87 Mo. 519 | Mo. | 1885
Lead Opinion
This is an action instituted by respondent against appellants, before one J. Wade Gardner, a justice of the peace, for the enforcement of an alleged lien of the state for taxes, alleged to be due for the years 1873, 1874, 1876, 1878, ■ 1879, .and 1881, on lot thirteen. (13), block fifteen (15), town of Appleton City,.St. Clair
On the return day of the order of publication, the-justice rendered judgment and thereafter filed transcript in the office of the clerk of circuit court, on which execution was issued and delivered to.sheriff of said county,, who advertised same for sale at September term, 1888, of said county, at which term appellants filed their motion to quash, and showed all the facts herein to the court, St. Clair county being governed by the township law from July 1, 1872, to August, 1877, the agreed statement of facts being as follows:
“1. That on the twentieth day of August, 1883,. the relator recovered before J. Wade Gardner, a justice of the peace of Osceola township, St. Clair county, Missouri, a judgment by default against defendants enforcing the lien of the state for taxes due for the years 1873,. 1874, 1876, 1878, 1879, andx 1881, on lot thirteen (13), block fifteen (15), town of Appleton City, St. Clair county, Missouri. 2. That service was had on the defendants, as follows: On the defendant, John R. Hopkins, by reading a copy of the writ to him in Appleton township, in said county; on the defendant, Frank H. Woodbury, by order of publication, summons having-first been' returned non est, and the justice finding and*523 entering of record, that he is satisfied that the summons'' cannot be served on said defendant, Woodbury. 3. That' at the time of the institution of said action, and ever' since, the defendant, John R. Hopkins, resided in Appleton township, in said county, and the defendant, Frank H. Woodbury, in the county of Jackson, in the-state of Missouri; that Appleton township does not adjoin Osceola township. 4. That for the years 1873, 1874 and 1876, the assessment rolls are not verified by the assessor, as required by law. 5. That no affidavit of non-residence was ever filed against Woodbury.”
The trial court overruled the motion to quash theexeeution, and entered judgment accordingly, from-which defendants have appealed. The controlling question which the record presents is this: Have justices of the peace jurisdiction, that is, the power to hear and determine suits Drought to enforce the state’s lien for unpaid back taxes ?. Before such a power can be affirmed to exist it must be made to appear that the law has given, such officers the capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has been preferred, and that such person or thing has been properly brought before the court or tribunal to answer the charge therein contained. Gray v. Bowles, 74 Mo. 419. Justices of the-peace, as well as the jurisdiction to be exercised by them in the courts they are authorized to hold, are created and regulated by statute, and they can only exercise such jurisdiction as the law creating them confers, and being inferior courts not exercising jurisdiction according to the course of the common law, they can take nothing by implication. In Wells on Jurisdiction, page 26, section 30, the rule upon this subject is stated as follows: Nothing will be presumed to be without the jurisdiction of a superior court of general jurisdiction, and nothing presumed to be within the jurisdiction of an inferior court having limited or special jurisdiction. In the case-
In Jones & Crawford v. Reed, 1 Johnson Cases, 20.,' in treating this question, it is said: “It is a clear and salutary principle that inferior jurisdictions, not pro-. ceeding according to the course of the common law, are confined strictly to the authority given them. They can take nothing by implication, but must show the power expressly given them in every instance.” To the same effect are the following cases : Thompson v. Cox, 8 Jones (N. C.) 311; Board, etc., v. The People, 20 Ill. 525; Downing v. Florer, 4 Col. 209 ; Ford v. Babcock, 1 Denio, 158.
It follows, therefore, from what has been said, that unless it can be shown otherwise than by implication that justices of the peace have been invested with jurisdiction over suits for the enforcement of the state’s lien for unpaid back taxes, that a negative answer must be returned to the question which this record presents. .It is claimed by the attorney-general that jurisdiction in such cases is given to justices of the peace by section 6836, Revised Statutes. This section was enacted in 1879, as an amendment to section 5, acts 1877, page. 386,,
It is clear to my mind that this section neither conferred jurisdiction upon, nor authorized suits to be brought before justices of the peace for the enforcement of the state’s lien for back taxes. It simply authorized suits to be'brought in the couits of competent jurisdiction of the county where the real, estate bound for the tax was situated, in no way conferring upon, enlarging or restricting the jurisdiction of such courts, otherwise than by providing that they should exercise the jurisdiction already possessed without regard to the amount involved. That justices’ courts were not courts of competent juris
The amendment thus made does not confer any jurisdiction upon justices of the peace, but simply provides the method of exercising a jurisdiction which the general assembly took for granted had been conferred, but which in fact had not been conferred. It is competent for the legislature to confer such jurisdiction upon justices as is not prohibited by the constitution, as it may choose, and then to prescribe the method of exercising the jurisdiction when conferred. An example of this is to be found in the act relating to suits before justices to enforce mechanic’s liens, in the first section of which jurisdiction is expressly given and the following sections regulate the method of exercising it. Section 2872 and the following sections of Revised Statutes. But it is not in section 6836, which only prescribes the method of exercising a jurisdiction in a class of cases' oyer which jurisdiction had not been conferred either by said section or any other. A law simply prescribing the method of exercising jurisdiction by an inferior court, in a class of cases where jurisdiction has not been conferred, cannot have the effect of conferring jurisdiction, unless the rule heretofore adverted to, that such courts can take nothing by implication, is ignored. The section as amended is section 6836 of Revised Statutes.
It will be observed that, as the section stood before the said amendment was made, it did not attempt to confer jurisdiction upon any court, but simply imposed a duty upon county collectors to institute suits to enforce the payment of back taxes, and in the performance of this duty required them to institute such suits in the courts of competent jurisdiction of the county where the land was situated against which the tax was a charge,
There is another view which seems to me to be conclusive of the question involved. It is this: Section 6837, Revised Statutes, provides that “all actions commenced under the provisions of this chapter shall be prosecuted in the name of the state of Missouri at the relation and to the use of the collector, and against the owner of the property.” Itfollows, I think, from this, that in suits of this character the title to real estate is involved, because the question as to who is the owner of the land sought to be charged with the tax can only be ascertained by determining who has the title, and if the question, of title is involved in such cases then justices of the peace have no jurisdiction to pass upon such question, for the reason that in section 2837, Revised Statutes, it is ex
In short, in order to be able to hold that a justice of the peace has jurisdiction in such cases, two things are indispensably necessary. First, to show that the statute denying jurisdiction to justices of the peace in cases involving title to land has been repealed. Second, to show that some statute expressly confers such jurisdiction on justices in cases to enforce the payment of taxes. Neither of these things appears in the section of the statute relied upon. I am aware that the conclusion above announced is in conflict with that declared in the case of Van Brown v. Van Every, 75 Mo. 530, and the case of the State ex rel. v. Staley, 76 Mo. 158. In the first of these cases it
Dissenting Opinion
Dissenting. — Dissenting from the foregoing opinion, I shall briefly state the reasons for my-dissent. I have never entertained a doubt that the general assembly has conferred jurisdiction upon justices’ courts to enforce the state’s lien for taxes. This court has so held in two cases, and thousands of acres of land, <on the faith of those adjudications, have been purchased under executions issued upon judgments rendered by justices of the peace in such cases, and, upon the principle of stare decisis alone, they should be adhered to. But there is no necessity for invoking that doctrine to sustain these decisions.
Sections 6836, 6837, 6838 of the revenue law, distinctly confer the jurisdiction, and regulate the practice of justices’ courts in suits to enforce the state’s lien for taxes. ■ I do not question the doctrine that such inferior tribunals have no jurisdiction, except such as is distinctly conferred upon them by the legislature, and, when any. doubt exists on that question the jurisdiction should be denied. But where the intent to confer the jurisdiction is clearly deduclble from the language employed by the legislature, the doctrine has no application. Section 68^3
Can it be doubted that the legislative intent was to confer jurisdiction upon justices’ courts in suits for taxes ? Not only are there special provisions applicable to those courts, but by a general provision, the practice and proceedings in civil cases, as prescribed by the general law, are expressly applicable to all suits for taxes in whatever court instituted, provided they are not contrary to the general revenue law. That portion of section 6836, which declares that, “In all cases before justices of the peace,” etc., was an amendment to sections of the act of 1877, ■adopted in 1879. Why was it enacted ? Had the general assembly nothing in view to accomplish by its enactment ? To say the least, of itself, it is a recognition of the justices’ jurisdiction, and certainly has effect as a legislative construction of the preceding clause, by which jurisdiction was conferred in these cases, “upon the courts of competent jurisdiction of the county, without regard to the amount sued for.” This might not have been sufficient, without further legislation prescribing the practice in such proceedings before justices of the peace,' but, in the subsequent sections this ds supplied, and all that was required, even by the argument in the majority
But, to place the matter beyond all controversy, and to remove any doubt, if the language of the above1 sections admitted of any, the emergency clause in the act of 1879'declares that: “ This act shall take effect, and be in force fxxxm and after its passage, the emeigency being to save the cost attending the bringixxg of suits for small amounts in courts of record, and the delay attending the collection of taxes by sxxch suits * * * and to settle the indefinite and uncertain jurisdiction of courts.” Section 5, of the act of 1877, did not contain that portion of section 6836, supra, relating to jxxstices of the peace, while sections 6837 and 6838 of the revenue law were exnbodied in that act, and these several sections gave rise to the controversy with respect to the jurisdiction of justices of the peace, and it is with reference to-that question that it is declared in section twelve of the act of 1879, that the emergency is, “ to settle the indefinite and uncertain jurisdiction of courts,” and this, in connection with the further declaration in that emergency clause, that it is “to save costs of bringing suits for small amounts in courts of record,” and “ the delay attending the collection of taxes by such suits f leaves it beyond any doubt or questioxx that the intent of sections 6836, 6837 and 6833 was to give jurisdiction to justices of the peace to enforce the state’s lien for taxes. Such being the case it is not for the judiciary to prescribe the formula in which that intent should be expressed by the legislature. What we have to do is to ascertain that .intent from-.the-language employed in the act, and when clear, to give it effect-.
It xnay have been bad policy to confer such jurisdiction upon justices of the peace, but, as a judicial tribu
Rehearing
On re-hearing.
The court adheres to the opinion delivered in this cause heretofore and the judgment of ibis ■court will be in accordance with that opinion. TIenry, C. J., dissents, for the reasons assigned in his dissenting •opinion heretofore filed.
