ON MOTION NOE EEHEAEING-.
Thomas, J.We desire to state that what was said in the original opinion, in reference to the estoppel of the city of St. Louis to deny the validity of the listing of the boats in question for taxation, was intended to apply to the record before us, as without' this explanation our language might seem too sweeping. We assumed that the defendant had listed its property for taxation in St. Louis and had paid the taxes levied thereon to the city, and upon that assumption we held *89the city was estopped from denying the validity of the assessment or tax; that we were justified in assuming this, we quote from the argument of the city attorney as follows, the italics being ours:
“The fact that the defendant made return of the tugs and transfer barge in question and paid taxes thereon in the city of St. Louis does not entitle it to the benefit of the forty per cent, reduction, for the ordinance contains a further requisite, that is, that the owner of such tugs should also be a resident' of the city of St. Louis. It was defendant’s own concern if it paid taxes in St. Louis on property which was not taxable under the laws of this state. St. Louis v. Ferry Co., 11 Wall. 423. The defendant could not, by voluntarily paying taxes which it was not obliged to pay, ■become a resident of the city of St. Louis, or bring itself within the forty per cent, exemption of the ordinance.”
If a city can collect and retain taxes levied by its officers and then claim that it is not estopped from denying the validity of such taxes, we confess to an inability to understand what estoppel means. If the boats in question were not properly taxable in St. Louis, the city might have a remedy, but it must first refuse to receive the tax levied, or if received refund or offer to refund it. As long as it retains the tax, it cannot take advantage of its own wrong and stultify itself by asserting that the property was not subject to taxation within its limits.
There is no federal question involved in this case and therefore the motion to transfer it to the court in banc and the motion for rehearing will be denied.
All concur.