State ex rel. Lathrop v. Dowling, 50 Mo. 134

State ex rel. Lathrop v. Dowling

50 Mo. 134 | Mo. | 1872

Bliss, Judge,

delivered the opinion of the court.

A writ of certiorari was issued to defendant, as a board of appeals from the assessment of taxes by the assessor of the city of Hannibal, which was finally quashed, and the following points Were made at the bearing :

1. It was urged that the court bad no jurisdiction by this writ over the proceedings sought to be reviewed. The action of the board of appeals is judicial in its nature, and this is the proper mode of reviewing its proceedings. (Lee’s Adm’r v. St. Louis County Court, 47 Mo. 594.)

2. The object of the proceeding was to test the legality of an assessment upon the relator’s shares in the First National Bank of Hannibal, and it was also urged that if the shares were exempt from taxation, as claimed by relator, the proceedings were void, and the collector would be personally liable ; and thus, there being another remedy, this writ would not lie. But the leading object of the writ is to keep inferior judicatories within the bounds of their jurisdiction. Says Savage, J., in Starr v. Trustees, etc., 6 Wend. 567: “It may be said that these plaintiffs have their remedy by action, therefore certiorari will not lie. Where there is no jurisdiction there is a remedy by action, but that does not deprive this court of jurisdiction, nor prevent a party injured from pursuing this remedy.” (See also State v. Thompson, 2. N.H. 236; Ex parte Hay, 10 Pick. 358; State v. Pownal, 10 Me. 24; Williamson v. Carman, 1 Gill & J. 184.)

3. The relator’s property was held to be subject to taxation, and that this bolding was correct is no longer an open question. (Lionberger v. Rowse, 43 Mo. 67; First National Bank v. Meredith, 44 Mo. 500.)

4. The petition for the writ charges that a portion of the city tax was levied to pay interest upon bonds issued for the construction of a railroad to Naples, Illinois, an enterprise in which the city bad no right to engage, and asks that respondents be required to show by what warrant and authority taxes were assessed for that purpose. Instead of sending up a transcript of the assessment and of the record of their proceedings upon appeal, they *137make a long award like a return to an alternative writ of mandamus or quo warranto, and allege among other things that the tax was assessed by virtue of an ordinance of the city, duly authorized, etc.; and the relator complains of this return as not showing a lawful authority for this special tax.

Both parties seem to have mistaken the office of the writ and the practice under it. It is issued to bring up for review the record of the proceedings complained of, and is not a citation to appear and justify the action of the tribunal, as though a judgment was to be rendered against its members. We are not advised in this case whether there was anything before the board of assessors showing for what the city debt was contracted, or whether the relator applied to them to abate or reduce his tax for the reason named. Ordinarily, in reviewing tax assessments, we pass upon the question whether the property is liable, either at all or in the manner assessed; and if complaint is made of the object for which the taxes are to be collected, it should be by a proceeding against the authority which creates the debt or makes the levy. I do not, however, mean to say that the purpose for which the tax is to be collected may not be considered in reviewing the action of the board of appeals, if shown by the tax list or by the record of their proceedings; but the board cannot be called upon to justify the levy.

The question, then, of the right of the city of Hannibal to subscribe to stock in the railroad spoken of, was not raised by the record, and the court committed no error in refusing to consider it.

There being sufficient ground for quashing the writ, the judgment below will be affirmed.

The other judges concur.