State ex rel. and to Use of Benson v. Union Elec. Co. of Mo.

• Decision Date: 09 May 1949
• Docket Number: 41017
• Citation: 220 S.W.2d 1,359 Mo. 35
• Parties: State of Missouri, at the Relation and to the Use of Willis W. Benson, Collector of Revenue of St. Louis County, Missouri, (Plaintiff) Respondent, v. Union Electric Company of Missouri, a Corporation, (Defendant) Appellant
• Court: Missouri Supreme Court

220 S.W.2d 1

359 Mo. 35

State of Missouri, at the Relation and to the Use of Willis W. Benson, Collector of Revenue of St. Louis County, Missouri, (Plaintiff) Respondent, v. Union Electric Company of Missouri, a Corporation, (Defendant) Appellant

No. 41017

Supreme Court of Missouri

May 9, 1949

Appeal from Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Affirmed.

SYLLABUS

The St. Louis County Library District had power to levy a tax upon the distributable property of defendant electric company, and the tax was properly computed and levied. The judgment of the county collector for the tax and penalties is affirmed.

Robert J. Keefe, William H. Ferrell and Igoe, Carroll, Keefe & Coburn for appellant.

(1) The tax is not within the authorization of the statutes governing the taxation of the distributable property of an electric utility company. The applicable sections of the statute are: Sec. 11295, Mo. Stat. Ann. (Laws 1945, pp. 1853-4), directing that taxes on the property of electric utility companies be levied and collected in the manner provided by law for the taxation of railroad property, and Secs. 11280.1 through 11280.36, Mo. Stat. Ann. (Laws 1945, pp. 1826 et seq., secs. 2-37) prescribing the manner of taxing railroad property. (2) The section authorizing the levy of taxes on distributable property does not authorize the levy of the tax here challenged. Sec. 11280.16, Mo. Stat. Ann. (Laws 1945, p. 1831, sec. 17); State ex rel. Halferty v. Kansas City P. & L. Co., 346 Mo. 1069, 145 S.W.2d 116. (3) The section of the statute directing apportionment to designated political units of the value of distributable property furnishes no support for the tax in question, because that section does not, either specifically or by general language, include library districts among the political units to which the value of distributable property is to be apportioned by the Tax Commission. Sec. 11280.11, Mo. Stat. Ann. (Laws 1945, p. 1953, sec. 12); State ex rel. Halferty v. Kansas City P. & L. Co., 346 Mo. 1069, 145 S.W.2d 116. (4) The provision (in Sec. 11295, Mo. Stat. Ann., Laws 1945, pp. 1853-4) that the property of electric and other utility companies "shall be subject to taxation" to the same extent as the property of private persons is without effect upon any question involved in this case. Sec. 11295, Mo. Stat. Ann. (Laws 1945, pp. 1853-4); State ex rel. School District of Kansas City v. Waddill, 330 Mo. 1118, 52 S.W.2d 476. (5) The section authorizing establishment of a county library district (Sec. 14767, Mo. Stat. Ann.) provides no basis for assessment or taxation of distributable property -- either alone or by reference to Section 11280.17 (Laws 1945, p. 1832, sec. 18) relating to taxation of distributable property for school purposes. Sec. 14767, Mo. Stat. Ann.; Sec. 11280.17, Mo. Stat. Ann. (Laws 1945, p. 1832, sec. 18); State ex rel. Halferty v. Kansas City P. & L. Co., 346 Mo. 1069, 145 S.W.2d 116. (6) It is fundamental that there can be no valid assessment or tax levy except to the extent and in the manner authorized by law. State ex rel. School District of Kansas City v. Waddill, 330 Mo. 1118, 52 S.W.2d 476; Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896. (7) Statutory support for the tax in question here cannot be supplied by any reasonable construction of the statutes. To find such support it would be necessary to disregard, not merely the rule requiring strict construction of tax statutes. State ex rel. Ford Motor Co. v. Gehner, 325 Mo. 24, 27 S.W.2d 1. (8) But fundamental restrictions upon the judicial power, which is limited to "construction" and may not be invoked to supply authority which the legislature plainly has not provided. State ex rel. Phoenix Mut. Life Ins. Co. v. Harris, 343 Mo. 252, 121 S.W.2d 141; State ex rel. Cobb v. Thompson, 319 Mo. 492, 5 S.W.2d 57.

Arthur U. Simmons, Edwin Rader, Simmons & Rader, Philip A. Maxeiner and Lewis, Rice, Tucker, Allen & Chubb for respondent.

(1) The constitutional and statutory provisions pertaining to county libraries authorize the imposition of taxes on property within the Library District for County Library purposes. Art. X, Sec. 11, Mo. Constitution, 1945; Mo. R.S.A., Sec. 11047.1, Laws 1945, p. 1387; Mo. R.S.A., Secs. 14767-14776, inc. (2) The statutes relating to the taxation of appellant's distributable property are broad enough to sustain this tax. Mo. R.S.A., Sec. 11295, Laws 1945, p. 1852; Mo. R.S.A., Sec. 11280.1 et seq., Laws 1945, p. 1825 et seq. (3) Prior decisions of this court (in division and en banc), with respect to the statutes herein involved dealt with the matter of a legal assessment, as pointed out by Division Number Two in its opinion, and do not decide the present issue. State ex rel. Halferty v. Kansas City L. & P. Co., 346 Mo. 1069, 145 S.W.2d 116; State ex rel. School Dist. of Kansas City v. Waddill, 330 Mo. 1118, 52 S.W.2d 476; National Cemetery Assn. of Missouri v. Benson, 344 Mo. 784, 129 S.W.2d 842; State ex rel. Asotsky v. Regan, 317 Mo. 1216, 298 S.W. 747, 55 A.L.R. 773. (4) Legislative enactments subsequent to the Halferty case support the division's interpretation of the decision therein. Laws 1941, p. 695; Laws 1945, pp. 1825, 1952; City of St. Louis v. Williams, 235 Mo. 503, 139 S.W. 340. (5) The library tax is imposed "In like manner with other taxes in the rural school districts," and appellant's distributable property admittedly is subject to such taxes. There has been substantial compliance with the statutory provisions authorizing the imposition of a tax for school districts on the distributable property of appellant. Mo. R.S.A., Sec. 14767; Mo. R.S.A., Sec. 11280.17; First Natl. Bank of Remsen v. Hayes, 186 Iowa 892, 171 N.W. 715; Cooley on Taxation, secs. 1137, 1167; State ex rel. North & South Ry. Co. v. Meier, 143 Mo. 439, 45 S.W. 306; State ex rel. Union Electric L. & P. Co. v. Baker, 316 Mo. 853, 293 S.W. 399; State ex rel. Thompson v. Jones, 328 Mo. 267, 41 S.W.2d 393; 61 C.J., sec. 686, p. 560; Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920. (6) The procedure followed by the county court and the county clerk in the assessment and levy of the tax in question fully complied with the provisions of the Missouri statutes as hereinabove set forth. (7) There is also ample authority under Section 11280.16 to justify the imposition of the tax. State ex rel. Conrad v. Piper, 214 Mo. 439, 114 S.W. 1; State ex rel. Essex Special Road Dist. of Stoddard County v. Vincent, 198 S.W.2d 232; Garrison v. Mayor and Aldermen of Jersey City, 92 N.J.L. 624, 105 A. 460; Johnson v. Donham, 191 Ark. 192, 82 S.W.2d 374; Hughes v. State, 97 Colo. 279, 49 P.2d 1009, 101 A.L.R. 1202; Lewis v. Leon County, 107 So. 146; Jordan v. Duval County, 68 Fla. 48, 66 So. 298.

Will H. Hargus and C. E. Groh for Cass County Library District, amicus curiae.

(1) The court below did not err in holding the library tax valid as one authorized by Missouri statutes. So far as the issues of this case are concerned, the statutes involved are as follows: Sec. 14767, R.S. 1939; Sec. 11295, Mo. R.S.A., Laws 1945, p. 1853; Sec. 11280.16, Mo. R.S.A., Laws 1945, p. 1831, sec. 17; Sec. 11280.17, Mo. R.S.A., Laws 1945, p. 1832, sec. 18; Sec. 11280.11, Mo. R.S.A., Laws 1945, p. 1829, sec. 12. (2) Sections of the statutes authorizing levy of taxes on distributable property authorize levy of the library tax: Sec. 14767, R.S. 1939; Sec. 11280.16, Mo. R.S.A., Laws 1945, p. 1831, sec. 17; Sec. 11280.17, Mo. R.S.A., Laws 1945, p. 1832, sec. 18; Sec. 11295, Mo. R.S.A., Laws 1945, p. 1853; State ex rel. Hammer v. Wiggins Ferry Co., 208 Mo. 622, 106 S.W. 1005.

Bradley & Noble, John W. Noble and Lawrence L. Bradley for Dunklin County Library District, amicus curiae.

(There is ample statutory authority for the imposition, levy, assessment and collection of a county library tax on distributable property of utilities. Manner of taxing utility property. Sec. 11280.16, Mo. R.S.A. (2) Definition of phrase "and for other purposes" as used in Sec. 11280.16. Sec. 11280.24, Mo. R.S.A.; State ex rel. Halferty v. Kansas City P. & L. Co., 346 Mo. 1069, 145 S.W.2d 116. (3) Scheme provided for school taxes is legally applicable to library tax. Sec. 14767, Mo. R.S.A.; Sec. 11280.16, Mo. R.S.A.; State v. Lloyd, 7 S.W.2d 344; Gaston v. Lamkin, 115 Mo. 20, 21 S.W. 1100; State v. Williams, 237 Mo. 178, 140 S.W. 894. (4) Method in which school taxes are imposed on utility property. Sec. 10347, Mo. R.S.A.; Laws 1939, p. 698, amending Sec. 10347; Sec. 11280.17, Mo. R.S.A.; Sec. 11280.18, Mo. R.S.A. (5) Application of the school tax scheme to library tax. Sec. 14767, Mo. R.S.A.; Secs. 11280.11, 11280.17, 11280.18, Mo. R.S.A.

OPINION

Barrett, C.

This is a suit by the Collector of St. Louis County to recover a tax of $ 18,956.08 levied on the Union Electric Company's distributable property for the benefit of the St. Louis County Library District. The Library District was established and a one mill tax was levied for its support by a vote of the people in the district. Const. Mo. 1945, Art. X., Sec. 11; Mo. R.S.A., Secs. 14767-14776. The district includes all of St. Louis County except the cities of Brentwood, Clayton, Ferguson, Kirkwood, Maplewood, Richmond Heights, University City, Valley Park and Webster Groves, each of which maintains a public library supported, at least in part, by public taxation. Mo. R.S.A., Sec. 14771.

As required by law (Mo. R.S.A., Sec. 11295, 11280.1-11280.36) the Union Electric Company made a return of its distributable property (poles, wire and trench) to the State Tax Commission. The Clerk of the County Court of St. Louis County, and presumably the county clerks of all other counties in which there was distributable property owned by the appellant...