The State ex rel. Koeln v. Lesser
| Decision Date | 14 November 1911 |
| Citation | 141 S.W. 888,237 Mo. 310 |
| Parties | THE STATE ex rel. EDMOND KOELN, Collector, Appellant, v. HARRY LESSER et al., Executors |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.
Affirmed.
Edward W. Forristel and Frank H. Haskins for appellants.
(1) The city of St. Louis had authority to assess, levy and collect taxes on the property in question. Art. V, sec. 1, City Charter. (2) The State of Missouri had authority to assess levy and collect taxes on the property in question. Art. 10 Constitution. (3) The State, by statute, provided for the assessment, levying and collecting of taxes on the property in question. R. S. 1909, secs. 11334, 11348, 11357, 11387, 11519. (4) An abandonment of the soverign right to exercise the vital power of taxation can never be presumed. The intention to abandon must appear in the most clear and unequivocal terms. State ex rel. v. Johnston, 214 Mo. 662; Ry. v. Cass Co., 53 Mo. 27. (5) The situs for taxation of the shares of stock in a corporation is the residence of the owner. Ogden v. St. Joseph, 90 Mo. 529; In re Greenleaf, 184 Ill. 226; Danville B. & T. Co. v. Parks, 88 Ill. 170; Appeal Tax Ct. of Baltimore v. Gill, 50 Md. 377; Barrington v. Commissioners, 16 Pick. 572; Bacon v. Board, 85 N.W. 307; Dwight v. Mayor, 12 Allen, 316; Dyer v. Osborne, 11 R. I. 321; McKeen v. County of Northampton, 49 Pa. St. 519; San Francisco v. Fry, 63 Cal. 470; Holton v. Bangor, 23 Me. 264; Worth v. Commissioners, 82 N.C. 420. (6) It is not double taxation where the taxes are assessed in different jurisdictions. Judy v. Beckwith, 15 L.R.A. (N.S.), 142; In re Greenleaf, 184 Ill. 226. (7) The tangible property of a corporation and its shares of stock are separate and distinct kinds of property under different ownership and the taxation of both is neither double nor unconstitutional. Ogden v. St. Joseph, 90 Mo. 527; Danville B. & T. Co. v. Parks, 88 Ill. 170; Appeal Tax Ct. of Baltimore v. Gill, 50 Md. 377; Barrington v. Commissioners, 16 Pick. 572; Dwight v. Mayor, 12 Allen, 316; Dyer v. Osborne, 11 R. I. 321; McKeen v. County of Northampton, 49 Pa. St. 519; San Francisco v. Fry, 53 Cal. 470; Holton v. Bangor, 23 Me. 264; Worth v. Commissioners, 82 N.C. 420; Shelby County v. Union & Planters Bank, 161 U.S. 149; In re Greenleaf, 184 Ill. 226. (8) The taxation of the tangible property and the shares of stock of a corporation is not invalid even though both be taxed by the same State. Sturges v. Carter, 114 U.S. 521; Lee v. Sturges, 2 L.R.A. (Ohio) 556.
Lewis & Rice and McDonald & Taylor for respondents; Henry T. Ferriss and Joseph H. Zumbalen of counsel.
(1) Property within the city of Saint Louis which is subject to taxation for state purposes, is the only property subject to taxation for municipal purposes. Art. V, sec. 1, City Charter. (2) A valid assessment is an essential prerequisite to the lawful exercise of the power of taxation. The only method of assessment under the laws of Missouri of the property of individuals is fully set forth in chap. 117, art. 2, R. S. 1909. If this chapter and article do not provide for the assessment of shares of stock of foreign corporations, then they are not taxable under the laws of this State. Cooley on Taxation (3 Ed.), 644; Abbott v. Lindenbower, 42 Mo. 162; Valle v. Ziegler, 84 Mo. 214; State ex rel. v. Railroad, 114 Mo. 1; Kansas City v. Building & Loan Assn., 145 Mo. 50; St. Louis v. Wenneker, 145 Mo. 238; State ex rel. v. Cunningham, 153 Mo. 642. (3) Sec. 11348, R. S. 1909, contains the enumeration and a list of the property, the value of which is to be assessed annually for the purpose of taxation. The tenth subdivision of this section, upon which appellant relies, cannot be construed to include shares of stock of foreign corporations. (4) The history of the revenue laws of Missouri discloses a clear intention of the Legislature to omit from the subjects of taxation in Missouri the shares of stock of foreign and domestic corporations (except in specific cases such as banks, etc.). State ex rel. v. Railroad Co., 77 Mo. 203; Laws, 1857, p. 75; Laws, 1866, p. 124; Laws, 1871, p. 80; Laws, 1877, p. 376; secs. 11348, 11357, 11358, R. S. 1909. (5) There is no distinction between the taxation of shares of stock, or of the property, of foreign and domestic corporations in the laws of Missouri. The shares of stock of domestic corporations are not subject to taxation, and it necessarily follows that the shares of stock of foreign corporations are not subject to taxation under the law as it stands to-day and has stood since 1872. Valle v. Ziegler, 84 Mo. 214; State ex rel. v. Railroad, 77 Mo. 202; Sec., 11357, R. S. 1909. (6) The shares of stock of certain corporations are still taxed, the law relative thereto remaining practically the same as it was prior to 1872. These provisions of the law clearly limit this character of taxation to the property described in the several statutes and by implication eliminates those shares of stock not so described. Expressio unius exclusio est alterius. If it had been the intention of the Legislature to continue after 1872 the taxation of shares of stock of other corporations, proper provisions would have been made for their assessment. State ex rel. v. Railroad, 77 Mo. 202; Secs. 11,348, 11,357, 11,358, R. S. 1909. (7) Double taxation is not favored in Missouri or elsewhere. A tax upon property of corporations and upon shares of stock, whether the corporation be foreign or domestic, is double taxation, and the intent to impose such taxes will not be imputed to the Legislature unless clearly declared in the statute. There is no such declaration in the laws of Missouri. Railroad v. Shacklett, 30 Mo. 550; Scotland County v. Railroad, 65 Mo. 123; State ex rel. v. Howard County, 69 Mo. 454; State ex rel. v. Railroad, 77 Mo. 202; Valle v. Ziegler, 84 Mo. 214; Stroh v. Detroit, 131 Mich. 109. (8) The maxim, mobilia sequuntur personam, does not apply in Missouri unless so declared by statute, and therefore, the words "all other property" and "every other species of property" only refer to property actually within the jurisdiction of Missouri, or constructively brought within the jurisdiction by a specific legislation enactment. Any other construction would include every species of tangible property beyond the boundaries of the State which belongs to the residents of the State. St. Louis v. Wiggins Ferry Co., 40 Mo. 589; State ex rel. v. St. Louis Co. Ct., 47 Mo. 594; School District v. Bowman, 178 Mo. 654; Plattsburg v. Clay, 67 Mo.App. 497; State ex rel. v. Howard County, 69 Mo. 454; Valle v. Ziegler, 84 Mo. 218; Corn v. Cameron, 19 Mo.App. 573; People ex rel. v. Cunningham, 4 Hun, 595; Hoyt v. Commissioners, 23 N.Y. 224; Secs. 11348, 11337, R. S. 1909. (9) The situs of the shares of stock of a corporation is the residence of the corporation, not that of the owner. A tax upon the shares of stock of a foreign corporation is a tax upon property outside of the State, and, therefore, to be subjected to taxation, requires a specific legislative enactment. In all the States where shares of stock are taxed, they are mentioned in the statutes. The laws of Missouri contain no such provisions. Richardson v. Busch, 198 Mo. 174; Armour Bros. v. Bank, 113 Mo. 13; Jellenik v. Huron Copper Co., 177 U.S. 1; Railroad v. Shacklett, 30 Mo. 550; Caffery v. Coal & Mining Co., 95 Mo.App. 187; School District v. Bowman, 178 Mo. 654; Hoyt v. Commissioners, 423 N.Y. 224; People v. Commissioners, 4 Hun, 595; Cook on Corporations, sec. 485; Thompson on Corporations, sec. 2348. (10) All tax laws are in invitum and must be strictly construed. The statutes of Missouri cannot be construed to include shares of stock without violating this cardinal rule of interpretation applicable to all tax laws. State ex rel. v. Carleton, 224 Mo. 493; Corn v. City of Cameron, 19 Mo.App. 573; sec. 11348, R. S. 1909; Valle v. Ziegler, 84 Mo. 214. (11) The taxation of the shares of stock of a foreign corporation would be in violation of the Constitution of Missouri, which guarantees uniformity of taxation. Constitution, art. 10, secs. 3 and 4. (12) The taxation in Missouri of shares of stock in a foreign corporation would be in violation of the XIV Amendment of the Constitution of the United States, in that it would be the taking of property without due process of law. Union Transit Co. v. Kentucky, 199 U.S. 194; Sellinger v. Kentucky, 213 U.S. 200; Louisville Ferry Co. v. Kentucky, 188 U.S. 396; Telegraph Co. v. Kansas, 216 U.S. 1; Pullman Co. v. Kansas, 216 U.S. 56; Ludwig v. Telegraph Co., 216 U.S. 149.
OPINION
In Banc
Appellant, as revenue collector of the city of St. Louis, sued respondents to recover the amount of certain bills for taxes assessed against them as executors of the will of Julius Lesser, deceased.
The petition alleges that defendants were the owners and had charge and management of "taxable personal property in the city of St. Louis of the aggregate value of $ 89,300, on which taxes had been regularly assessed and the tax bills placed in the hands of the plaintiff as collector, who had used all lawful means to collect, but was unable to do so," etc. The amount of the tax bills was $ 1982.46, for which judgment with interest and costs was asked.
The defendants answered showing that the alleged "taxable personal property in the city of St. Louis" consisted of shares of stock in foreign corporations, all of which have their assets in other States and pay taxes thereon in such States. The ownership of the shares of stock by defendants in St. Louis is admitted and the regularity of the steps taken in...
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