83 Mo. 670 | Mo. | 1884
This was a suit to recover “back taxes”
The answer denies each and every allegation of the petition, and further answering says : “That there have not been regularly or duly assessed against defendant for or by reason of real estate owned by or belonging to him, school taxes in the Webster school district for the years 1869, 1870, in the county of St. Louis, amounting to the sum of one hundred and fifty dollars and thirty cents ; that there has not been any assessment for or on account of any school taxes in the Webster school district for the years 1869, 1870, or for any other year or time, or for any year or time, or for any amount whatever, made upon the property of the defendant. That there is not, and never was, any authority or law for any assessment for taxes upon the defendant’s property in said Webster school district. That there is no school district known as Webster school district in said county of St. Louis. That the lands described in the petition do not lie in the Webster school district. That no tax bill has been duly made or delivered to the said John A. Watson, plaintiff, as collector or otherwise. That no tax bill for said taxes as alleged was ever issued to the said John A. Watson by any person having competent power or authority to issue the same. That the said John A. Watson has no right or legal authority to ask or demand of or from defendant any sum whatever for or on account of any taxes for said Webster school district. That the said defendant is not obliged or in duty bound to pay the said sum of one hundred and fifty dollars and thirty cents, or any other sum, to plaintiff. That the pretended tax bill, ixpon which this action is founded, was, and is, irregxxlar upon its face, and was issued' without authority and was wholly and utterly void, and gives todhe said John A. Watson no right or authority to ask or demand of the defendant, or levy
Plaintiff then read in evidence the copy of the certified tax bill filed with the petition and the back tax book authorized by law and which are made prima facie evidence that the amount claimed is just and correct. Sec. 6837, R. S. 1879.
Plaintiff rested, and the defendant then read in evidence the original tax bills for the Webster school taxes for 1869 and 1870, both bearing the seal of the county auditor, which it was admitted were similar to those in Brown v. Harris, 52 Mo. 306. Defendant then read the depositions of one Coleman and Heath, the then clerk and auditor. Coleman testified that as clerk he did not extend the tax on the tax book for the Webster school tax for 1869 and 1870 ; and Heath that he did so as auditor. This being all the evidence the court found for the plaintiff. There were no instructions preserved in the bill of exceptions, and after judgment the defendant appealed to the St. Louis court of appeals, where the judgment of the circuit court was reversed, and the case ordered to be dismissed. Prom which latter judgment the plaintiff comes here.
I. It is insisted by the respondent that under the tax law of 1867 it was the duty of the school board “to determine the amount of the annual tax to be assessed ; to certify to the clerk of the county court, * * * the rate of tax levied * * * with the names of the taxpayers,” etc; and the clerk’s duty is “to extend the taxes so levied * * * ^011 -¿he tax book before
The assessment of property on which this rate of taxation was to be fixed by the school board is provided for in section 8, Acts 1867, p. 162, which says: “The same assessment on property which shall be made from time to time for state and county purposes, shall be deemed and used as the lawful and proper assessment in levying and collecting taxes and assessments authorized by this act; and such taxes and assessments shall be a lien upon and against the property so taxed and assessed, until the same shall be paid off and satisfied.” So that the assessing power under this section was the officer that made assessments “for state and county purposes.” The board of directors had nothing to do with the assessment. But the board “fixed the rate” or in other words, “levied the tax” on the assessment already made by the proper officer for the state and county. The clerk had nothing to do with the assessment or valuation of the property from which the taxes must be paid; nor with the “levy” of the tax, or “fixing the rate” of taxation. That was already done. It was his duty alone “to extend the taxes, so levied under the provisions of this act, upon the tax book.” Sec. 8, supra.
It would seem then that the defendant’s property was lawfully assessed for 1869 and 1870, by the officer whose legal duty it was to assess for state and county purposes; that the tax was duly and legally levied, or “the rate of tax levied” (which are clearly synonymous terms as used in this statute) by the school board. So
But the case at bar is. altogether different. This is not a seizure by authority of the auditor’s tax bill. It is not even a suit thereon. But it is a proceeding under the law of 1867, supra, to enforce the statutory lien for the taxes of 1869 and 1870 against the defendant’s prop, erty. If a legal lien exists; if the proceeding is a proper one under the statute, and the plaintiff made the proof necessary to satisfy the court that a tax is due and unpaid, it would seem that the plaintiff ought to recover. I quote again from section 8, Acts 1867, p. 162: “And such taxes and assessments shall be a lien upon and against the property so taxed and assessed, until the same shall be paid off and satisfied.” This statute ■clearly fixes a lien for the taxes on all property (real estate) assessed. And although under different statutes, the same general doctrine of lien for taxes is passed upon .and recognized in Blossom v. Van Court, 34 Mo. 394,
So, in the case at bar, the assessment and tax levy being valid, the lien is preserved, notwithstanding the illegal issue of the tax bill by the auditor, who had no authority to do so. Then section 6834 provides that the
No instructions are preserved in the bill of exceptions. The case was submitted to the court without a jury, and the facts, therefore, found by the court upon which it bases its judgment are incontrovertible here. This court can only review the law declared by the court below, and that court having been intrusted with both law and facts, we cannot review the evidence. Hamilton v. Boggess, 63 Mo. 233; Gains v. Fender, 82 Mo. 497. The judgment of the court of appeals is reversed and the cause is remanded with directions to that court to enter a judgment affirming the judgment of the circuit court.