Harris v. William R. Compton Bond & Mortgage Co.

• Decision Date: 02 July 1912
• Parties: O. T. HARRIS, Appellant, v. WILLIAM R. COMPTON BOND & MORTGAGE COMPANY et al
• Court: Missouri Supreme Court

149 S.W. 603

244 Mo. 664

O. T. HARRIS, Appellant, v. WILLIAM R. COMPTON BOND & MORTGAGE COMPANY et al

Supreme Court of Missouri

July 2, 1912

Appeal from Callaway Circuit Court. -- Hon. David H. Harris, Judge.

Affirmed.

H. N Eversole for appellant.

(1) It is not within the power of the Legislature under the Constitution to create special road districts having the powers and functions of the Fulton Special Road District, and Art. 6, Ch. 102, R. S. 1909, as amended, and the act approved March 18, 1911, authorizing special road districts to issue bonds and providing for the payment thereof, are unconstitutional and void. Under the Constitution and polity of Missouri, particularly as shown by the cases to which we call attention herein, the construction and maintenance of roads is a proper function of the county; taxes for road purposes are taxes for county purposes, and consequently under our Constitution, as construed and applied by the Supreme Court, the Legislature has no power or authority to deprive the county courts of their jurisdiction and control of the construction of roads and highways in any part of the county and transfer the same to a body of commissioners representing a subdivision of the county. State ex rel v. Railroad, 101 Mo. 120; State ex rel. v Railroad, 123 Mo. 72; State ex rel. v Railroad, 145 Mo. 596. The proceedings for the formation of the Fulton Special Road District of Callaway county were had under the provisions of Art. 6 of Chap. 102, R. S. 1909, Sec. 10576 to Sec. 10610, as amended. By Sec. 10576 it is declared that the provisions of that section authorizing the incorporation of these road districts "shall not apply to counties under township organization." State v. Gordon, 197 Mo. 55; District v. Huber, 212 Mo. 551. By Sec. 10577 as amended by an Act approved March 18, 1911 (Laws 1911, p. 370), it is declared that "every such district organized under the provisions of this article shall be a body corporate and possess the usual powers of a corporation for public purposes . . . and in that name shall be capable of suing and being sued and of contracting and being contracted with." The Legislature has thus provided for the creation of a public body with full corporate powers and has by further provisions of the statutes attempted to confer on that body certain important public functions. The question presented in this case is whether it is within the constitutional power of the Legislature to create such a corporation. People ex rel. v. Becker, 203 N.Y. 201. The revenues of the special road district are derived from the following sources: (1) one-fourth of all dramshop, pool or billiard table licenses collected by any city within the special road district (R. S. 1909, Sec. 10593); (2) a proportion of county taxes levied upon property within such road district based upon the amount annually appropriated or expended for road and bridge purposes; (3) one-half of all dramshop, pool or billiard table licenses collected by the county within the limits of the district (R. S. 1909, Sec. 10594); (4), a poll tax of two dollars and fifty cents upon each male inhabitant in the district and without the limits of any incorporated town or city; (5), a tax of not less than ten nor more than twenty cents on the $ 100 valuation "which shall be a part of the tax which may be levied for county purposes." (R. S. 1909, Sec. 10595.) These taxes (outside of the licenses and poll taxes) are treated as a part of the county taxation. It is expressly provided that the funds so provided shall be applied for working, repairing and improving the public roads only. The powers conferred upon the special road districts by the provisions of Art. 6, Ch. 102, R. S. 1909, as amended, have been substantially enlarged and extended by the Act approved March 18, 1911. By that act the board of commissioners of special road districts are authorized to issue district bonds to an amount including existing debt, not exceeding five per centum of the assessed valuation of such road district, to be ascertained by the assessment next before the last assessment for State and county purposes. Before such bonds can be issued the question of issuing the same must be submitted to a vote and must receive the favorable vote of "two-thirds of the voters voting at said election." The board of commissioners are authorized to sell the bonds to the best advantage and the proceeds are directed to be paid over to the treasurer of the district and by him disbursed on the order of the board of commissioners in payment of the cost of holding the election and in paying the cost of the roads in such districts, including bridges and culverts costing not more than $ 100 each. The board of commissioners is also authorized to "provide for the levy and collection of a direct annual tax upon all taxable property in said district, sufficient to provide for the payment of the principal and interest of the bonds so authorized, as they respectively become due." By the provisions of Sec. 10585, the board of commissioners is given "sole, exclusive and entire control and jurisdiction over all public highways within its district outside the corporate limits of any city or village therein," for the following purposes: (a), to construct, improve and repair such highways; (b), to remove all obstructions from such highways; (c), to exercise the "power, rights and authority conferred by general statutes upon road overseers" for the purpose above mentioned; (d), to rent, lease or buy teams, equipment, tools and machinery, all kinds of water power and all things needful to carry on such road work. The Act approved March 18, 1911, does not define the powers of the board of commissioners of the district in applying the proceeds of bonds, except that the same shall be disbursed on the order of the board of commissioners "in payment of the cost of holding said election and in paying the cost of roads in such districts, including bridges and culverts costing not over $ 100 each." This statute by necessary implication confers upon the board of commissioners of the district the power to construct roads and to use the proceeds of the bonds for that purpose, and the question which is presented is whether these functions properly belong to the county -- at all events in counties which are not under township organization -- and cannot be devolved upon a special road district created in the manner prescribed by the statutes. By Sec. 10, Art. 10 of the Constitution of Missouri it is declared, "The General Assembly shall not impose taxes upon counties, cities, towns or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town or other municipal purposes, but may by general laws vest in the corporate authorities thereof the power to assess and collect taxes for such purposes." Sec. 11, Art. 10, of the Constitution prescribes the limitations upon the power of counties to levy taxes for county purposes. The amendment to the Constitution adopted in 1908 (Laws 1907, p. 458; Laws 1909, p. 906) provides: "In addition to taxes authorized to be levied for county purposes under and by virtue of Sec. 11, Art. 10 of the Constitution of this State, the county court in the several counties of this State not under township organization and the township board of directors in the several counties under township organization may in their discretion levy and collect in the same manner as State and county taxes are levied, a special tax not exceeding twenty-five cents on each $ 100 valuation, to be used for road and bridge purposes, but for no other purpose whatever; and the power hereby given said county courts and township boards, is declared to be a discretionary power." Prior to the adoption of this amendment to the Constitution, this court has held that "road taxes" are county taxes and affected by the limitations contained in Sec. 11, Art. 10 of the Constitution. State v. Railroad, 101 Mo. 120; State v. Railroad, 123 Mo. 72; Webb v. County, 67 Mo. 353; State v. Railroad, 145 Mo. 596. The powers of taxation attempted to be conferred upon special road districts are essential for their existence; without these powers the creation of a special road district would be an empty form and the road district and its officers would be helpless, if they attempted to perform any of the functions conferred upon them by the statute. Hence, the powers of taxation are an integral part of the scheme of existence of these special road districts which cannot be severed from the remainder of the statute creating these special road districts, and if the power of taxation falls, the entire statutory scheme must fall with it. The decisions cited would seem necessarily to imply that the jurisdiction and control of the roads and bridges in a county are county matters which by the Constitution are to be entrusted to the county authorities and maintained out of the county levies. Nowhere in the Constitution is any provision to be found recognizing special road districts or authorizing their creation, either expressly or by necessary implication. On the contrary the scheme of the Constitution which recognizes counties, cities, towns and school districts as the public and political corporations which are to exercise the powers of government and which under the Amendment of 1908 confers upon counties and upon townships when counties are under township organization, the power of taxation for road and bridge purposes, preclude by necessary implication the creation of any other corporate body or function which should be vested with the power of taxation for road and bridge purposes and with the control and jurisdiction of roads and bridges, at all events, outside of the limits of the cities and townships which...