State ex rel. Gordon v. Hopkins

Henry, J.,

Dissenting. — Dissenting from the foregoing opinion, I shall briefly state the reasons for my-dissent. I have never entertained a doubt that the general assembly has conferred jurisdiction upon justices’ courts to enforce the state’s lien for taxes. This court has so held in two cases, and thousands of acres of land, <on the faith of those adjudications, have been purchased under executions issued upon judgments rendered by justices of the peace in such cases, and, upon the principle of stare decisis alone, they should be adhered to. But there is no necessity for invoking that doctrine to sustain these decisions.

Sections 6836, 6837, 6838 of the revenue law, distinctly confer the jurisdiction, and regulate the practice of justices’ courts in suits to enforce the state’s lien for taxes. ■ I do not question the doctrine that such inferior tribunals have no jurisdiction, except such as is distinctly conferred upon them by the legislature, and, when any. doubt exists on that question the jurisdiction should be denied. But where the intent to confer the jurisdiction is clearly deduclble from the language employed by the legislature, the doctrine has no application. Section 68^3 *531provides that suits may be instituted to enforce the payment of taxes, “in the courts of competent jurisdiction of the county,” and “in all cases before justices of the peace, where suit is brought for the enforcement of liens as above, when summons shall have been issued,” and return is made that the defendant cannot be found, the justice shall make an order of publication, which shall be published, etc. Section 6838 provides that a transcript of the judgment, rendered by a justice in such case, may be filed in the office of the clerk of the circuit court, who, upon application of the collector, shall issue a special fieri facias, and section 6837 provides that, “In all suits under this chapter, the general laws of the state, as to practice and proceedings in civil cases, shall apply so far as applicable, and not contrary to this chapter.”

Can it be doubted that the legislative intent was to confer jurisdiction upon justices’ courts in suits for taxes ? Not only are there special provisions applicable to those courts, but by a general provision, the practice and proceedings in civil cases, as prescribed by the general law, are expressly applicable to all suits for taxes in whatever court instituted, provided they are not contrary to the general revenue law. That portion of section 6836, which declares that, “In all cases before justices of the peace,” etc., was an amendment to sections of the act of 1877, ■adopted in 1879. Why was it enacted ? Had the general assembly nothing in view to accomplish by its enactment ? To say the least, of itself, it is a recognition of the justices’ jurisdiction, and certainly has effect as a legislative construction of the preceding clause, by which jurisdiction was conferred in these cases, “upon the courts of competent jurisdiction of the county, without regard to the amount sued for.” This might not have been sufficient, without further legislation prescribing the practice in such proceedings before justices of the peace,' but, in the subsequent sections this ds supplied, and all that was required, even by the argument in the majority *532opinion, was a formal declaration that justices of the peace should have jurisdiction in • such cases, and that the legislature so intended, and so construed their own-legislation, is as manifest as if it had been declared in that form.

But, to place the matter beyond all controversy, and to remove any doubt, if the language of the above1 sections admitted of any, the emergency clause in the act of 1879'declares that: “ This act shall take effect, and be in force fxxxm and after its passage, the emeigency being to save the cost attending the bringixxg of suits for small amounts in courts of record, and the delay attending the collection of taxes by sxxch suits * * * and to settle the indefinite and uncertain jurisdiction of courts.” Section 5, of the act of 1877, did not contain that portion of section 6836, supra, relating to jxxstices of the peace, while sections 6837 and 6838 of the revenue law were exnbodied in that act, and these several sections gave rise to the controversy with respect to the jurisdiction of justices of the peace, and it is with reference to-that question that it is declared in section twelve of the act of 1879, that the emergency is, “ to settle the indefinite and uncertain jurisdiction of courts,” and this, in connection with the further declaration in that emergency clause, that it is “to save costs of bringing suits for small amounts in courts of record,” and “ the delay attending the collection of taxes by such suits f leaves it beyond any doubt or questioxx that the intent of sections 6836, 6837 and 6833 was to give jurisdiction to justices of the peace to enforce the state’s lien for taxes. Such being the case it is not for the judiciary to prescribe the formula in which that intent should be expressed by the legislature. What we have to do is to ascertain that .intent from-.the-language employed in the act, and when clear, to give it effect-.

It xnay have been bad policy to confer such jurisdiction upon justices of the peace, but, as a judicial tribu*533nal, we have no concern with that question. I am not, however, of the opinion that it is unwise legislation. I think it a salutary and necessary law, intended to provide a summary and less expensive mode for the collection of taxes than the slow, tardy and expensive proceeding in the circuit court. It is in the interest of the property holder who, as every citizen should, pays his taxes, and for years, in this state, this class of our •citizens have not only paid theirs, but the taxes of others who pay none, hoping, with too much ground to base the hope upon, that on some technicality the courts would relieve him of the burden imposed upon his prop•erty.