State ex rel. Bauer v. Edwards

Maceaklane, J. This suit is for the enforcement of the lien upon certain lots in Jefferson City for city taxes, alleged to be due thereon for the years 1889, ’90, ’91, and ’92. The suit was commenced against E. L. Edwards, who was at the time the owner of the lots. Said defendant died testate, pending the suit in the circuit court, and the cause was revived' against his devisees under the will. The city is of the third class, under the general laws of the state, and relator Bauer is the collector thereof. The petition is in the usual form adopted in suits by county collectors to enforce the state’s lien, the basis of the suit being a tax bill for delinquent taxes. ✓Defendants by answer put in issue the validity of the assessment and plead the statutes of limitation to certain of the taxes. The other objections can be more conveniently noted in the opinion. Judgment was rendered for plaintiff and defendants bring the case to this court for review, by writ of error. I. The first objection urged by plaintiff in error is that it was not shown that A. M. Hough, who signs the petition as attorney for relator, was authorized, as required by the charter of the city, to prosecute the suit. It was admitted on the -trial that the city collector employed A. M. Hough, Esq., to prosecute the suit, and that his employment was approved by the council of said city. But it is insisted by defendants that the appointment was not valid and the attorney — 365 — had no authority to act because the employment does not appear to have been approved by the mayor. For the purpose of prosecuting suits for the collection of delinquent city taxes the collector is given power, with the approval of the mayor, “to employ such attorneys as he may deem necessary.” R. S. 1889, see. 7681. The mayor is the presiding officer of the council, and must be presumed to have cognizance of, and to approve, all its proceedings. The approval by the council implies, also, in the absence of proof to the contrary, the approval of the mayor. We think there is no merit in this objection. II. It is next objected that the suit was improperly revived in the names of the defendants, for the reason, as is alleged, that they are not joint owners of the lots against which the taxes are charged. It is not disputed that E. L. Edwards, the original defendant, was the owner of the land at the time of his death. Nor is it'claimed that the present defendants, in whose names the action was revived, are not the heirs at law and sole devisees of E. L. Edwards, deceased. The suit is not. to secure a personal judgment against the owner, but to enforce the lien of the city against the land. In case of the death of a defendant, pending a suit,the cause may be revived against the representative or successor of the deceased party. Where the suit is to recover real estate, or where the real estate is to be directly affected by the suit, the cause is properly revived in the name of the successor, that is, the person who succeeds to the rights of the deceased defendant in the land in question. The suit does not abate by the death and the fact that, under the will, the rights to which the parties succeed are several and not joint can make no difference for no personal judgment can be rendered against any of them. The judg — 366 — ment is against the lots for the taxes, penalties, and interest due on them respectively. Any defendant who makes no claim to any of the lots, can, by entering a proper disclaimer, be discharged from the suit, and any defendant who claims a several right to a particular lot can pay the taxes thereon and thereby secure a discharge, or he can defend against the particular tax. We are of the opinion that the suit was properly revived in the names of the heirs and devisees. No objection was made, in the circuit court, to the revival by any of the parties, and the rights of no defendant are injuriously affected by reason of the revival in his name. It may be true, as' charged by defendant, that, under the administration law, it is the duty of the executor to pay the taxes in question, but, though true, the lien on the land is not on that account released, and it furnishes no reason for abating the suit. The taxes and lien can be discharged by payment whether by the executor or the owner of the land upon which they are a charge. III. It appears that the taxes, in suit, were levied upon the assessment made by the county assessor for county and state taxes, and no other assessment was made. This was done under the Revised Statutes of 1889, section 1545 of which provides: “The assessment on real and personal property within the limits of the city, made by the assessor of the county or township, for county and state purposes, as corrected by the board of equalization, shall be taken as the lawful and proper assessment on which to levy and collect the municipal taxes of the city.” An act of the general assembly approved May 20, 1889, has this provision: “The assessment on real and personal property within the limits of the city, made — 367 — by the city and county assessors jointly, shall be taken as the lawful and proper assessment on which to levy and collect the municipal taxes of the city.” Acts, 1889, page 37, sec. 3. Defendants insist that a lawful assessment could only be made, under the act of 1889, by the joint action of the county and city assessor, and that made by the county assessor alone was absolutely void. On the other hand, plaintiff insists that the revised law repealed the act of 1889, though both were passed at the same session of the legislature. The law in force prior to the enactment of 1889, in respect to the assessment of property for city taxation, was the same as is provided by section 1545 of the Revised Statutes of 1889. Acts 1887, page 79, sec.76. The act of 1889 repealed all acts and parts of acts in conflict with it, and took effect on the day of its approval. The provision made for the assessment of property under the act of 1887 being in conflict with that provided by the act of 1889 was repealed by the latter act, which became the law, May 20, 1889. Section 6606, Revised Statutes of 1889, provides that, “all acts of a general nature, revised and amended and re-enacted at the present session of the general assembly, as soon as such acts shall take effect, shall be taken and construed as repealing all prior laws relating to the same subject; but the provisions of the Revised Statutes, so far as they are the same as those of prior laws, shall be construed as a continuation of such laws, and not as new enactments.” By section 6614 it is provided that the revised statutes shall take effect and go into operation from and after the first day of November, 1889, “except such acts passed by the present general assembly and incorporated therein as shall by their provisions take effect at a different time.” — 368 — Chapter 30 of the Eevised Statutes of 1889, in which section 1545 is included, was enacted as a revised bill and was approved June 18, 1889, and, under the provisions of sections 6606 and 6614, that part of it relating to the assessment of property for city taxation took effect November 1, 1889. The revised law, being the later, repealed such parts of the act of 1889 as were inconsistent with it. State ex rel. v Heidorn, 74 Mo. 411. The act of 1889 provided for a joint assessment by the county and city assessors, and the revised law required the assessment made by the county assessor to be taken. These provisions are irreconcilably inconsistent and the former was repealed by the latter. But the repeal was not effected until the revised law went into effect, November 1, 1889. The act. of 1889 was, therefore, in force from its approval, May 20, until its repeal November 1, 1889. The time for the assessment of property in cities of the third class is governed by the general law in respect to the assessment of property for state and county taxation, under which it is required to be made between the first days of June and January. Sec. 7531. It will be observed that the law requiring the joint assessment of the county and city collectors was in force from June 1 to November 1, 1889, and that requiring the assessment of the county assessor to be taken, was in force from November 1 to January 1. In assessing property the owner is required to list the property owned by him on the first day of June of the year the assessment is made, and the value is placed upon it by the assessing officers as it was on that day. The work of the assessor can not be done in one day, and he is given from the first day of June to the first day of January in which time he is required to complete the assessment. But the details of the assessment, when — 369 — completed, relate back‘to the first day of June, and must be taken as of that day, otherwise serious complications might arise as is shown in this case. The revised statute requiring the assessment of the county assessor to be taken as the assessment of the city made no provision for changing the work already begun under the act of 1889, and we must take the latter law as governing the assessments for that year, as it was the one in force on the first day of June. We must therefore hold that the assessment made in the year 1889 by the county assessor was no assessment for taxation of property for city purposes, and the levy of taxes upon it is void. The revised statute was in force when the subsequent assessments were made and the assessment of the county assessor was properly taken as the basis for the levy of city taxes for those years. IY. The action is not barred by the statute of limitation. The taxes collectible during the year 1889 did not become delinquent until January, 1890. Section 7670. The limitation on the time for commencing the suit is fixed by section 7692 at five years after delinquency. This suit was commenced May 4, 1894, and was within the time prescribed. The judgment is reversed and the cause is remanded with directions to enter judgment for enforcing the lien of the city for all taxes sued for except those levied upon the assessment made in the year 1889. All concur.