State ex rel. Grether v. Maguire

52 Mo. 420

• Court: Supreme Court of Missouri
• Decided: March 15, 1873
• Status: Published

Opinion

Adams, Judge,

delivered the opinion of the court.

The defendant was collector of St. Louis County, and the relator applied to him as such for an auctioneer’s license on the 19th of April, 1871. The defendant refused to issue the license unless the relator would pay a County tax to bo levied on the license, — the tax had not been levied by the County Court at that time — but the County Court on the next day April 20th, 1871, levied a county tax on all licenses, including auctioneers’. The relator without further application, on the 21st of April, had an alternative mandamus issued and served on the relator.

The defendant made return of the facts and the relator demurred to the return, and the court overruled the demurrer and gave judgment thereon in favor of the defendant.

It appears from the return that the County Court had made a general levy, for county purposes in June, 1870, for the year ending August 31st, 1871, on all property that had'been assessed, but omitted to make any levy on licenses made taxable by the law for State purposes, and on the 20th of April, 1871, the County Court supplied this omission by a proper order to that effect.

The County Court undoubtedly had the power to make the levy in question, and their omission to do so in the first order did not extinguish their authority. "When this omission was brought to the attention of the court, it was its duty as the ministerial agent of the county, to supply the defect.

When the tax was levied it became an incumbrance on the license, and the proper time to make the collection is at or before the delivery of the license. (See State ex rel. Meyers vs. Spencer, 49 Mo., 342.)

Let the judgment be affirmed.

Judge Sherwood absent The other Judges concur.