Russell v. Croy

• Decision Date: 18 June 1901
• Parties: RUSSELL et al., Appellants, v. CROY et al. HOLMES et al., Appellants, v. CROY et al
• Court: Missouri Supreme Court

63 S.W. 849

164 Mo. 69

RUSSELL et al., Appellants, v. CROY et al. HOLMES et al., Appellants, v. CROY et al

Supreme Court of Missouri

June 18, 1901

Appeal from Buchanan Circuit Court. -- Hon. W. K. James, Judge.

Reversed and remanded (with directions).

B. R Vineyard for appellants.

(1) All requirements imposed by a Constitution for its amendment are mandatory and must be strictly complied with before any amendment can become a part thereof. Governor v Frierson, 24 Ala. 109; Hunt v. State, 22 Tex.App. 400; State v. Tucker, 15 Mont. 8; State v. Davis, 20 Nevada, 220; Livermore v. Waite, 102 Cal. 113; Durfee v. Harper, 22 Mont. 354; Judciary Amendments, 77 Miss. 566; Reply of Supreme Court, 14 R. I. 649; State ex rel. v. Secretary, 43 La. Ann 651; Reply to Legislature, 6 Cush. 573; Russie v Brazzell, 128 Mo. 107; Edwards v. Lesueur, 132 Mo. 433. (2) The requirement of the State Constitution (art 15, sec. 2), and our statute (sec. 7119), providing for the publication of all constitutional amendments, "for four consecutive weeks" before the general election next ensuing after their passage, means that they shall be published for four full weeks of twenty-eight days before such election. Boyd v. McFarlin, 58 Ga. 208; Mitchell v. Woodson, 37 Miss. 573; Bacon v. Kennedy, 56 Mich. 329; Bank v. Bank, 89 N.Y. 397; Broad v. Heyman, 3 Abbott (N. S.) 396; Richardson v. Bates, 23 How. Pr. 516; Hill v. Faison, 27 Tex. 428; Early v. Doe, 16 How. (U.S.) 610; Dillard v. Krise, 10 S.E. 430; Martin v. Barbour, 34 F. 701; Pennell v. Monroe, 30 Ark. 661; Parsons v. Lanning, 27 N.J.Eq. 70; Francis v. Norris, 2 Miles (Pa.) 150; In re North Whitehall Township, 47 Pa. St. 156; Hernandez v. His Creditors, 57 Cal. 333; Smith v. Rowles, 85 Ind. 264; Meredith v. Chancy, 59 Ind. 466; Robinson v. Richardson, 4 J. J. Marshall, 574; Loughridge v. City of H., 56 Ind. 253; Collins v. Smith, 57 Wis. 284; Eaton v. Lyman, 33 Wis. 34; Gibson v. Roll, 30 Ill. 172; Davis v. Robinson, 70 Tex. 394; Finlayson v. Peterson, 67 N.W. 953; Wilson v. Ins. Co., 65 F. 38; Pratt v. Tinckom, 21 Minn. 142; Munday v. Leeper, 120 Mo. 418; Young v. Downey, 145 Mo. 250; Young v. Downey, 150 Mo. 337; State ex rel. v. Tucker, 32 Mo.App. 628; Leonard v. Saline Co. Ct., 32 Mo.App. 633; Bean v. Barton Co. Ct., 33 Mo.App. 635; State v. Kaufman, 45 Mo.App. 656; Miner v. Tilley, 54 Mo.App. 627; State v. Kampman, 75 Mo.App. 188. (3) The form of the ballot used in voting on the third amendment was so defective and contradictory of the amendment as to make the vote cast thereon void. The prohibition of the statute prevented it from being counted on the proposition thereby submitted. R. S. 1899, sec. 7122. Like the requirements of the statute in regard to notice by publication to non-resident defendants, the ballot should have given the voters correct and full information of "the character or nature" of the amendment. As to fullness and correctness of information required in publication notices, see Winningham v. Trueblood, 149 Mo. 584; Turner v. Gregory, 151 Mo. 103; Gamasche v. Smythe, 60 Mo.App. 163. (4) In all cases where constructive or substituted service or notice is required, in lieu of that which is personal, there must be a strict compliance with statutory provisions and conditions. Charles v. Morrow, 99 Mo. 646; Quigley v. Bank, 80 Mo. 289; Wilson v. Railroad, 108 Mo. 596; Adams v. Cowles, 95 Mo. 506; Young v. Downey, 150 Mo. 326; Wade on Notice, sec. 1030; Railway v. Hoereth, 144 Mo. 136. (5) Notwithstanding the canvass of the votes on the third constitutional amendment, and the proclamation of the Governor as to its adoption, the courts have the right and power to ascertain by judicial inquiry, as to whether it has in fact been adopted as a part of the Constitution of the State. Collier v. Frierson, 24 Ala. 100; Trustees v. McIver, 72 N.C. 76; Westinghausen v. People, 44 Mich. 265; Koehler v. Hill, 60 Iowa 543; Oakland Paving Co. v. Hilton, 69 Cal. 479; Livermore v. Waite, 102 Cal. 113; Bott v. Secretary of State, 63 N. J. L. 289; Judiciary Amendments, 77 Miss. 565; State v. McBride, 4 Mo. 303; Edwards v. Lesueur, 132 Mo. 433. (6) A State may, for the purpose of taxation, separate property into different classes, and either levy different rates upon the different classes or tax certain classes and exempt others. By so doing the State does not deny to persons within its jurisdiction the equal protection of the laws guaranteed by the fourteenth amendment to the Constitution of the United States. Railroad v. Pennsylvania, 134 U.S. 232; American Refining Co. v. Louisiana, 179 U.S. 89. (7) But the separation of property into different classes for the purpose of taxation must be by a classification that rests upon some difference, which bears a reasonable and just relation to the use or situation of the property in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis. A classification which distributes property in one class or the other only accordingly as it is owned by one kind of person or another is not proper, and if upon any such basis a classification for taxation is made, and one class taxed higher than another, or one class taxed and another exempted then the law under which the classification is made does not afford the equal protection of the laws to the persons in the class taxed at a higher rate or not exempted. Railroad v. Ellis, 165 U.S. 150; State v. Loomis, 115 Mo. 307; Pollock v. Farmer Loan Co., 157 U.S. 451; Neal v. Delaware, 103 U.S. 370; Railroad v. Taylor, 86 F. 186; State ex rel. v. Ashbrook, 154 Mo. 375; Williamson v. Liverpool, 105 F. 31; In re Flukes, 157 Mo. 125; Paddock v. Railroad, 155 Mo. 524. (8) The third constitutional amendment divides mortgages into two classes for taxation, not by any difference which bears a reasonable and just relation to their use or situation, but distributes them into one class or other, merely accordingly as the equity of redemption in the land is vested in one kind of person or an other, and upon so creating the classes it discriminates between the classes by taxing all members of one class and exempting from any taxation some members of the other. It provides: First. That a mortgage upon land owned by an individual is to be considered as an interest in such land, and taxable as land held by the owner of the mortgage, even though the mortgage was originally made by a railroad or other quasi-public corporation from whom the present individual owner acquired the land. Second. That a mortgage upon land owned by a railroad or other quasi-public corporation is not to be considered as an interest in such land, and is not taxable as land held by the owner of the mortgage, even though the mortgage was originally made by an individual from whom the railroad or other quasi-public corporation afterward acquired the land. Third. The status for taxation of a mortgage as personal property or as an interest in land shifts from time to time, accordingly as the equity of redemption is owned by an individual or by a railroad or other quasi-public corporation. Fourth. After the law for the purpose of taxation divides mortgages into two classes, namely, (a) mortgages upon land in which the equity of redemption is owned by individuals and (b) mortgages upon land in which the equity of redemption is owned by railroad companies or other quasi-public corporations, it then, even though the equity of redemption in both classes are held, owned and used for exactly the same purpose, taxes all members of the first class and exempts from taxation a number of persons of the second class. It does this as follows: 1st. Mortgages upon land where the equity of redemption is owned by individuals are declared to be interests in the land, and as such are to be charged with their just proportion of the general taxes, while mortgages upon land where the equity of redemption is owned by railroad companies or other quasi-public corporations are, if taxable at all, left as personal property. This is done even though the individual owner or the corporation alike hold the land for a similar purpose. 2nd. Mortgages upon land where the equity of redemption is owned by individuals are all declared to be interests in land and taxable as such, no matter whether held by residents or non-residents of this State, while mortgages upon land where the equity of redemption is owned by railroad companies or other quasi-public corporations remain personal property, and as such are, if held within the State by residents of this State, taxed as personal property, but if held outside the State by non-residents of this State are not taxed at all. This is done even though residents and non-residents are alike within the jurisdiction of the State for the purpose of levying a tax upon the mortgage as an interest in real estate. So construed, the amendment to the State Constitution does not afford to holders of mortgages upon land, in which the equity of redemption is owned by individuals, the equal protection of the laws guaranteed by the fourteenth amendment of the Constitution of the United States. Santa Clara County v. Railroad, 18 F. 385; Railroad v. Walker, 47 F. 681; Railroad v. Smith, 173 U.S. 684; State v. Higgins, 28 S.E. 15; Postal Tel. Cable Co. v. Railroad, 96 Va. 661; State v. Hoyt, 42 A. 973; Pollock v. Farmer's Loan & Tr., 158 U.S. 601; Copeland v. St. Joseph, 126 Mo. 417; State v. Wardell, 153 Mo. 319; Sprague v. Thompson, 118 U.S. 90. (9) What is commonly denominated practical construction by official usage in a department intrusted with the execution of a statute, can have no application in this case, because, before such construction can have any weight with the court: (a) The statute to be construed must be of doubtful...