State ex rel. Ashby, to Use of Capital School Fund of Mississippi County v. Cairo Bridge & Terminal Co.

• Decision Date: 23 December 1936
• Docket Number: 33665,33930
• Citation: 100 S.W.2d 441,340 Mo. 190
• Parties: State of Missouri at the relation of Frank K. Ashby, Prosecuting Attorney of Mississippi County to the use of the Capital School Fund of Mississippi County, v. Cairo Bridge & Terminal Company, a Corporation, Appellant. State of Missouri at the relation of Frank K. Ashby, Prosecuting Attorney of Mississippi County to the use of the Capital School Fund of Mississippi County, Plaintiff in Error, v. Cairo Bridge & Terminal Company, a Corporation, Defendant in Error
• Court: Missouri Supreme Court

100 S.W.2d 441

340 Mo. 190

State of Missouri at the relation of Frank K. Ashby, Prosecuting Attorney of Mississippi County to the use of the Capital School Fund of Mississippi County, v. Cairo Bridge & Terminal Company, a Corporation, Appellant. State of Missouri at the relation of Frank K. Ashby, Prosecuting Attorney of Mississippi County to the use of the Capital School Fund of Mississippi County, Plaintiff in Error, v. Cairo Bridge & Terminal Company, a Corporation, Defendant in Error

Nos. 33665, 33930

Supreme Court of Missouri

December 23, 1936

Appeal from Mississippi Circuit Court; Hon. Frank Kelly Judge.

Reversed.

Joslyn & Boone and David S. Lansden for appellant.

(1) Under the provisions of Sections 10066 and 10012, Revised Statutes 1929, the bridge was not subject to assessment for taxation until the fiscal year beginning June 1, 1930 because the bridge was not completed or opened for traffic and no charge was made for crossing it prior to September 28 1929, and title to and possession of the bridge did not pass to the defendant until after August 1, 1929. No statement for tax assessment purposes was required to be filed on behalf of defendant prior to January 1, 1931. The Missouri State Tax Commission adopted this theory of the law and while its action in this respect may not be binding upon the courts, it is still entitled to great weight. Ross v. Railroad Co., 111 Mo. 18, 19 S.W. 541; Pugh v. Railroad Co., 118 Mo. 506, 24 S.W. 440; State ex rel. McAllister v. Cupples Station L. H. & P. Co., 283 Mo. 115, 223 S.W. 75; State ex rel. Barrett v. First Natl. Bank, 297 Mo. 397, 249 S.W. 619; Lefman v. Schuler, 317 Mo. 671, 296 S.W. 808; State ex rel. Union E. L. & P. Co. v. Baker, 316 Mo. 853, 293 S.W. 399; United States v. Moore, 95 U.S. 763; Smiley v. Holm, 285 U.S. 369, 76 L.Ed. 801. The words "where the charge is made for crossing the same" apply to defendant's bridge. State ex rel. Pearson v. Railroad Co., 215 Mo. 479. (2) Section 10070, Revised Statutes 1929, was originally passed prior to 1900, and imposes a penalty on the owner of a toll bridge, within the intent and meaning of Section 10066, Revised Statutes 1929, of $ 100 per day for every day of failure to render to the State Auditor, on or before the first day of January in any year, a statement of the property of such bridge company. Said Section 10070 was repealed by the acts and laws of the State of Missouri creating the State Tax Commission and the amendments thereto, and more particularly by subsection 5 of Section 9853 and subsection 6 of Section 9854 and Section 9859, Revised Statutes 1929. The act creating the State Tax Commission was intended to and did revise the whole law about the assessment of public utility property and said Section 10070 was repealed thereby. Poindexter v. Pettis County, 295 Mo. 629, 246 S.W. 38; State ex rel. Gaston v. Shields, 230 Mo. 91, 130 S.W. 298. (3) Said Section 10070, Revised Statutes 1929, is unconstitutional, null and void in that it is violative of Section 1 of the Fourteenth Amendment to the Constitution of the United States, and of Section 30, Article II of the Constitution of Missouri, and of subsection 32, Section 53 of Article IV of the Constitution of Missouri. Said section only imposes a penalty upon four kinds of utilities, one of which is a toll bridge, for failure to render a statement to the State Auditor, although Section 10066, Revised Statutes 1929, also requires three other kinds of utilities to render such statements. The classification of companies and utilities sought to be made by said Section 10070 is arbitrary and without any reasonable basis. Many cases might here be cited, but we call attention to only a few: Wadley So. Ry. Co. v. Georgia, 235 U.S. 666, 59 L.Ed. 413; Chicago & N.W. Railroad Co. v. Schneider-Fowler Co., 260 U.S. 45, 67 L.Ed. 123; State v. Julow, 129 Mo. 177; State v. Granneman, 132 Mo. 336; Springfield v. Smith, 332 Mo. 1129, 19 S.W.2d 1; State v. Miksicek, 225 Mo. 561, 125 S.W. 507; Henderson, Inc., v. Railroad Comm. of Texas, 56 F.2d 223. (4) Matters and things which are not clearly included in a penal statute cannot be brought within the operation of such a statute by construction or by implication. Many cases can be cited in support of this proposition, but we cite only a few. State v. Reid, 125 Mo. 43, 28 S.W. 172; State v. Gritzner, 134 Mo. 512, 36 S.W. 39; Tucker v. Ry. Co., 298 Mo. 51, 250 S.W. 390; United States v. Winchester & Co., 40 F.2d 472. Where a penalty is onerous, as is certainly the case here, no one can be held to have violated the provision of a penal statute unless his acts come within both the letter and the spirit of the law. State ex rel. Spriggs v. Robinson, 253 Mo. 271, 161 S.W. 1169.

Ashby & Banta for respondent.

(1) Under the provisions of Sections 10066 and 10070, Revised Statutes 1929, a statement for tax assessment purposes should have been filed on behalf of defendant prior to January 1, 1930. Where a statute is plain and unambiguous, there is no need for construction, and the courts should not search for meaning beyond said statute. State ex rel. Cons. School Dist. No. 9 v. Lee, 262 S.W. 344, 303 Mo. 641; Dahlin v. Mo. Blind Comm., 262 S.W. 420; Hannibal Trust Co. v. Elzea, 286 S.W. 371, 315 Mo. 485; State ex rel. Natl. Life Ins. Co. v. Hyde, 241 S.W. 396, 292 Mo. 342; State ex rel. Cobb v. Thompson, 5 S.W.2d 57, 319 Mo. 492. (2) Section 10070, Revised Statutes 1929, was not repealed by the act creating the State Tax Commission, as repeals by implication are not favored. Nichols v. Hobbs, 197 S.W. 258, 197 S.W. 260; Wrightman v. Gideon, 247 S.W. 135, 296 Mo. 214; Maurize v. Western Coal & Min. Co., 11 S.W.2d 268; State v. Stell, 14 S.W.2d 515; McGill v. St. Joseph, 38 S.W.2d 725, 225 Mo.App. 1033; State ex rel. McDowell, Inc., v. Smith, 67 S.W.2d 50; Power Transmission Co. v. Baker, 9 S.W.2d 589, 320 Mo. 1146. (3) Section 10070, Revised Statutes 1929, is not unconstitutional. The classification of companies and utilities under Section 10070 is not arbitrary. Hamman v. Central Coal & Coke Co., 56 S.W. 1091, 156 Mo. 232; State ex inf. v. Southern, 177 S.W. 640, 265 Mo. 275; State ex inf. v. Hedrick, 241 S.W. 402, 294 Mo. 21; State ex rel. v. Hartmann, 253 S.W. 991, 299 Mo. 410. An unconstitutional amendment is no amendment, and the old law is left unaffected. State ex rel. Waterworth v. Clark, 204 S.W. 1090, 275 Mo. 95; State ex rel. Daily Record Co. v. Hartmann, 253 S.W. 991, 299 Mo. 410. (4) The statement which Section 10070 required to be made to the State Auditor was by statute changed and required to be made to the State Tax Commission, and retained the penalty for failure to make said statement. Sec. 9853, sub-sec. 5, R. S. 1929; Power Transmission Co. v. Baker, 9 S.W.2d 589, 320 Mo. 1146.

James Haw and Ashby & Banta for plaintiff in error.

(1) The circuit court erred in giving a general judgment against the Cairo Bridge & Terminal Company. As a matter of law, and under the statutes of the State of Missouri, this judgment is one that is entitled to priority over other creditors, and the court should have given a special judgment against the property of defendant. R. S. 1929, secs. 10066, 10070, 10034, 3152, 9747, 9937. (2) Courts in construing statutes try to determine the intent of the lawmaking body and then enforce that intention. Holt v. Rea, 52 S.W.2d 877, 330 Mo. 1237; State ex inf. Bloebaum v. Broeker, 11 S.W.2d 81, 222 Mo.App. 831; Decker v. Diemer, 129 S.W. 936, 229 Mo. 296.

Joslyn & Boone and David S. Lansden for defendant in error.

Plaintiff in error took no exception to the dissolution of the attachment, never requested the circuit court to enter a special judgment against defendant in error or its property, made no objection to the entry of a general judgment, and preserved no exception to the action of the court in quashing the special execution issued by the clerk of the circuit court upon the general judgment, and, therefore, cannot in this court for the first time now be permitted to say that the judgment should have been special. While the judgment entered by the circuit court is a part of the record, no error appears here on the face of the judgment such as might be corrected without the preservation of an exception. Critchfield v. Linville, 140 Mo. 191, 41 S.W. 786; Flint v. Sebastian, 317 Mo. 1344, 300 S.W. 798; State ex rel. Park Natl. Bank v. Globe Indemnity Co., 2 S.W.2d 815; Nichols v. Dodson Lead & Zinc Co., 85 Mo.App. 584; St. Louis Union Trust Co. v. Merrett, 158 Mo.App. 648, 139 S.W. 824.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Cause No. 33,930 of our docket is pending on writ of error and cause No. 33,665 is pending on appeal. In the writ of error proceedings the plaintiff in error is the respondent, and the defendant in error is the appellant in the appeal proceedings. Said writ of error and said appeal are prosecuted from the same judgment below. The cause constituted but one action below, and although the review proceedings, by the respective litigants, have been lodged here through different available methods, the cause retains its unity and should be so treated for the purpose of review. [Walsh v. Southwestern Bell Tel. Co., 331 Mo. 118, 122 (2), 52 S.W.2d 839, 840 (3, 4).] Plaintiff in error, in the writ of error proceedings contending Section 10034, Revised Statutes 1929 (Mo. Stat. Ann., p. 8044), is applicable, seeks to have the general judgment, entered in the trial court in its favor, declared a prior lien on the property of defendant in error. Our outright reversal of the judgment, obtained by plaintiff in error in the trial court obviates any necessity for a discussion of the contentions presented in the writ of error proceedings.

This suit was filed by the...