State ex rel. Gordon v. Hopkins

87 Mo. 519

Opinions

Nouton, J.

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 county, Missouri. At the time of the institution of said action, the defendant, John R. Hopkins, resided in Appleton township, in said county, which was not an adjoining township to that- of Osceola, in which Justice Gardner resided, and the defendant, Woodbury,'permanently resided in the City of Kansas, in the county o’f Jackson, which facts were known at the time to the respondent, his counsel, the court, and the officer to whom-the process was directed. The constable returned said process served on the defendant, Hopkins, in Appleton, township, St. Clair county, and returned the defendant, Woodbury, not found ; whereupon the justice issued ant order of publication for the defendant, Woodbury, which was duly published.

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 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-of Coil v. Pitman's Adm'r, 46 Mo. 52, this court,' in' speaking of the jurisdiction of county courts, said “that when the statute has not clearly devolved jurisdiction on the county court, we are not disposed to give it by implication; ” and in the case of the State ex rel. v. Shortridge, 56 Mo. 126, in speaking of inferior courts, it is said: “There can be no such thing as an implied power in a county court to levy a tax. The power must be clearly and expressly given by statute ;” and in the case of Jefferson County v. Cowan, 54 Mo. 234, it was observed that a more salutary rale does: not exist, nor one longer sanctioned by reason, experience and authority than that which circumscribes courts of limited powers and statutory origin within the confines of the statute which gives them, being, and pronounces all their acts void which overstep the narrow boundary.

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,, which former section is as follows: “If on the first day of January, 1878, any of said lands or town lots contained in said ‘back tax book’ remain unredeemed, it shall be the duty of the collector to proceed to enforce the payment of the taxes charged against such tract or lot, by suit in the courts of competent jurisdiction of the county where the real estate is situated, which said courts shall have jurisdiction, without regard to the amounts sued on, to enforce the lien of the state or such cities, and for the purpose of prosecuting suits for taxes under this act, the collector shall have power, with the approval of the county court, or 'in such cities, with the mayor thereof, to employ such attorneys as he may deem necessary, who shall receive as fees in any suit such sum, not to exceed ten per cent, of the amount of taxes actually collected and paid into the treasury, as may be agreed upon in writing and approved by the county court, or in such cities, the mayor thereof, before such 'services are rendered, which sum shall be taxed as costs in the suit and collected as other costs, and no such attorney shall receive any fee or compensation for such services, except as in this section provided, and it shall be the duty of the collector, when suit shall have been commenced against any tract of land or town lot on said ‘back tax book,’ to note opposite said tract or lot, such fact, also, against whom suit has been commenced.”

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 jurisdiction -in such, cases, is manifest from the fact that while in the general law creating justices of the peace, •conferring j urisdiction upon them and authorizing them to hold courts for the purpose of exercising the jurisdiction conferred, nothing is to be found empowering them to hear and determine any cause for the enforcement of :alien against real estate, except in mechanic’s lien cases, to a limited extent; but, on the contrary, a positive prohibition is to be found declaring that “no justice of the peace shall have jurisdiction to hear or try any action ■when the title to any lands or tenements shall come in •question and be ■ in issue, nor of any strictly equitable proceeding.” Sec. 2837, R. S. While it is neither contended that said section 5 of the. act of 1877 confers jurisdiction, nor that the general law creating justices and defining their jurisdiction gives them power to try such causes as the one before us, it is insisted that the power was given in an amendment made to said section 5 by the general assembly in 1879. Acts 1879, p. 188, sec. 4. The amendment made by said section 4 of the act of 1879 to said section 5 of the act of 1877, consisted in adding to it the following: “And in all cases before justices of ihe peace where suit is brought for the enforcement of liens as above, where summons shall have been issued .against- any defendant, and the officer to whom it is directed shall make his return that the defendant cannot be found, the justice of the peace before whom the suit is pending, being first satisfied that the summons cannot be' .served sh ill make the order as above; and every order of publication against non-resident defendants shall be published in some newspaper published in the county where-the suit is pending, or if there be no newspaper published in such county then said order shall be published in any newspaper published nearest the county where the suit is pending, to be designated by the justice of the peace before whom the suit is pending; the publication shall be for four successive weeks, the last insertion to be at least ten days before the day named in said •order.” It farther provides as to how the proof of publication shall be made, and for the rendition of judgment in case of default and authorizes the taxation of certain •costs.

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, with the further provision that such courts should have jurisdiction without regard to the amount sued for. At the time of this enactment there were only two ¡classes of courts in the state which were courts of competent jurisdiction to entertain such suits as it was made the duty of collectors to institute. These were circuit courts and courts of common pleas, and of the latter there were but five, viz: one in each of the counties of Greene, Piké, Marion, Randolph and Cape Girardeau; all of which were limited in jurisdiction as to the amount involved in sures brought in them, and this was doubtless in the mind of the legislature when the provision as to amount was placed in the law. The amendment of the section left the duty, which it imposed upon collectors to bring these suits in courts of competent jurisdiction,unchanged," and just where it was before the amendment, and the most that can be said of the amendment is that it raises an implication that the framers of it supposed that under the general law justices’ courts were courts of competent jurisdiction in that class of cases, which implication is, as I have attempted to show, rebutted by the general law, which, instead of giving such jurisdiction, absolutely forbids it.

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 expressly declared that “no justice of the peace shall have jurisdiction to hear and try any action * * * where, the title to any lands or tenements shall come in question and be in issue, nor of any strictly equitable proceeding.” When the fact is considered that justices’ courts are not courts of record, that the dockets which justices are required to keep, as well as the papers in causes tried before them, are liable to be lost, mislaid or destroyed in transmission from one justice to his successor or successors in office, the wisdom of the statute denying to them jurisdiction in any case involving title to real estate becomes manifest. ' In order to determine that justices of the peace have jurisdiction in the class of cases to which the one before us belongs, it must not only be held that said section 2837 is repealed by implication, but that this result is accomplished by a statute which does not expressly, but at the most only by implication confers a jurisdiction which said section denies. Such holdings as these would be violative of two salutary rules of law: first, that a justice of the peace cannot take jurisdiction by implication ; second, that repeals by implication are not favored and are only allowable when a later statute is so repugnant to and irreconcilable with a former one that both cannot stand together.

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 may be said that the principal question discussed was as' to whether there was enough in the section, as amended, to indicate that a justice of the peace could make an order of publication, and in holding that there was, it was observed that the jurisdiction of the justice was incontestable. The question of jurisdiction as to subject mat-' ter was not discussed in the opinion. In the case of State ex rel. v. Staley, supra, the former case was simply followed, also without discussion of the question. For the error committed in overruling the motion to quash the execution, the judgment will be reversed and the cause remanded with directions to the circuit court to sustain the same.

Judges Sherwood and Ray concur. Judge Henry dissents. Hough, C. J., absent.