Board of Com'Rs v. Peter

• Decision Date: 24 December 1913
• Citation: 253 Mo. 520,161 S.W. 1155
• Parties: BOARD OF COM'RS OF TUBERCULOSIS HOSPITAL DIST. OF BUCHANAN COUNTY v. PETER.
• Court: Missouri Supreme Court

161 S.W. 1155

253 Mo. 520

BOARD OF COM'RS OF TUBERCULOSIS HOSPITAL DIST. OF BUCHANAN COUNTY v. PETER.

Supreme Court of Missouri.

December 24, 1913.

1. CONSTITUTIONAL LAW (§ 48)—STATUTES— VALIDITY.

A statute will not be held unconstitutional by the courts unless, after viewing it with every presumption in its favor, there is no reasonable doubt that it is violative of the organic law.

2. TAXATION (§ 38)—TAXING POWER—TUBERCULOSIS —"PUBLIC PURPOSE."

Laws 1911, p. 130, § 8, as amended by Laws 1913, pp. 143 et seq., establishing a tuberculosis district in B. county, and providing for the levy of a tax to support the same within such district, provided for the levy of a tax "for a public purpose," within Const. art. 10, § 3, providing that taxes may be levied and collected for public purposes only, etc.

3. TAXATION (§ 29)—CONSTITUTIONAL PROVISIONS —TAXING POWER—LIMITATION—HOSPITAL DISTRICT—"MUNICIPAL CORPORATION."

Const. art. 10, § 1, providing that the taxing power may be exercised by the General Assembly for state purposes only, and by counties and other municipal corporations under authority granted to them by the General Assembly for county and other corporate purposes, is a limitation on the sources of the taxing power, and hence did not authorize the Legislature to confer such power on a hospital district which could not be regarded as a "municipal corporation."

4. COUNTIES (§ 190)—COUNTY LEVY—LIMITATION —STATUTES—INVALIDITY.

Const. art. 10, § 11, provides that taxes for county purposes may be levied at a rate not exceeding 35 cents on the $100 valuation, and authorizes an increase of the rate for the erection of public buildings, etc., on authority granted by two-thirds of the qualified voters, etc. Held, that Laws 1911, p. 130, § 8, as amended by Laws 1913, pp. 143 et seq., creating the board of commissioners of the tuberculosis hospital district of B. county, and authorizing an additional levy for hospital purposes equal to 25 cents on the $100 taxable valuation, was violative of the Constitution and unsustainable.

En Banc. Appeal from Circuit Court, Buchanan County; Wm. D. Rusk, Judge.

Petition by the Board of Commissioners of the Tuberculosis Hospital District of Buchanan County, for the levy of a tax for the support of the district, under Laws 1911, p. 130, § 8, as amended by Laws 1913, p. 143 et seq., in which James J. Peter intervened and filed objections. From a decree denying such relief, petitioner appeals. Affirmed.

Corry C. Ferrell, C. F. Strop, and Culver & Phillip, all of St. Joseph, for appellant. Spencer & Landis, of St. Joseph, for respondent.

LAMM, C. J.

Plaintiff appeals from the judgment of the Buchanan circuit court in a proceeding to obtain an order from that court directed to the county court of Buchanan county requiring the latter to levy certain taxes theretofore "levied" by the Board of Commissioners of the Tuberculosis Hospital District of Buchanan County; the order being denied.

In 1911 the General Assembly enacted a statute prescribing a method for the creation of public tuberculosis hospital districts, the appointment of boards of commissioners for such districts when organized, and prescribing the duties and powers of such boards, among them the power to levy taxes, to establish and maintain public tuberculosis hospitals and dispensaries. Laws of 1911, § 8, p. 130. In conformity with that act an election was held in Buchanan county in November, 1912, resulting in a favorable vote, the organization of a district, and the appointment by the Governor of a board of commissioners (hereinafter called the board). Such board organized in conformity with the act and the district became "a body corporate and politic" by the name and style of the Tuberculosis Hospital District of Buchanan County. Section 2. In 1913 (Laws of 1913, p. 143 et seq.) the General Assembly repealed section 8 of the act of 1911, and in lieu thereof enacted four new ones, viz., 8, 8a, 8b, and 8c. There was also an emergency clause putting the amendatory act into immediate effect on its approval, which happened March 20, 1913.

A summary of sections 8, 8a, and 8b may not be amiss. (Section 8c pertains to bond issues to acquire lands and erect hospitals and improvements thereon, etc., but, as that power is not in question in this cause, we shall say nothing about it.)

Section 8 gives the board power by resolution to levy annually a tax of not exceeding one-fourth of 1 per cent. on each dollar of the aggregate of the assessed valuation of all property of every kind within said district, subject to taxation for state and county purposes, and shown by the last preceding assessment, to be used by the board for the support, maintenance, and operation, additions and improvements, or all other necessary and proper expenses of carrying out the purposes for which the district was created. Such resolution is to be certified to the proper prosecuting attorney or city counsellor, as the case may be.

Section 8a provides that the prosecuting attorney or city counsellor, as the case may be, on receipt of such resolution certifying that a levy had been directed, shall immediately present a petition to the circuit court of his county setting forth the facts and specifying the reasons why such tax should be assessed, levied, and collected; whereupon such court, on being satisfied that such levy is authorized by law, and that the assessment, levy, and collection thereof will not be in conflict with the Constitution and laws of this state, shall make an order directed to the county court, commanding it to have assessed, levied, and collected said tax, and shall enforce such order by mandamus or otherwise. This circuit court order is to be certified to the county court, and thereat it becomes the duty of such county court "to include the tax levy so ordered in the annual levy to be made for the current year for state and county * * * purposes." Thereat such levy shall be carried out on all the assessment books of property within the district and such taxes shall be collected by the collector at the same time and in the same manner that state and county taxes are collected. When collected, such tax is to be turned over to the treasurer of the board, and provision is made for suits to enforce payment or to collect the same without suit precisely as provided by the laws relating to collection of taxes, and such taxes are made a lien upon the property situate in the district the same as other taxes.

Section 8b prescribes that the board shall have power to make one tax levy of one-fourth of 1 per cent. of each dollar of the assessed value of taxable property in the district (to be ascertained as in section 8a) for the purpose of paying for lands condemned or purchased for tuberculosis hospitals, and for erecting improvements, reconstructing hospital buildings, etc., such levy to be subject to the same provisions enumerated in section 8a, and to be collected in the same way.

Following the passage of that amendatory act, to wit, on the 31st day of March, 1913, the board passed a resolution levying a tax of one-fourth of 1 per cent. of the assessed value, on all taxable property situate in said district, having regard to the assessment for state and county purposes for the preceding year, and such steps were taken thereafter that the prosecuting attorney of Buchanan county became charged with the duty of presenting a petition to and obtaining an order from the circuit court directing the county court to levy such tax. Such petition in the name of the board he presently presented, showing, inter alia, that the district had no lands, buildings, or other equipment to carry out the purposes for which it was created, and that the levy was necessary for the acquisition of lands, the erection of buildings, and the maintenance of hospitals for the treatment of persons suffering from tuberculosis, no levy having been theretofore made for such purpose. He further informed the court that the levy and collection of the tax were not in conflict with the Constitution or laws of this state. Presently a hearing was had on issues made by the pleading of one Peter, who intervened as a householder and resident taxpayer of the county, on leave granted. Intervener alleged that the valuation of the property situate in Buchanan county is in excess of $30,000,000 for taxation purposes; that under the Constitution (section 11, art. 10) there could not be levied for county purposes in said county a tax in excess of 35 cents on the $100 valuation; that a levy at that rate was the usual one in that county, and was necessary for county purposes, and that the levy of the proposed tax of one-fourth of 1 per cent. of each dollar, i. e., 25 cents on each $100 of valuation) would be in contravention of that constitutional provision; and, further, that not only is the amendatory act of 1913 unconstitutional in the particular mentioned, but that it was violative of sections 1 and 3 of article 10 of the Constitution, for that the purpose for which the levy is made is prohibited thereby. The court found the averments of the petition true except that one averring the constitutionality of the amended act. It held contra on that point, and refused to make the order on the ground that the act of the Legislature purporting to authorize such order violates the Constitution, and hence confers no jurisdiction to make such order. Accordingly it dismissed the petition and adjudged costs against plaintiff. As said, an appeal was prosecuted from the judgment of the court denying the order and dismissing the petition. The cause, advanced on motion, was submitted on briefs on both sides and oral argument by appellant.

There are propositions, some of law, others of fact, which it cannot be amiss to lay down as a foreword, to wit:

(a) Courts, out of solemn respect to the lawmaker, never impute to him an intention to circumvent, abrogate or impair a constitutional...