85 S.W.2d 621
In the Matter of the Estate of FRANK L. HALL, FIDELITY NATIONAL BANK & TRUST COMPANY of Kansas City, a Corporation, Executor and Trustee, Appellant,
R.R. NACY, State Treasurer.
Supreme Court of Missouri.
Court en Banc, July 30, 1935.
Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.
Justin D. Bowersock and John C. Meredith for Fidelity National Bank & Trust Company and DePauw University.
(1) History of the legislation involved. R.S. 1899, sec. 299; In re Estate of Quirk, 257 Mo. 422, 165 S.W. 1062; Laws 1917, p. 126; Laws 1919, p. 723; Laws of 1921, p. 116; R.S. 1929, sec. 602. (2) The bequest to Fidelity National Bank & Trust Company in trust for DePauw University is not subject to the payment of an inheritance tax. (a) The intention of the Legislature, as expressed in the act, controls the construction of the statute. Koppel v. Rowland, 319 Mo. 602, 4 S.W. (2d) 816; State ex rel. v. Southwestern Bell Tel. Co., 316 Mo. 1008, 292 S.W. 1037; In re Estate of Quirk, supra. (b) Some office or function must be ascribed to each clause in the statute. State ex rel. v. Harter, 188 Mo. 516, 87 S.W. 941; Strottman v. Ry. Co., 211 Mo. 251, 109 S.W. 769; State ex rel. v. Roach, 258 Mo. 553, 167 S.W. 1008; Bowers v. Pub. Serv. Co., 328 Mo. 781, 41 S.W. (2d) 810, R.S. 1929, sec. 575; Little River Drainage Dist. v. Lassiter, 325 Mo. 493, 29 S.W. (2d) 716; State ex inf. v. Imhoff, 291 Mo. 617, 238 S.W. 122. (c) Expressio unius est exclusio alterius. State ex inf. v. Sweaney, 270 Mo. 692, 195 S.W. 714; Elsas v. Montgomery Elevator Co., 330 Mo. 604, 50 S.W. (2d) 130; State ex rel. Cobb v. Thompson, 319 Mo. 497, 5 S.W. (2d) 57; Sage v. Commonwealth, 196 Ky. 257, 244 S.W. 779; Dodd v. Independence Stove & Furnace Co., 330 Mo. 662, 51 S.W. (2d) 114. (d) When the Legislature amends a statute or enacts a new one differing in essential details, it is presumed to have known the prior state of the law and to have intended to make and made some change in the prior law. Decker v. Diemer, 229 Mo. 296, 129 S.W. 936; Grimes v. Reynolds, 184 Mo. 679, 83 S.W. 1132; Armour v. Lewis, 252 Mo. 568, 161 S.W. 251; State ex rel. v. Thomas, 203 Mo. App. 452, 220 S.W. 1007; Craig, Admx., v. Railroad Co., 248 Mo. 270, 154 S.W. 77; Leavell v. Blades, 237 Mo. 695, 141 S.W. 893; State ex rel. v. Hackmann, 293 Mo. 313, 240 S.W. 135; Reed v. Goldneck, 112 Mo. App. 310, 86 S.W. 1104; State ex rel. v. Dunn, 277 Mo. 38, 209 S.W. 110. (e) In cases of doubt and ambiguity the construction placed upon a statute by the administrative officials over a long period of time will not be disregarded by the court except for cogent reasons. State ex rel. McAllister v. Power Co., 283 Mo. 115, 223 S.W. 75; Westerman v. Supreme Lodge, 196 Mo. 670, 94 S.W. 470; State ex rel. v. Reichmann, 239 Mo. 81, 142 S.W. 304; State ex rel. v. Roach, 269 Mo. 437, 190 S.W. 862; State ex rel. v. Bank, 297 Mo. 397, 249 S.W. 619; Ex parte Carey, 306 Mo. 287, 267 S.W. 808. (3) The circuit court, if having jurisdiction at all, should have tried the case anew and appointed its own appraiser. Secs. 292, 293, R.S. 1929. (4) The Inheritance Tax Law, in so far as it vests in the probate court jurisdiction to assess the tax, violates the Fourteenth Amendment to the Constitution of the United States in that it deprives the beneficiary of its property without due process of law, and it further violates Article II, Section 30 of the Constitution of the State of Missouri, for the same reason and in the same manner. Cunningham v. Ry. Co., 165 Mo. 270, 65 S.W. 556; Tumey v. Ohio, 273 U.S. 510, 47 Sup. Ct. 437; In re Kingslake D. & L. Dist., 176 Mo. 557, 75 S.W. 679; Meyers v. Shields, 61 Fed. 713; In re Estate of Strom, 213 Mo. 1, 111 S.W. 534; State ex rel. v. McQuillin, 246 Mo. 586, 151 S.W. 444; State ex rel. v. Bird, 253 Mo. 569, 162 S.W. 119.
Roy McKittrick, Attorney General, John W. Hoffman, Jr., and Charles M. Howell, Jr., Assistant Attorneys General, M.E. Casey, Spurgeon L. Smithson, Manuel H. Davis and George W. Meyer for respondent.
(1) The history of the legislation involved indicates that Section 602, Revised Statutes 1929, was not intended to grant exemption to foreign charities. (a) The intention of the Legislature as declared in Section 30, Laws 1917, although omitted in subsequent enactment in Section 602, is still persuasive. Laws 1895, pp. 278-281; Laws 1899, pp. 328-336; Laws 1917, pp. 114-127, secs. 4, 30; Laws 1919, pp. 722-723; Secs. 575, 602, R.S. 1929; State v. Freeland, 300 S.W. 675, 318 Mo. 560; Dysart v. St. Louis, 11 S.W. (2d) 1045; Ewing v. Vernon County, 216 Mo. 692, 116 S.W. 518; Williams v. Railroad Co., 7 S.W. (2d) 392. (b) The intention expressed in earlier legislation indicates that Section 602 was never intended to apply to transfers to trustees in the first instance but to transfers from one trustee to another. Authorities cited above. (2) Section 602 properly construed affords no exemption for foreign charitable purposes. (a) Nature of the tax. State ex rel. McClintock v. Guinotte, 275 Mo. 314; Knowlton v. Moore, 178 U.S. 41; Stebbins v. Riley, 268 U.S. 137. (b) The burden is upon appellants to point out a specific exemption, this burden being placed upon appellants by Section 570. Secs. 570, 602, R.S. 1929. (c) Appellants attempted to read into Section 602 by implication the words "within or without the State." The fact that the Legislature did not say so while amending the section precludes the adoption of the meaning which the Legislature so plainly avoided expressing. R.S. 1929, sec. 602. (d) In passing the Act of 1917, the Legislature had the right to rely on a construction being made in harmony with public policy and prior judicial decisions that established the principle that prima facie a statute is confined to persons and things within the State and that foreign charities are not supported by tax exemptions unless clearly and unambiguously expressed. In re Estate of Quirk, 257 Mo. 422, 165 S.W. 1062; State ex rel. v. Wright, 251 Mo. 325, 158 S.W. 823. (e) The weight of authority is in accord with the Quirk case. In re Estate of Quirk, 257 Mo. 422, 165 S.W. 1062; In re Speed, 74 N.E. 809, 216 Ill. 223; People v. Women's Home Missionary Society, 135 N.E. 749, 303 Ill. 418; People v. O'Donnell, 158 N.E. 727, 327 Ill. 474; Price v. Edwards, 97 Atl. 57; In re Gopsill's Estate, 77 Atl. 793; Pierce v. Stevens, 91 N.E. 319; Catlin v. Trustees of Trinity College, 113 N.Y. 133; Kidder "State Inheritance Tax and Taxability of Trusts," p. 425; Minot v. Winthrop, 162 Mass. 113; Carter v. Whitcomb, 74 N.H. 482; People v. Merchants Trust Co., 328 Ill. 223; In Matter of Estate of Prime, 32 N.E. 1091, 136 N.Y. 347; In Matter of Balleis, 38 N.E. 1007, 144 N.Y. 132; Humphreys v. State, 70 N.E. 957; In re Crawford's Estate, 126 N.W. 774; Fergeson v. Townsend, 162 S.E. 490; In re McIntire's Estate, 34 Pac. (2d) 432; Morgan v. Ry. Co., 116 Kan. 175, 225 Pac. 1029. (f) The copies of former Attorney General's opinions and the evidence offered in aid of construction were not admissible and are not controlling. (g) If the construction for which appellants contend be sound, i.e., that a testator can do indirectly what the law forbids him to do directly, then our exemption statutes will exempt bequests for charitable purposes in Africa, as well as in Indiana, and municipalities in Japan, as well as municipalities in Missouri. In re Metcalf's Estate, 282 Pac. 32; In re Rahn's Estate, 291 S.W. 120, 316 Mo. 492; Morgan v. Railroad Co., 116 Kan. 175, 225 Pac. 1029; Zollman on Charities, sec. 211, p. 149. (3) Section 602 does not exempt a bequest in trust to a corporate trustee organized for profit. It is admitted and undisputed that the trustee, the Fidelity National Bank & Trust Company, was a corporation organized for profit and the bequest to it as trustee for a foreign institution was, therefore, not exempt from the transfer tax. Northern Securities Co. v. United States, 193 U.S. 401; State ex rel. v. Southwestern Bell Tel. Co., 316 Mo. 1008, 292 S.W. 1037; In re Robinson's Estate, 142 N.Y. Supp. 456; In re Cash's Estate, 187 N.Y. Supp. 246. (4) The assignment of error that "the circuit court, if having jurisdiction at all, should have tried the case anew and appointed its own appraiser" was not made an issue in the trial court and was not contained in the grounds of appellants' motion for a new trial and is, therefore, not presented for review in this court. Secs. 292, 587, R.S. 1929; Chap. 1, Art. XXI, R.S. 1929; Blankenship v. St. Louis Pub. Serv. Co., 71 S.W. (2d) 725. (5) Sections 580, 11782, Revised Statutes 1929, allowing probate judges a fee of two and one-half per cent of the amount of the inheritance tax for extra work and duties in looking...