Brooks v. Schultz

• Decision Date: 09 December 1903
• Citation: 77 S.W. 861,178 Mo. 222
• Parties: BROOKS, Appellant, v. SCHULTZ, Collector
• Court: Missouri Supreme Court

77 S.W. 861

178 Mo. 222

BROOKS, Appellant, v. SCHULTZ, Collector

Supreme Court of Missouri

December 9, 1903

Appeal from Cape Girardeau Circuit Court. -- Hon. Henry C. Riley Judge.

Reversed and remanded.

Frank E. Burrough for appellant.

(1) The limitations upon the power of municipal taxation in section 11, article 10, Constitution, are absolute and cover all taxes of every kind and description, and these limitations are self-enforcing. Arnold v. Hawkins, 95 Mo. 569; Black v. McGonicle, 103 Mo. 192; Barnard v. Knox County, 105 Mo. 382; State ex rel. v. Columbia, 111 Mo. 365. (2) Under section 12, the tax levy may be increased to pay interest and create a twenty-year sinking fund on an indebtedness up to five per cent of the assessed valuation; but only when authorized by a vote of a two-thirds majority of the voters voting at said election for that purpose. This is the extreme limit of constitutional taxation. Lamar Co. v. Lamar, 128 Mo. 188; Water Co. v. Aurora, 129 Mo. 540; Water Co. v. Lamar, 140 Mo. 145; State ex rel. v. Railroad, 164 Mo. 208; Lexington v. Lafayette Bank, 165 Mo. 671. (3) An indebtedness is an unconditional promise to pay a fixed sum at a specified time. Saline v. Neosho, 127 Mo. 627. (4) In all cases where tax levies in excess of the limitations prescribed in section 11 have been sustained, two important conditions existed: First, there was the creation of an indebtedness; second, the indebtedness was authorized by a two-thirds vote. Both these features are absent from the case at bar.

R. B Oliver and B. F. Davis for respondent.

(1) Our contention is that, in addition to the taxes so authorized to be levied ex proprio vigore by the Constitution by the various counties, cities and towns of the State organized and in existence or to be organized under section 11, article 10 under section 1 and section 10, article 10 the General Assembly by general law may vest in the corporate authorities of such counties, cities and towns power to collect taxes for municipal purposes in addition. By section 1, article 10, the taxing power granted by the General Assembly for all purposes is unlimited. Viewing section 11 from this standpoint, the words of said section, "the rate herein allowed to each city," can not apply to this library tax: First. Because this library tax is levied under a law of the General Assembly vesting in the corporate authorities of the city a power to assess this tax in direct words. R. S. 1899, sec. 6466; Laws 1901, p. 84. Second. Because the tax is levied under authority of section 10 as well as under authority of section 1 of article 10 of the Constitution. Third. Because the words of section 11, "the rate herein allowed to each city," only relate to such taxes as are levied under such section and not to taxes levied by authority of the General Assembly under section 10 or section 1. Fourth. Because to hold that no additional taxes could be authorized to be levied for any other purposes than that specified in section 11, article 10, would render void and absurd section 10, article 10. Fifth. Because no words are to be found in section 11, or anywhere else in the Constitution, directly prohibiting any other tax that may be authorized by the General Assembly to be levied. The words of said section, "Said restriction as to rates shall apply to taxes of every kind and description, whether general or special," can only relate to such taxes as may be levied by virtue of said section 11, article 10, and directly authorized by the Constitution and not requiring any legislative authority. The words, "Said restriction as to rates shall apply to taxes of every kind and description whether general or special," can only mean that no general or special taxes exceeding in amount the amount specified in that section, can be levied without a direct authority of the General Assembly conferred as provided in section 10. (2) But even should the court hold that sections 11 and 12 of article 10 are absolute limitations of the power of the General Assembly as contained in sections 1 and 10 of article 10, still we maintain that the library tax levy can be sustained under the power given in said section 11 to increase the tax levy for school purposes, by a majority vote in districts formed of cities and towns, the amount not to exceed one dollar on the one hundred dollars valuation. The tax at issue is levied to maintain and support a free public library, and a library is a modern educational institution, and an educational institution is a school; therefore, a tax levied for a library is a tax levied for school purposes and there is no doubt that under said section 11 a tax not to exceed one dollar on the one hundred dollars valuation may be levied by a majority vote.

OPINION

In Banc

VALLIANT J.

In September, 1902, Mr. and Mrs. Louis Houck of Cape Girardeau, offered to establish at their own expense in that city, a free public library, and to that end to donate to the city a certain lot, and to erect thereon a library building and equip it with furniture and books at a cost, exclusive of the value of the lot, of not less than $ 30,000, on condition that the city should levy annually a tax of two mills on the dollar valuation of taxable property in its jurisdiction, for the support of the library. The proposition was accepted by the city authorities who, acting as directed in section 6466, Revised Statutes 1899, caused an election to be held, at which a majority, but not two-thirds, of the votes cast were in favor of levying the proposed tax. The tax of two mills on the dollar was accordingly levied for this purpose. That levy was in addition to a tax of fifty cents on the hundred dollars imposed by the city authorities for general revenue purposes. Cape Girardeau has a population of 6,000, and is a city of the third class.

The plaintiff in this suit, who is a resident of that city, owning taxable property therein, payed the tax of fifty cents per hundred dollars, levied for general revenue, but refused to pay the two-mill tax for library purpose, whereupon the defendant, who is the city tax collector, seized certain personal property of the plaintiff with intent to sell the same to pay the library tax. The plaintiff, by this suit in replevin, took the property out of the tax collector's hands. At the trial it was conceded and is now conceded that the plaintiff was not entitled to recover if the tax was valid. The court held the tax to be valid, and rendered judgment for the defendant, from which judgment the plaintiff appeals.

Section 6466, Revised Statutes 1899, amended by the Act of March 9 1901 (Laws 1901, p. 84), confers upon cities of this class authority to levy a tax of two mills on the dollar valuation of taxable property in its jurisdiction for the special purpose of...