 Mo. 483.
AFFIRMED.