Des Moines & Mississippi Levee District No. 1 v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 29 February 1912
• Parties: DES MOINES & MISSISSIPPI LEVEE DISTRICT NO. 1 v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

145 S.W. 35

240 Mo. 614

DES MOINES & MISSISSIPPI LEVEE DISTRICT NO. 1 v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

February 29, 1912

Appeal from Clark Circuit Court. -- Hon. Charles D. Stewart, Judge.

Reversed and remanded.

O. M Spencer, F. T. Hughes and Palmer Trimble for appellants.

(1) The statute was passed after the railroad had been constructed and was an attempt to take from it just that much property and thereby impaired the obligation of the contract and violated both the State and Federal Constitutions. Cooley's Const. Lim., p. 721; Sturges v. Carter, 114 U.S. 519; Bailey v. Railroad, 4 How. (Del.) 389; Bridge Co. v. State, 18 Conn. 53; Railroad v Chappel, 124 Mich. 72; People v. Railroad, 52 Mich. 277; Kinnie v. Bare, 68 Mich. 625; Re Cheeseborough, 78 N.Y. 232. And the doctrine is supported by the decision of this court in Drainage Dist. v. St. Louis ___ Mo. ___. Where the question is raised as to the power of the State in such cases this court says that the police power of the State may be invoked to make such lands fit for use, productive and habitable. Most certainly the police power of this State was not invoked in the Act of 1907 to make this railroad habitable or fit for use. This railroad was chartered by the State of Illinois and impliedly so by this State, when it came in with its railroad, for the safe and convenient carriage of freight and passengers and it became obligated at its own expense to keep its right of way, track and transportation machinery in the highest possible degree of safety for such purposes, and it has the right to use all or so much of its revenues therefor. It did not agree to go in partnership with any drainage district to keep the latter's lands dry for any help back by such drainage district in keeping water off its track. This would necessarily change the relations of the railroad to the public and in so far transfer these duties to the drainage district. Suppose in such cases as shown by this testimony the levee should break and cause damage to shippers and passengers which would not otherwise have been caused, would not the railroad and drainage district be liable for such damages as being themselves a part of the drainage districts? These are important questions and go to show that the taking a railroad in as a part of a drainage district is a matter entirely foreign to the purpose for which the railroad was formed and that in no event should a railroad be a party to such undertakings. It would hardly be contended that a number of railroads owning right of way and depot grounds could form a levee or drainage district to keep the water off their lands and take in a lot of farm lands and make them help bear the costs, and yet the converse of this is just what is proposed by this law and proceedings. (2) Tax is a liability created by statute. City of St. Louis v. Newmons, 45 Mo. 138; Turner v. Burns, 42 Mo.App. 94; Moberly v. Hassett, 127 Mo.App. 11. There can be no tax where there is no law imposing it. There is no implied obligation to pay taxes. They are not contractual obligations, and this is especially so where a local tax is sought to be imposed for the especial benefit of the few. Every dollar's worth of property in the State stands absolutely exempt from tax unless there is a statutory law imposing it, so then you can not go back with a law and tax property which before that time was exempt any more under section 14, article 2, of the Constitution of this State than you could pass an ex post facto law as to crimes and their punishment. Cases supra; Louisville Water Co. v. Commonwealth of Kentucky, 170 U.S. 127; Waln v. Beverly, 55 N. J. L. 544; Livingston v. Railroad, 60 Mo. 515. This law would send the assessing board as far back as the organization of this district, probably in the ninetys, and to charge it and its railroad with a debt and lien on its property, without any question as to the thousands of dollars damages done to it, as shown in this evidence by the levee company, and to a time when even if the law had included the railroad and had the taxes been then properly assessed, such taxes would have been barred by the limitation laws of this State. Moberly v. Hassett, 127 Mo.App. 11. (3) Retroactive acts are prohibited by the Constitution of Missouri, sec. 15, art. 11. Under this Constitution (and the Constitution of the United States as well) the Legislature cannot go back and create or impose a tax or assessment on this defendant where during the time such property was exempt from such tax, such a law would be retrospective and void and deprive the party of his property without due process of law. It might go back and provide a remedy for collecting a tax where the property was legally bound but through some omission of the taxpayer or the taxing authorities the property was not legally assessed or the taxes paid, but not otherwise. Vanata v. Johnson, 170 Mo. 269; Livingston v. Railroad, 60 Mo. 516; State v. Voglessing, 183 Mo. 17; Waln v. Beverly, 55 N. J. L. 544; Sturgess v. Carter, 114 U.S. 511; Water Co. v. Commonwealth of Kentucky, 170 U.S. 127; Cook v. State, 101 Ind. 446; In re Pequest River, 42 N. J. L. 553.

C. T. Llewellyn for respondent.

(1) The fact that this act (Sec. 5708, R. S. 1909) was passed after defendant railroad was built would not effect its constitutionality. The validity of a special assessment does not rest upon any theory of the assent of the property-owner, or upon any theory of contract between the property-owner and the public. 1 Page & Jones Taxation by Assessment, secs. 15 and 35. Every statute will be presumed to be constitutional till the contrary plainly appears and it is only when it manifestly infringes some provision of the Constitution that it can be declared void. Deal v. Mississippi Co., 107 Mo. 464; Kenefick v. St. Louis, 127 Mo. 1; North Park Dist. v. Scarritt, 127 Mo. 642; State ex rel. v. Mason, 153 Mo. 23; Endlick on Statutory Construction, sec. 283. The constitutionality of special assessments for public improvements has always been upheld in this State. Levee Co. v. Hardin, 27 Mo. 486; Eyerman v. Blaksbey, 78 Mo. 145; Morrison v. Morey, 146 Mo. 543; Construction Co. v. Railroad, 206 Mo. 172; Ross v. Kendall, 183 Mo. 338; Meir v. St. Louis, 180 Mo. 391; Moberly v. Hogan, 131 Mo. 19; Gibson v. Farrell, 106 Mo. 437; St. Louis v. Speck, 67 Mo. 403; Garrett v. St. Louis, 25 Mo. 505; Lockwood v. St. Louis, 24 Mo. 20; Newby v. Platt County, 25 Mo. 258; Land & Stock Co. v. Miller, 170 Mo. 240; State ex rel. v. St. Louis, 67 Mo. 113. And the Legislature has a right to delegate the power to levy local assessments. 1 Page & Jones, Taxation by Asst., secs. 244 and 245; French v. Barber Paving Co., 181 U.S. 324, 158 Mo. 534; Merchants Exchange v. Knott, 212 Mo. 616. (2) There is no exemption from taxation of railroad property in this State. Even if such property was expressly exempted from taxation for county and state purposes, it would not be exempt from special assessments for benefits. Railroad v. St. Joseph, 39 Mo. 476; Railroad v. Passaic, 54 N. J. L. 340. (3) If the law making body, the Legislature, intended the act to be retroactive when passed, it is so. It is just a question of the intent of the Legislature. State ex rel. v. Walker, 80 Mo. 613; State ex rel. v. Auditor, 52 Mo. 578; State ex rel. v. Auditor, 41 Mo. 25. The act, sec. 5708, only changes the method of procedure, in estimating benefits. There is no vested right in any particular mode of procedure. Railroads were subject to assessment for the benefits before the passage of this act, simply as so much land, so many acres. Now this act subjects them to assessment also, but benefits are to be estimated by the mile instead of by the acre, there is no vested right impaired. Even if property was once exempt from taxation, the Legislature may subject it afterwards to tax burdens. Washington University v. Rowse, 42 Mo. 308. But the Legislature or Constitution of this State never has exempted railroads from special assessments for benefits received.

OPINION

GRAVES, P. J.

The plaintiff, "The Des Moines and Mississippi Levee District Number One," under its corporate name filed its petition in the circuit court of Clark county, August 24, 1908, asking that the defendant railway company be summoned into court to show cause, if any it had, why its roadbed and right of way should not be included in and made part of the levee district and be assessed with such benefits as it had received or might thereafter receive by reason of the improvements made and to be made by the said levee district. The petition was filed under the Act of 1907, and that portion relating to the course of proceedings reads:

"Before the proceedings had in this section shall be had, the board of supervisors shall file in the office of the clerk of the circuit court of the county in which such levee district is, or may be located, a petition reciting the organization of such levee district, the location of such railroad or railroads within its limits, the improvements made, or to be made, as shown by the report, maps, plans and profiles by the topographical survey of the topographical engineer and that the improvements already made or proposed to be made, will be of material benefit to such railroad company or corporation, and asking that such railway company or corporation be summoned into court to show cause why such railroad right of way, roadbed or track belonging to or owned by such railway company or corporation should not be included in and made a part of such levee district, and be assessed with such benefits as will, or have accrued to it by reason of the improvements made, or proposed to be made. Such railway company or corporation,...