Russell v. Croy

• Decision Date: 18 June 1901
• Citation: 63 S.W. 849,164 Mo. 69
• Court: Missouri Supreme Court
• Parties: RUSSELL et al. v. CROY et al. HOLMES et al. v. SAME.<SMALL><SUP>1</SUP></SMALL>

63 S.W. 849

164 Mo. 69

RUSSELL et al. v. CROY et al.

HOLMES et al. v. SAME.¹

Supreme Court of Missouri.

June 18, 1901.

TAXATION OF MORTGAGES — CONSTITUTIONAL LAW — AMENDMENT — VALIDITY — PUBLICATION — ADOPTION BY VOTE — SUFFICIENCY OF BALLOT — EQUAL PROTECTION OF THE LAWS.

1. Const. art. 15, § 2, declares that proposed constitutional amendments shall be published weekly in some newspaper, if such there be, within each county in the state, for four consecutive weeks next preceding the general election then next ensuing. Held, that publication once in each of the four consecutive weeks next preceding the week in which the election occurred complied with the statute, though the first publication was less than 28 days before the day of election.

2. The proposed amendment to Const. art. 10, § 22, voted on at the general election in November, 1900, declares that a mortgage, deed of trust, contract, or other obligation by which a debt is secured for the purposes of taxation shall be deemed and treated as an interest in the property affected thereby, except as to railroad and other quasi public corporations, for which provision has already been made by law, and thereafter provides how the value of such security shall be assessed and taxed to the owner thereof, and how a corresponding reduction in the value of property affected by such mortgage, deed of trust, etc., shall be secured to the owner thereof in its assessment and taxation, and renders null and void contracts made by debtors to pay the tax or assessment on the interest of the mortgagee, etc. Rev. St. 1899, § 7122, in prescribing the form of ballot for constitutional amendments, requires that it shall state or indicate the character or nature of the proposed amendment or amendments to be voted on, and that such statements shall be printed on the official ballot. Pursuant thereto the form of ballot in this instance had printed thereon the statement that the amendment referred to provided "that the value of property subject to mortgage, deed of trust," etc., "less the value of such security, shall be assessed to the owner of the property, and the value of the security assessed to the owner thereof; and that a contract made in violation of such provision is null and void." Held a sufficient compliance with the statute.

3. Such amendment is invalid for the reason that it does not afford "equal protection of the laws" guarantied by the fourteenth amendment to the federal constitution, the inequality consisting in the exception as to corporations made therein.

Sherwood, Robinson, and Marshall, JJ., dissenting.

In banc. Appeals from circuit court, Buchanan county; W. K. James, Judge.

Actions by Mary S. Russell and others, and by Rufus E. Holmes and others, against James B. Croy and others. From judgments for defendants in each case, plaintiffs appeal. Reversed.

These two cases come here by appeal from the circuit court of Buchanan county. The plaintiffs are holders of notes secured by mortgages on lands in that county which are owned by individuals. The defendants are the assessor and the members of the county court. The object of the suits is to prevent the defendants from enforcing against the plaintiffs the terms of the third constitutional amendment voted on and declared adopted at the general election in November, 1900. The proposed amendment was to add to article 10 of the constitution two sections, as follows:

"Sec. 22. A mortgage, deed of trust, contract or other obligation by which a debt is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby, except as to railroad and other quasi public corporations, for which provision has already been made by law; in case of debts so secured, the value of the property affected by such mortgage, deed of trust, contract or obligation, less the value of such security, shall be assessed and taxed to the owner of the property, in the manner hereinafter to be provided by law, and the value of such security shall be assessed and taxed to the owner thereof, in the county, city or other local subdivision in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security; if paid by the owner of the security, the tax so levied upon the property affected thereby, shall become a part of the debt so secured; if the owner of the property shall pay the tax so levied on such security, it shall constitute a payment thereon, and to the extent of such payment a full discharge thereof: provided, that in all such cases the interest of the owner of the security, as well as that of the owner of the property affected by such mortgage, deed of trust, contract or obligation, shall be assessed on terms equally fair and just. If the note or other obligation secured, is entitled to a credit by payment on the principal thereof, the assessable value of the owner of the security, upon the fact being made known to the assessor prior to the assessment, shall be diminished by the amount of such payment, and the assessable value of the owner of the land or other property, correspondingly increased, the interest hereof being to place those interested in any way in such land or other property, on the plane of absolute equity as to taxation.

"Sec. 23. Every contract hereafter made by which a debtor is obligated to pay any tax or assessment on money loaned, or on any mortgage, deed of trust, or other lien, shall, as to any interest specified therein and as to such tax or assessment, be null and void."

The contention of the plaintiffs is that this amendment was not legally adopted, and that it is in violation of the fourteenth amendment to the federal constitution. The judgment of the circuit court was that the amendment was legally adopted, and that it was not obnoxious to the federal constitution, and that plaintiffs' mortgage notes were subject to taxation, as therein indicated. From that judgment the plaintiffs appeal. There is no dispute as to the facts.

B. R. Vineyard, for appellants. E. C. Crow, Atty. Gen., Jas. W. Mytton, and W. B. Norris, for respondents.

VALLIANT, J. (after stating the facts).

1. Appellants' first proposition is that notice of the proposed amendment was not published for the length of time required by law. The requirement of the constitution on that point in section 2, art. 15, is: "The proposed amendments shall be published with the laws of that session, and also shall be published weekly in some newspaper if such there be, within each county in the state, for four consecutive weeks next preceding the general election then next ensuing."

The general election in 1900 occurred November 6th, which was the first Tuesday in that month. The record shows that the notice was published in every county once a week in each of the following weeks in October, viz. the weeks beginning Sunday 7th, 15th, 21st, and 28th. In 18 counties only, there was in each a publication in the week beginning Sunday, September 30th, and continuing through October. The publications in the week beginning October 7th were made as follows: In 1 county, on Monday, 8th; in 1, Tuesday, 9th; in 8 counties, Wednesday, 10th; in 54, Thursday, 11th; 43, Friday, 12th; and 8, Saturday, 13th. That was caused from the fact that the county newspapers were published weekly in those counties, respectively, on those days only. The result was that, while there was a publication in every county once a week in the four consecutive weeks next preceding the day of election, yet in a majority of the counties the first publication was less than 28 days before that day, and for that reason appellants say the requirement of the constitution on that point was not fulfilled, and the election was invalid. A decision of this point requires a construction of that clause of the constitution above quoted. To aid us in this study, we are referred to decisions of this and other courts construing statutes somewhat similar. In Young v. Downey, 150 Mo. 317, 51 S. W 751, we construed the statute which prescribes the notice to be given by an administrator of his application to the probate court for authority to sell land for the payment of debts. In that case the subject was thoroughly considered, and the previous decisions reviewed by Burgess, J., speaking for the court, and we are entirely satisfied with the conclusion therein reached, and the interpretation of the statute then under consideration. But the same words, occurring in different statutes of somewhat similar character, do not necessarily bear the same interpretation. Their meaning is influenced by the particular context, and sometimes by the object to be attained by the statute itself. Thus, in Young v. Downey, supra, wherein the words "four consecutive weeks" were shown to mean 28 days, a former decision of this court, in which it was held that the notice "was published in a weekly paper for four consecutive numbers, which makes four weeks" (Haywood v. Russell, 44 Mo. 252), was held not to be in conflict with the view then taken of the statute then under consideration, for the very obvious reason that there was difference in the context and also in the purpose of the two statutes. In Haywood v. Russell the publication was of a notice to a nonresident defendant in an attachment suit which the statute required to be for four weeks, and the last insertion to be four weeks before the return term of the court. In Young v. Downey the statute was: "Such notice shall be published for four weeks in some newspaper in the county in which the proceedings are had. Gen. St. 1866, p. 498, § 25; section 148, Rev. St. 1899. If 4 weeks, under all circumstances and in every connection, must mean 28 days, then, in the attachment suit against a nonresident defendant, the publication would have to run 28 days, and be completed 4 weeks before the commencement of the...