State ex rel. Wilson v. Rainey

Norton, J.

Wendell T. Davis, a citizen of Massachusetts, obtained judgment by default against Greene county, in the circuit court of the United States for the western district of Missouri, in the year 1875, in the sum of $13,382.40, for over-due interest coupons issued by said Greene county in favor of the Hannibal & St. Joseph Railroad Company to aid in building the Kansas City & Memphis branch of said road. To enforce this judgment the said United States circuit court issued a mandamus to the county court of Greene county, in obedience to which the said county court duly levied a tax of twenty cents on each $100 in value on all the taxable property in said county for the year 1878, which was duly extended on the tax-books, which were delivered to relator, as collector of said county, for collection. Defendant Rainey, a duly licensed merchant of said county, against whose goods, wares and merchandise a portion of said tax, amounting to the sum of $11.40, had been levied, refused to pay the same, and said tax remaining delinquent and unpaid, relator, as collector of said county, instituted this suit in the circuit court of Greene county against defendant, upon his bond as a merchant, to recover said tax. Defendants in their answer set up substantially that the judgment, for the payment of which the tax had been levied, was founded on interest *233 coupons detached from certain bonds issued by the county court of Greene county, to the Hannibal & St. Joseph Railroad Company, and that said bonds and coupons were issued without authority of law and were utterly void, and that,, therefore, the tax levied was void.

Upon trial the circuit court rendered judgment for plaintiff, from which defendants have appealed; and the-error assigned grows out of the action of the court in giving the following instructions, viz: (1) “That the judgment of the United States circuit court in favor of Wendell T. Davis, and against Greene county, is a final determination of the rights of the parties to that action, and is. conclusive of every fact necessary to uphold it.” 2. “That the order of the county court of date of February 6th „ 1878, is a levy of taxes to pay a judgment of the United States circuit court for the western district of Missouri, regular upon its face, and not for the purpose of paying interest coupons on bonds of the county, and although it, is admitted said judgment was rendered upon such coupons, the facts stated in the answer showing that the county was not liable thereon, came too late after final judgment,, and cannot be inquired into in this action.” The giving of these instructions over defendant’s objection, and the-refusal to give instructions asked by him directly the opposite of those given, constitute the error complained of.

■bonds*tax levied of Fetoaidlourts wiú not interferí3 The fact that the circuit court of the United States, had jurisdiction over the subject matter involved in thesu^ Davis against Greene county, as well as 'the parties thereto, is not, seriously questioned by counsel, and if it were, its jurisdiction in such matters is established by the following authorities: Cowles v. Mercer Co., 7 Wall. 121; Lyell v. Lapeer Co., 6 McLean 450; McCoy v. Washington Co., 3 Wall. Jr. 381; Weil v. Greene Co., 69 Mo. 281. The jurisdiction of the circuit court of the United States being thus established both over the parties to the suit and the subject matter of it, the judgment rendered therein is not *234 open to collateral attack, nor have we the power to review it and say that the Federal court committed error in rendering it. This power is conferred alone upon some court having appellate jurisdiction from the judgment of the United States circuit court, and can only be exercised by .such appellate tribunal when such judgment is brought before it for review either by appeal, writ of error or certiorari. Bernecker v. Miller, 44 Mo. 111; Reed v. Vaughan, 15 Mo. 137; McCormick v. Sullivant, 10 Wheat. 192; Kennedy v. Bank, 8 How. 586; Voorhees v. Bank, 10 Pet. 449. The cause of action in the case of Davis against Greene county was merged in the judgment, and the effect of the judgment was to establish conclusively against the county a debt which it was bound to pay, and the levy of the tax in question to pay it having been made in obedience to the mandate of the court making the judgment, and in conformity with the laws of the State then in force authorizing county courts to levy taxes for the payment of county indebtedness, the payment of such tax cannot be avoided on the ground that the bonds for the interest on which the judgment was rendered were void, for that question was conclusively determined against the county in the judgment rendered, and will so remain till reversed or annulled hy some court having the power to review it. State ex rel. v. Pacific, 61 Mo. 155; 2 Dill. Munic. Corp., § 351, p. 249; Supervisors v. U. S., 4 Wall. 435; Pitts v. Fugate, 41 Mo. 405; 98 U. S. 381; 9 Wall. 413; 50 Ill. 505; 25 Ind. 486; 15 Wis. 122; 29 Iowa 197.

2 judgment t?^1 binding0on all tax-payees. It has been argued by counsel with much plausibility and ability, that plaintiff is not bound by the judgment rendered in the case of Davis against Greene county, or the judgment rendered in the mandamus proceeding to compel the county court to pay, because he was not a party eo nomine in either proceeding. We have not been able to find, nor have we been cited to any authority sustaining this position of counsel. On the contrary, all the authorities we have ex- *235 ammed touching this point overthrow the position. In the case of Clark v. Wolf, 29 Iowa 197, the precise question was considered at length, and it was there held that a judgment against a county or its legal representatives, in a matter of general interest to all the people thereof, as one respecting the levy and collection of a tax, is binding not only on the official representatives of the county named in the proceeding as defendants, but upon all the citizens thereof though not made parties defendant by name. This we think is so both on principle and authority, for in suits of the character mentioned the legally constituted representatives of the county stand in the place of each citizen of the county who is liable to be called on as a tax-payer to contribute his proper proportion to liquidate the demand which a judgment may establish.

■S. municipal Setw<?en stated federai decisions. It has also been ably and earnestly insisted, that as this court in the case of State ex rel. Wilson v. Garroutte, 67 Mo. 445, held that the bonds, from which were taken the coupons on which the iudgmentin favor of Davis against Greene county was rendered, were void, it, therefore, follows that we •should disregard and hold for naught said judgment and all proceedings had under it, though such judgment was rendered and such proceedings were ordered by a court having full jurisdiction of the subject, and over whose judgment we have no appellate or revisory jurisdiction whatever. That a conflict exists between this and the Federal courts as to the validity of these bonds must be conceded. Such conflicts always bring up for determination, questions of a delicate, important and embarrassing character, which, when they arise must be so treated as to preserve the integrity of each tribunal respectively, without any encroachments upon the jurisdiction of either, leaving the responsibility of such conflicting adjudications upon the shoulders of those who make them. Such a question was so treated by this court in the case of the State ex rel. v. Holladay, 72 Mo. 499.

*236 5. power of courts INCOMPELLING levy of taxes, When there are two jurisdictions, independent of each other, having the right to pass upon such questions as are-involved in this controversy, these conflicts will occur, and when they do occur, neither jurisdiction should undertake to exercise appellate power over the other when none is possessed. There is a mutual and reciprocal rule recognized by all the authorities, that while the State courts may not interfere with the power of the Federal courts, neither shall the Federal courts interfere with those of the State. And while it may be safely affirmed, that when the law-making power has clothed a municipal corporation with the right to levy taxes to pay indebtedness contracted by it, a court possessed of jurisdiction to enforce the payment of such debt, may, by mandamus in a proper case made, compel the authorities of such corporation to levy such tax in conformity with the mode prescribed and to the extent of the power conferred by the law, it may on the other hand be also safely affirmed, that the authorities of such corporation can only be compelled to proceed to levy a tax in cases where the legislature has conferred the authority on the corporation either in express terms or by necessary implication. Neither the State nor Federal courts can invade the powers belonging to the legislative department and confer such power. The only function which belongs to them is to compel the exercise of the power, when conferred by the legislature, and when it is necessary that it should be exercised in order to the payment of a debt. If no such power has been conferred, the appeal in such case should be made to the legislature, and not to the courts. Meriwether v. Garrett, 102 U. S. Rep. 472; s. c., 23 Albany Law Journal 29.

This case is distinguishable from the case of the State ex rel. Watkins v. Macon Co. Ct., 68 Mo. 29, to which we-have been cited as sustaining the position of defendants’ counsel. In that case we refused a writ of mandamus to compel the county court to levy a tax to pay a debt against *237 the county established by a judgment, because the law authorizing the creation of that particular debt put an express limitation on the power of the county court to levy a tax to pay it, they being, in terms clear and unmistakable, limited to the imposition of a tax not exceeding the one-twentieth of one per cent in each year. This power had been exhausted by the court, and it having always levied the tax authorized, we refused the writ, mainly upon the express ground that no power had been conferred on the court to levy a tax in excess of that prescribed by the law; -and held that it was not the province of this court to compel the county court to exercise a power which the legislature had withheld and never conferred upon it.

6. taxes. The act of the general assembly approved March 28th, 1879, entitled an act “ concerning the assessment, levy and collection of taxes and the disbursement thereof,” to which our attention has been called, has no bearing on the question involved, inasmuch as the act by its terms refers only to taxes thereafter to be “assessed, levied and collected,” and not to such taxes which had been (as in this case) levied prior to the time the said act was passed, and which were in process of collection. We think the case was tried on the proper theory, and for the reasons herein given, the instructions given by the court were properly given. Judgment affirmed,

in which all concur, except Sherwood, C. J., who dissents.