State ex rel. Robinson v. Sanderson

54 Mo. 203 | Mo. | 1873

Napton, Judge,

delivered the opinion of the court.

This is an application to the Circuit, Court of Pike county to issue au injunction against Sanderson, the collector, prohibiting him from collecting certain taxes levied by the County Court to pay the interest on certain bonds issued by that Court on a subscription of $100,000 to the Clarksville & Weston R. R. Co. The suit is by the State through the circuit attorney.

The-grounds, upon which the injunction is asked, are that the election, held under the order of court, upon the question of subscribing to the R. R. Co., was illegal, inasmuch as it allowed disqualified persons to vote, and disregarded the provisions of the second article of our-constitution, and that, notwithstanding this illegal election, the court did subscribe $100,000 to the stock of the company, and issued bonds to pay this subscription, and levied a tax to pay them on the property of citizens of the township, where the vote was taken.

It is asked that the collection of this tax be prohibited or enjoined. A temporary injunction was granted, but, upon a motion to dissolve the bill, was dismissed.

The objections to this petition are, that the State is not a proper party, and that neither the County Court, who issued the bonds, nor the R. R. Co., to whom they were issued, were made defendants.

~We do not question the right of the State through its proper officers to institute such a proceeding; but the County Court, who subscribed to the B. B. Co., and levied a tax to pay the bonds issued, ought to be heard, and the Bailroad Company, to whom the bonds were issued and in whose possession they may be presumed to remain, ought to be heard. Neither are made parties defendant.

Courts are not organized to decide abstract propositions. The parties interested in the decision of the cause must be before the court on one side or the other.

In the Saline county case (51 Mo., 350) the County Court the clerk, and collector, were all made parties defendant. The main object of the bill in that case was to prevent the issue of bonds, and the point examined and decided was as to the validity of the subscription, and the result was the prevention of any further issue of bonds; the previous issue having been so inconsiderable as to elicit no attention on either side.

In this case the suit is not brought to restrain the issue of the bonds, and if it was, it would be clear that the County Court should be a party ; but it is brought to prevent the collector from collecting a tax levied by the court, and which he is bound to collect by virtue of the obligations of his office.

The tax is said to be illegal, but the court, which ordered it, is not made a party defendant.

We may observe, that the irregularities set up in regard to the election would be no defense against the bona fide bondholders.

Judgment affirmed.

The other judges concur.