Kleban v. Morris

• Citation: 247 S.W.2d 832,363 Mo. 7
• Decision Date: 14 April 1952
• Docket Number: No. 2,No. 42693,42693,2
• Parties: KLEBAN et al. v. MORRIS et al
• Court: United States State Supreme Court of Missouri

Page 832

247 S.W.2d 832

363 Mo. 7

KLEBAN et al. v. MORRIS et al.

No. 42693.

Supreme Court of Missouri, Division No. 2.

April 14, 1952.

Byron Spencer, James T. Britt and Solbert M. Wasserstrom, Kansas City, James T. Blair, Jr., Jefferson City, Spencer, Britt & Browne, Kansas City, of counsel, for plaintiffs.

J. E. Taylor, Atty. Gen., and Gilbert Lamb and Robert R. Welborn, Asst. Attys. Gen., for Morris and others.

Lewis H. Cook, Jefferson City, for Central Missouri Trust Co.

BOHLING, Commissioner.

Melvin Kleban, Harry Sager and Maurice H. Schwartz, plaintiffs, originated this action by filing a petition in the Circuit Court of Cole County, Missouri, for the purpose of recovering payments of 'use taxes' on motor vehicles purchased outside the state for use on the highways of Missouri under statutory provisions thereafter held unconstitutional and invalid. Plaintiffs named as defendants the State of Missouri and the following officials of the State of Missouri in their several official capacities and also as individuals, to wit: M. E. Morris, as Treasurer, W. H. Holmes, as Auditor, G. H. Bates, as Director of Revenue, and E. L. Pigg, as Comptroller, and Central Missouri Trust Company, as a private corporation and as a depository of the State of Missouri. The question for determination, as in the circuit court, is: May plaintiffs maintain this suit against the named defendants? The trial court dismissed plaintiffs' petition and they appealed.

The parties mention a pending $200,000 appropriation for refunds to use taxpayers, H.B. 496, Sec. 10.270, 66th General Assembly, but plaintiffs say approximately $800,000 of use taxes were collected.

Briefly of the background. The Sixty-third General Assembly re-enacted the Missouri Sales Tax Act of which Sec. 11412 was a part. Laws 1945, pp. 1865, 1870. Thereafter, the Sixty-fourth General Assembly re-enacted, among others, said Sec. 11412, 2 Laws 1947, pp. 431, 433, Sections 144.060, 144.070, 144.440, 144.450 RSMo 1949, V.A.M.S., which re-enacted section provided, among other things, that persons purchasing motor vehicles (for instance, outside the state) for use on the highways of this state pay an equivalent of said sales tax prior to the issuance of a certificate of title for the motor vehicle, Sec. 11412(c), with specified exemptions, Sec. 11412(d), one provision exempting 'motor vehicles having a seating capacity of ten passengers or more', and another exempting motor vehicles upon which a sales tax had been paid to Missouri. This act became effective July 18, 1948. 2 Laws 1947, p. 461. In State ex rel. Transport Manufacturing & Equipment Co. v. Bates, 359 Mo. 1002, 224 S.W.2d 996 (rehearing denied Dec. 12, 1949), it was held that a use tax was a valid and constitutional tax, 224 S.W.2d loc. cit. 999; that the General Assembly could designate for use tax purposes motor vehicles upon which sales taxes had not been paid to Missouri and which were required to be registered in Missouri, 224 S.W.2d loc. cit. 1000; but the exemption of motor vehicles having a seating capacity of ten passengers or more was invalid, 224 S.W.2d loc. cit. 1000; that the invalid exemption caused the 'use tax' levied by said Sec. 11412 to be unconstitutional, 224 S.W.2d loc. cit. 1001, and we issued our writ of mandamus that respondent perform the ministerial duty of issuing a certificate of title to relator for a motor vehicle purchased in North Carolina for use on Missouri highways without requiring the payment of said use tax.

The petition is in six counts for the purpose of presenting two alternative theories as to the capacity of the parties defendant and three alternative theories as to the capacity of the parties plaintiff.

The alternative theories respecting the parties defendant are: (a) that they are suable in their official capacities (Counts I, III and V); or (b) if not suable in their official capacities, they are suable in their individual capacities (Counts II, IV and VI).

The alternative theories respecting the parties plaintiff are: (a) that plaintiffs are representative plaintiffs in a true class action; that is, an action where the right sought to be enforced is common to the whole class (Counts I and II); (b) that they are representative plaintiffs in a spurious class action; that is, an action where the rights are several but common relief is sought (Counts III and IV); or (c) that the named plaintiffs have several causes of action which they have joined in one suit under the permissive joinder provisions of the Civil Code of Missouri (Counts V and VI).

Other than issues going to the right of plaintiffs to maintain this action against the named defendants, the sufficiency of plaintiffs' petition is not at issue and it is not necessary to state the allegations in detail.

Plaintiffs' principal theory upon which they rely to sustain their contentions here is contained in Count I of the petition. Said count contains allegations, briefly stated, to the effect that numerous persons were forced to pay the unconstitutional use tax; that all such persons constitute a class and are so numerous it is impractical to bring all before the court; that plaintiffs sue for all persons in like situations; that they paid the use tax, which tax was thereafter held unconstitutional as aforesaid; that the State, including the defendant officers, illegally collected and received vast sums under said unconstitutional tax and delivered the same to defendant banking depository, which continues to hold the same; that the amounts so collected and from whom collected are unknown to plaintiffs but appear upon the official records of defendants and constitute a trust fund for the benefit of those from whom said tax was wrongfully exacted; that said payments were made involuntarily and under duress as the motor vehicles could not have been used on the Missouri highway without incurring civil and criminal liability; that the exaction of and defendants' failure to refund said payments constitute a deprivation of property without due process of law in violation of specified State and Federal constitutional provisions; that under Sec. 11441, R.S.1939, Laws 1945, p. 1878, Section 144.200 RSMo 1949, V.A.M.S., it is the duty of the Director of Revenue to refund said illegal exactions and of the General Assembly to appropriate funds therefor but the performance of said duties is conditioned upon a final judgment of court and a demand for refund would be futile because of said Sec. 11441 and certain other specified statutes; that specified amounts were illegally exacted from each of the named plaintiffs, in each instance less than $50, and that there are many other persons similarly situated.

The prayer of Count I seeks a judgment and decree that the State of Missouri and the defendant officials and banking depository are liable for the refund of said illegal use taxes, a judgment and decree determining the amounts due as such refunds, determining a reasonable attorneys' fee to be paid out of the total amount of said refunds to plaintiffs' attorneys, determining the amount of such fee and declaring the same a lien upon said refunds, declaring the amounts due a trust fund and directing its payment into the registry of the court for distribution, or, if not entitled to such relief, then in the alternative directing the State Comptroller to preapprove said refunds and issue his warrant therefor, and the State Auditor, State Director of Revenue, and State Treasurer to pay and distribute said refunds and attorneys' fee, and for general relief.

Counts II, III, IV, V and VI contain the same basic allegations with only such modifications as are required to present plaintiffs' various alternative theories with respect to the parties noted above.

I. Defendants contend the circuit court did not have jurisdiction because the sum demanded did not exceed $50 for any plaintiff. Sec. 2100, R.S.1939, Section 478.070 RSMo 1949, V.A.M.S. Our Constitution of 1945, V.A.M.S., so far as material, vested the judicial power of the State in the circuit courts and magistrate courts, art. V, Sec. 1, displacing the existing justice of the peace courts, see Ch. 11, R.S.1939, by the magistrate courts. Under Laws 1945, p. 1079, S.B. 281, 'the word 'justice' [referring to justice of the peace] or the words 'justice of the peace" occurring in our statutes were made 'to include and refer to 'magistrate,' * * *.' Magistrates were vested with specified jurisdiction; but they had no 'jurisdiction to hear or try any action involving the construction of the constitution of the United States or of this state,' or 'the construction of revenue laws of this state.' Laws 1945, p. 770, Sec. 9, now Sec. 482.100, RSMo 1949, V.A.M.S. With the foregoing statutory changes the circuit courts had 'Exclusive original jurisdiction in all civil cases which shall not be cognizable before * * * magistrate courts * * *.' Sec. 2100(2) supra, now Sec. 478.070, RSMo 1949, V.A.M.S. The circuit court had jurisdiction of this action involving Federal and State constitutional provisions and seeking to affect the revenue of the state. Other reasons may exist for the jurisdiction of the circuit court.

II. Plaintiffs say the doctrine of sovereign immunity is archaic and should be discarded in suits for money judgments. They direct our attention to Chisholm v. Georgia, 1793, 2 Dall. (U.S.) 419, 1 L.Ed. 440, holding that the State of Georgia could be sued in the federal courts, and the subsequent ratification in 1798 of the Eleventh Amendment to the Constitution of the United States restricting the jurisdiction of federal courts over suits against a state. They quote observations in opinions evidencing a greater liberality on the part of legislative bodies in surrendering the sovereign's immunity to suit, ¹ and also refer to articles on the subject. ²

State ex rel. S. S. Kresge Co. v. Howard, 357 Mo. 302, 208 S.W.2d 247, is stressed by plaintiffs on...