139 Mo. 549 | Mo. | 1897
This is an action at the relation of Hayes, collector of Jackson county, begun in the circuit court of that county to recover personal judgment against defendants for the amount of taxes assessed against certain real estate in Kansas City, of which they were the owners on the first day of June, 1891.
The case was tried upon the following agreed statement: “It is agreed and admitted by the parties to this action that the defendants were the owners of the real property described in the petition at the time the assessment for the taxes in question was made, that is, on the first day of June, 1891; that the defendants sold and conveyed said property on the thirtieth day of July, 1891, to the United States of America, for the purpose of erecting a building thereon for the use of the United States court, postoffice, internal revenue and other government offices. It is also admitted that the taxes appear on the tax books as set forth in the petition of plaintiff, and that said taxes have not been paid. It is further admitted that said tax was not. levied until April 1, 1892, and was not payable until September 1, 1892.”
There was judgment for defendants, from which plaintiff appeals.
The first question presented by this record for our consideration is as to whether or not the assessment of taxes against the real estate owned by defendants at that time, created a personal liability against them for the taxes? It is insisted by plaintiff that it did, both by reason of section 7569, Revised Statutes 1889, which provides that “every person owning or holding property on the first day of June, including all such property purchased on that day, shall be liable for taxes thereon for the ensuing year,” and irrespective of the statute. We quite agree with plaintiff with respect to the meaning of the statute and that by its
Thus in Burroughs on Taxation, sec. 7, p. 4, it is said: “The tax is a contribution required of its citizens by the State, and when it is measured, as to its amount, by the value of the productiveness of the property, it is still a tax on the person, and there is a personal liability on the person assessed with the tax. ‘The individual, and not his property, pays the tax. The property is resorted to for the purpose of ascertaining the amount of the tax with which the owner must be charged.7 The tax is imposed upon the person of the owner on account of his ownership of the property........There is an exception to this general rule in local assessments, or taxation on the benefits conferred. This is a species of taxation in rein.'’7 The same rule is announced in Cooley on Taxation [2 Ed.], p. 354.
But it does not necessarily follow that plaintiff can maintain this action for a personal judgment against defendants for such tax. This depends altogether upon whether or not any other exclusive^provision for their collection has been provided for by statute.
A tax is not a debt in the ordinary sense of that term, as it is not founded upon contract, and as a general thing a debt can not be created in any other way. “Tax proceedings are in invitum. 'The tax is an impost levied by the authority of the government for the support of the State, and has none of the characteristics of a contract, the essence of which is an agreement expressed or implied.77 Burroughs on Taxation, sec.
Cooley on Taxation [2 Ed.], 16, says: “Butin general, the conclusion has been reached that when the statute undertakes to provide remedies, and those given do not embrace an action at law, a common law action for the recovery of the tax as a debt will not lie.” This is the generally accepted doctrine, though there are exceptions to this general rule, for instance, where right to bring suit is expressly given by statute, or where the implication ‘of an intent to give a remedy by suit may be so strong as to be conclusive; as where the statute provides for tax, but is silent as to the method of collection.” ' Cooley on Taxation [2 Ed.], 435; City of Carondelet v. Picot, supra.
By section 7681 to 7684, inclusive, Revised Statutes 1889, a method for the collection of taxes against land is provided for, which is by the enforcement of the State’s lien by suit against the owner of the land. No personal judgment against the owner is provided for, but by section 7683, Revised Statutes, it is expressly provided that: “The judgment shall describe the land upon which taxes are found to be due; shall state the amount of taxes and interest found to be due upon each tract or lot, and the year or years for which the same are due, up to the rendition thereof, and shall decree that the lien of the State be enforced, and that the real estate, or so much thereof as may be necessary to satisfy such judgment, interest and costs, be sold, and a special fieri facias shall be issued thereon, which shall be executed as in other cases of special judgment and execution, and said judgment shall be a first lien
Moreover, section 7608, Revised Statutes, provides another mode for the collection of such tax. It is in the following language: “The collectors shall diligently endeavor and use all lawful means to collect all taxes which they are required to collect in their respective counties, and to that end they shall have the power to seize and sell the goods and chattels of the person liable for taxes, in the same manner as goods and chattels are or may be required to be seized and sold under execution issued on judgments at law, and no property whatever shall be exempt from seizure and sale for taxes due on lands or personal property: Provided, that no such seizure or sale for taxes shall be made until after the first day of October of each year, and the collector shall not receive a credit for delinquent taxes until he shall have made affidavit that he has been unable to find any personal property out of which to make the taxes in each ease so returned delinquent; but no such seizure and sale of goods shall be made until the collector has made demand for the payment of the tax. either in person or by deputy, to the party liable to pay the same, or by leaving a written or printed notice at his place of abode for that purpose, with some member of the family over fifteen years of age. Such seizure may be made at anytime after the first day of October and before said taxes become delinquent, or after they become delinquent.”
There are therefore two different methods provided by statute for the collection of taxes against real estate, viz., one by suit to enforce the State’s lien against the land, the other to distrain personal property for “all taxes.” In re Life Association of America, 12 Mo. App. 40, it was said: “The right thus given to distrain per
No pei’sonal judgment can be rendered against the taxpayer for taxes against his land. Blevins v. Smith, 104 Mo. 583. It was said in City of Carondelet v. Picot, supra: “The levying of taxes is a matter solely of statutory creation, and no means can be resorted to to coerce their payment, other than those pointed out in the statute.”
What has been said finds support in the fact that it is expressly provided by statute (B. S. 1889, sec. 7626), that: “Personal taxes assessed on and after June 1, 1887, shall constitute a debt for which a personal judgment may be recovered in the circuit courts of this State, against the party assessed with said taxes,” while there is no such statute with regard to taxes against real estate. It logically follows that the plaintiff can not maintain this action.
The conclusion reached renders it unnecssary to pass upon other questions discussed by counsel for defendants in their brief.
The judgment is affirmed.
