St. Vincent's College v. Schaefer
| Decision Date | 11 May 1891 |
| Parties | The President and Faculty of St. Vincent's College, Appellant, v. Schaefer, Collector |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court. -- Hon. H. C. O'Bryan Judge.
Reversed and remanded.
John H Nicholson for appellant.
(1) The special act of 1853 (Session Acts, 1853, p. 569) exempting appellant's property from taxation, and the acceptance of said act, and the compliance with its terms and conditions by appellant, as fully set forth in appellant's petition constitute a contract with the state of Missouri, within the meaning of section 10, article 1, of the constitution of the United States. Therefore, the state of Missouri had no power to repeal, either expressly or by implication, said special act of exemption. Cooley's Const. Lim. [3 Ed.] star pages 280, 281; Bank v. Kansas City, 73 Mo. 555. It is not necessary tat there should be a benefit or advantage to the promisor; inconvenience, trouble, expense to the promisee will make the consideration valuable. Block v. Elliott, 1 Mo. 275; Halsa v. Halsa, 8 Mo. 303; Mullanphy v. Reilly, 8 Mo. 675; Hudson v. Busby, 48 Mo. 35. (2) The special act of 1853, exempting appellant's property from taxation, was not impliedly repealed, as held by the court below, either by the constitution of 1865 or that of 1875, or by the general laws on taxation of either of those two years. First. The court in State ex rel. v. Hays, 52 Mo. 578, page 580, says: "That the rule is well settled that statutes are not to be construed as having a retrospective effect, unless the intention of the legislature is clearly expressed that they should so operate, and unless the language employed admits of no other construction." To the same effect see Railroad v. Cass Co., 53 Mo. 17, p. 28; Smith v. Clark Co., 54 Mo. 58; St. Louis v. Ins. Co., 47 Mo. 146. Second. It is fair to presume that if the legislature intends to repeal a statute, they will do so in express terms, or by the use of words which are equivalent to an express repeal. State ex rel. v. Macon Co., 41 Mo. 453, 459. Third. The same canons of construction apply to constitutions as to statutes in the matter of repeals. State ex rel. v. Macon Co., 41 Mo. 453. Cooley on Const. Lim. [3 Ed.] star page 62. Fourth. The constitution of 1865, section 16, article 11, was designed to be prospective and not retrospective in its operation, and it did not operate to disturb existing exemptions from taxations, made by the legislature. Scotland Co. v. Railroad, 65 Mo. 123; State ex rel. v. Cem. Ass'n, 11 Mo.App. 570; State ex rel. v. Macon Co., 41 Mo. 453; State ex rel. v. Court, 51 Mo. 522; State v. Grant, 79 Mo. 113; State ex rel. v. Greer, 78 Mo. 188 State ex rel. v. Schooley, 84 Mo. 447. Fifth. Assumpsit for money had and received is an appropriate remedy to recover back money illegally exacted by the collector as taxes in all jurisdictions where no other remedy is given, unless the tax was voluntarily paid, or some statutory conditions are annexed to the exercise of the right to sue which were unknown at common law. Cox v. Collector, 6 Meyer's Fed. Dec., sec. 1431. Sixth. The petition of appellant shows that the taxes sought to be recovered back were paid to defendant under protest only when the collector had levied on the property of appellant for said tax, and it was to release said levy and prevent the threatened sale of said property that appellant paid said tax. Seventh. Usually preventative remedies are discountenanced as embarrassing to the just operation of the government, and a party is required to pay the tax, and seek redress in an action of assumpsit against the collector for money had and received. Trade Co. v. Collector, 6 Meyer's Fed. Dec., sec. 1435; Wolf v. Marshall, 52 Mo. 167; Maguire v. Sav. Ass'n, 62 Mo. 344; Westlake v. City, 77 Mo. 47.
Edward Robb also for appellant.
(1) Even if there was a misnomer of the corporation in the exemption act, it is unimportant. The identity of the corporation can be ascertained, and it is clearly indicated by the act. 1 Morawetz on Corporations, secs. 354, 355; Ins. Co. v. Davenport, 57 Mo. 239; Schaeffer v. Brewery Co., 4 Mo.App. 115; Haskell v. Selle, 14 Mo.App. 91. (2) The special act of exemption created an irrepealable contract between the state and appellant. Railroad v. Maguire, 20 Wall. 136; Bank v. Knoop, 16 How. 369; Home, etc., v. Rouse, 8 Wall. 430; Scotland Co. v. Railroad, 65 Mo. 123. (3) The special act of exemption was not repealed by the constitutional provisions. Repeals by implication are not favored. Railroad v. Maguire, 53 Mo. 17; Macon Co. Case, 41 Mo. 453; St. Louis v. Alexander, 23 Mo. 482; Smith v. Clark, 54 Mo. 58; St. Louis v. Ins. Co., 47 Mo. 147; State v. Greer, 78 Mo. 183; State v. Grant, 79 Mo. 113.
Wilson Cramer and J. A. Snider for respondent.
(1) There was a fatal misnomer and variance between the true legal name of the corporation, viz., "The President and Faculty of St. Vincent's College," and the designation of "St. Vincent's College," in the act of exemption. Laws, 1853, p. 569; 75 Mo. 382; 14 Mo.App. 91; 13 Mo.App. 579; 11 Mass. 138; 58 Ga. 280. (2) The property was not exempt from taxation as claimed by plaintiff. Const. 1865, art. 11, sec. 16; G. S. 1865, p. 95, sec. 2; Const. 1875, art. 10, sec. 6; Acts, 1883, p. 140. The exemption act of 1853 and the constitution of 1875 are irreconcilably inconsistent and cannot stand together, and the former is repealed by the latter. Railroad v. Cass Co., 53 Mo. 17; State v. Macon Co., 41 Mo. 453; Fountain v. Everett, 52 Mo. 57; State ex rel. v. Draper, 47 Mo. 29. (3) The alleged contract in the exemption was without consideration to support it. Hudson v. Busby, 48 Mo. 35.
This is a suit to recover $ 159.87 on account of taxes paid by the plaintiff to defendant as collector of Cape Girardeau county, the taxes having been paid under written protest. The circuit court sustained a demurrer to the petition, and from a judgment thereon plaintiff appealed.
The legislature, by the act of February 27, 1853, constituted certain persons and their associates a body corporate by the name of "The President and Faculty of St. Vincent's College." The act gives to the corporation the right to acquire real and personal property by purchase, gift or devise; provided, that the clear yearly value of the real estate shall not exceed the sum of $ 10,000. The institution is to be established in the city of Cape Girardeau, and, when so established, has conferred upon it all the rights and privileges given by an act incorporating St. Mary's College, in the county of Perry. Acts of 1842 & 3, p. 237.
The act of February 9, 1853, entitled, "An act to exempt certain property from taxation," provides:
The petition sets out these acts and it is then alleged that plaintiff was duly organized under the first act; that prior to the passage of the last act it owned certain real estate, and also certain lots in the city of Cape Girardeau; that the institution was located upon part of said lots; that plaintiff duly accepted the last-mentioned act and has complied with all of its terms and provisions; that the land and lots were assessed and taxes levied thereon for state and county purposes for the year 1886, in the sum of $ 159.87; that to pay the taxes so assessed the defendant as collector seized certain personal property of the plaintiff and was about to sell the same, when the plaintiff paid the taxes under written protest setting forth its right of exemption.
It is insisted, on the part of the plaintiff, that the provisions of the constitution of 1875, and section 6659, of the Revised Statutes, 1879 are prospective only in their operation, and are not in conflict with, and, therefore, do not repeal, the exemption contained in the above act of February 9, 1853; but for all the purposes of this case we shall assume that the present constitution and statutes are inconsistent with the exemption contained in that act, and that the exemption in favor of the plaintiff has been repealed, if the state had the power to repeal it.
The language of the act of 1853 is clear and free from ambiguity. It exempts the...
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