Seibert v. United States (122 U.S. 284)

E. John Ellis, John Johns, and

This is a proceeding by mandamus in the circuit court of the United States for the Eastern district of Missouri. The alternative writ recites that in 1883 a peremptory writ of mandamus was issued by the court, commanding the county court of Cape Girardeau county, and the judges thereof, to make a levy on all the real estate and personal property in Cape Girardeau township subject to taxation, including statements of merchants and manufacturers doing business in said township, and that thereupon the county court, in obedience to the command of said writ, on the twenty-third day of May, 1883, during a regular term of said county court, made an order on their records, whereby it was ordered that, for the purpose of paying the judgments of Elisha Foote, the Ninth National Bank of New York, John T. Hill, Valentine Winter, and George W. Harshman, amounting to $14,288.20, and interest and costs, a tax of 2 per cent, be levied on all the real estate and personal property in Cape Girardeau township subject to taxation, including statements of merchants and manufacturers doing business in said township, and the clerk of the county court was ordered to extend said tax in a separate column on the tax book of said county for the year 1883; that, in obedience to said order, the special tax ordered to be levied as aforesaid was, by the clerk of said court, entered upon and extended in a separate column of the regular tax book of Cape Girardeau county for the year 1883; and, upon the completion of said tax book, the same was delivered, in the time and in the manner required by law for the year 1883, to James M. Seibert, collector, who was then and there the collector of taxes, duly elected and qualified as such, and acting therein for the year 1883; and the said collector was then and there ordered by the county court to proceed and collect the said special tax in the same manner as other taxes, state and county, were authorized to be collected for the said year 1883 in said county; and that, after the receipt of the said tax book, the said collector, claiming to be prevented from proceeding in the collection of said tax by an injunction issued by the judge of the Tenth judicial circuit of the state of Missouri, upon a petition therefor, filed in the name of the state of Missouri upon the relation of the prosecuting attorney of that county, announced his determination to abstain from all efforts to demand, sue for, or collect any part of said special tax, and refused to proceed further therein.

The return of the respondent, Seibert, to the alternative writ admits the facts therein stated, and sets out at length the petition for injunction referred to therein filed on the twenty-ninth of December, 1883. The e tition, filed in the name of the state of Missouri by the prosecuting attorney of the county, prays for an injunction against the collection of the tax, on the ground that it was not a state tax, nor a tax necessary to pay the funded or bonded indebtedness of the state, nor a tax for current county expenses or schools, or either, and 'that said county court, before making the levy and order as aforesaid, did not make or cause to be made an application to the circuit court of said county, nor to the judge thereof in vacation, for an order to have assessed, levied, and collected said two per cent. tax, nor was any such order in fact made by such court, or the judge thereof in vacation; that, on the contrary, said county court, in violation of the statutes in such cases made and provided and in usurpation of their power, have assessed and levied, and are now trying to have collected, said two per cent. tax at its assessed valuation of all the taxable property of said township, without said permission or order of said court, in violation of their duties and without authority of law.' And, further, that the levy of the 2 per cent. tax was made for the purpose of paying off a portion of a bonded debt contracted in behalf of Cape Girardeau township by virtue of the act of the general assembly of the state of Missouri, approved March 23, 1868, in aid of railroads, and is in violation of that act because levied on the personal property within said township as well as on the real estate therein.

The return further sets out that the injunction as prayed for was granted, and the respondent says that, in obedience to the said writ of injunction, he has ceased to collect or to endeavor to collect said special tax, the said injunction being still in force. The respondent in his return further states 'that he is ready and willing to do and perform every duty devolved upon him as collector as aforesaid, so far as he legally may, but submits whether he ought to be required to collect the said special tax so as aforesaid levied by the said county court of Cape Girardeau county, because, as he is informed by counsel, the same was not levied in the mode and manner required by the laws of the state of Missouri, as set forth in sections 6798 and 6799 of the Revised Statutes, concerning the assessment and collection of the revenue, and it is made a criminal offense, punishable by fine of not less than five hundred dollars and forfeiture of office, for any officer in the state of Missouri to collect, or attempt to collect, any tax or taxes other than those specified and enumerated in section 6798 of the Revised Statutes of Missouri without being ordered so to do by the circuit court of the county, or the judge thereof in vacation, in the manner provided and directed in section 6799 of said Revised Statutes. And respondent submits that the said special tax is not a tax specified and enumerated in section 6798 of the Revised Statutes of Missouri, and that no order was made by the circuit court of Cape Girardeau county directing the said county court to have assessed, levied, and collected such special tax as required by section 6799 of the Revised Statutes of Missouri, and that he is informed by counsel that the said levy of such special tax so as aforesaid made by said county court is illegal and void, and that respondent cannot collect, or attempt to collect, the same without violating the criminal laws of the state of Missouri.'

To this return the relator demurred generally. The demurrer was sustained, and a peremptory writ ordered to issue, and thereupon the respondent sued out the present writ of error.

D. A. McKnight, for plaintiff in error.

[Argument of Counsel from pages 287-290 intentionally omitted]

J. B. Henderson and ''Jas. M. Lewis'', for defendant in error.

MATTHEWS, J.