State ex rel. Cramer v. Hager

Sherwood, J. The circuit court granted a temporary injunction, restraining the judges of the county court of Cape Girardeau county, and others, from collecting a certain special tax of two per cent., ordered to be levied on all real and personal property in Cape Girardeau township, for the purpose of paying certain judgments rendered in the United States circuit court for the eastern district of Missouri, which judgments, were based on coupons attached to bonds issued under the provisions of the act of March 23, 1868, commonly known as the township aid act. On final hearing the temporary injunction was made perpetual; and this ruling was based on the express ground that the steps required by section 6799 had not been complied with, prior to extending the tax on the tax-books, and levying the same. It has been ruled by this court that taxes of the nature now in question, can only be levied and collected in the manner provided in said section, and that unless the methods prescribed are pursued, the failure to pursue them, when, as here, they are the conditions essential to the exercise of the power, will render the tax [455] invalid. State ex rel. v. Railroad, 87 Mo. 236. Here those methods, those conditions precedent, were not followed; and hence, the county court having no inherent power to levy a tax, and deriving its only authority from the state, must, of necessity, pursue the course in this regard, marked out by the sovereign authority, by its laws. State ex rel. v. Railroad, supra. Under the former ruling of this court, it is well established that the state may, through its proper officers, maintain a bill to enjoin public or municipal corporations from acting in contravention of the constitution and laws of the state. State v. Saline County Court, 51 Mo. 350; State v. Callaway County Courts, 51 Mo. 395; State ex rel. v. Sanderson, 54 Mo. 203; Ranney v. Bader, 67 Mo. 476; 2 High on Inj., secs. 1282, 1304. In the case at bar, there was ample ground for the interposition of the prosecuting attorney in his endeavors to keep the judges of the county court and other officers within the confines of their legitimate authority. Nor do I see that the matter being discussed is at all affected because the action of the county court was produced by the mandate of the federal court. If, as already seen, the county court was powerless to act, except when acting in conformity to express statutory conditions, it was still the duty of the judges to comply with those conditions, while yielding obedience to the mandate aforesaid ; for, outside of those statutory conditions, they were utterly powerless to act. Indeed, under section 6800, they were punishable for a misdemeanor, in failing to comply with the provisions of section 6799 before levying the tax. It does not stand to reason that their act could be valid and still, at the same time, punishable as a crime. State ex rel. v. Garoutte, 67 Mo. loc. Cit. 456. If the statutory provisions being discussed were of such a nature as to cut off those who obtained the judgments from enforcing the obligations [456] held by them, then the authorities cited on their behalf might apply. I understand that it is within the power ■of the state to change the remedy, so long as it does not essentially affect the right embodied in the contract; and that such change, thus made, does not infract the' rule that forbids the contract to be impaired. In this connection, the language used by Mr. Justice Swayne is apposite to this case: “It is competent for the states to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix, definitely, the time between the alterations of the remedy, which are to be deemed legitimate, and those, which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances.”' Von Hoffman v. City of Quincy, 4 Wallace, 535, loc. cit. 553; see, also, Ogden v. Saunders, 12 Wheat. 213; Cooley’s Constitutional Limitations [5 Ed.] 348, 349, 710, et seq. The point has not been made in this court,' nor was it in the court below, as to any defect of parties. I am inclined to the opinion, however, that as this proceeding did not deny the legality of the tax, but only the mere method of its collection, and as it was but a proceeding on the part of the state, through its prosecuting officer, to restrain the county officials within the bounds of their legitimate authority, that other parties were not necessary. I think a distinction may well be taken between a proceeding which looks to the absolute denial of a right, and one which merely seeks to prohibit or restrain the enforcement of that right in an unlawful way. All concur ; Norton, C. J., absent.