State ex rel. Blades v. Wabash Railroad Company

• Decision Date: 17 June 1913
• Citation: 158 S.W. 26,251 Mo. 134
• Parties: THE STATE ex rel. BLADES, Collector, v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

158 S.W. 26

251 Mo. 134

THE STATE ex rel. BLADES, Collector, v. WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

June 17, 1913

Appeal from Montgomery Circuit Court. -- Hon. James D. Barnett Judge.

Reversed and remanded (with directions).

J. L Minnis, N. S. Brown and Smith & Johnson for appellant.

(1) The alleged levy of the $ 38.94 for the use and benefit of the special road district of Montgomery county was made without authority of law. State ex rel. v. Railroad, 195 Mo 228. (2) The taxable value of railroad, telegraph and telephone properties in Montgomery county could only be fixed by the State Board of Equalization. Secs. 9338, 9339, 9340, 9359, 9363, R.S. 1899; State ex rel. v. Railroad, 82 Mo. 683. (3) The action of the county court at its May session, purporting to ascertain the value of all taxable property in the county, was premature and void. Sec. 9280, R.S. 1899; Secs. 9127, 9129 and 9135, R.S. 1899. (4) The taxable value of all property subject to taxation in Montgomery county in the year 1908 was $ 6,447,482.56, and for that reason the county court could not levy a rate in excess of forty cents on the hundred dollars. Sec. 9282, R.S. 1899; sec. 11, art. 10, Constitution of Missouri.

John V. Nebel for respondent; E. P. Rosenberger, of counsel.

(1) The $ 38.94 sued for, for the use and benefit of the special road district of Montgomery City, is not claimed under the alleged constitutional amendment of 1900 set forth in appellant's argument, and the case of State ex rel. v. Railroad, 195 Mo. 228, is not in point and has nothing to do with the case at bar. A case submitted in the appellate court must be submitted upon the same theory upon which it is tried in the lower court. (2) The respondent in this case takes a twofold position: Position number one being that, when the Constitution and section 11422 use this language, "The rates herein allowed to each county shall be ascertained by the taxable property therein according to the last assessment for State and county purposes," the words "last assessment" have reference to the assessment for the year of 1907, an assessment which was complete and final when the rate was levied at the May term as required by statute. It is mandatory upon the county court at its May term to fix the rate for county purposes. It is also mandatory upon the county clerk that on or before August first, the tax books on real and personal property in the county be delivered to the county collector, and it would be impossible for a county court, in fixing its rate for county purposes, to wait until the final returns had been made on July 31 by the State Auditor showing what increase or decrease the State Board of Equalization had made on railroad, telegraph and telephone properties. So construing these various sections in the light of reason and common sense, the Constitution and section 11422 when they use the words "the last assessment" for State and county purposes have reference to the assessment for the year previous, and, of course, it is admitted in this case, that the assessed valuation for Montgomery county for the year 1907, after including all railroad, telegraph and telephone valuation, was less than six million dollars. (3) If, however, we are incorrect in the construction that we have placed upon the meaning of the Constitution and the statute when the term "last assessment for county and State purposes" is used, then we most respectfully suggest, in view of the mandatory provisions of Sec. 11423, R.S. 1909, requiring the county court to fix the rate of levy for county purposes at its May term, that, at the time the levy was made in May, the county court had a right to presume, and fairly so, that the State Board of Equalization would not raise the valuation of railroad, telegraph and telephone companies three-fourths of a million dollars. It had a right to presume that the officers of these various corporations had not made a fraudulent return as to the valuation of their property, and that the valuation as returned, and which had been accepted by the county court at its March term, 1908, would be finally accepted by the State Board of Equalization. With the facts and figures that the county court had before it, at its May term, 1908, it was fully warranted and justified in making the levy for county purposes at fifty cents on the hundred dollar valuation as it did. Having thus rightfully made a levy of fifty cents on the hundred dollar valuation for county revenue purposes on an assessment of less than six million dollars at its May term, 1908, when court met in September, 1908, and after the collector's books had been turned over to him, and when for the first time the report of the State Auditor showing the increase of valuation on railroad, telegraph and telephone property was placed before the county court, it was then too late to make a levy of forty cents on the hundred dollar valuation, because by that time a part of the county and State taxes had already been collected; the collector's books had passed beyond the control of the county court, and certainly, the argument could not be advanced that the county court would have a right at its May term, when the valuation of the county was less than six million dollars, to levy a rate of fifty cents on the hundred dollars valuation on farm and town property and other personal property, and then when the report of the State Auditor came in at the September term showing that by adding to the assessed valuation of the county the increased valuation of railroad, telegraph and telephone companies the total valuation exceeded six million dollars, levy a tax of only forty cents on the hundred dollar valuation on railroad, telegraph and telephone companies. Certainly no railroad corporation can claim that under those circumstances it can only be compelled to pay forty cents on the hundred dollar valuation, while the general public is compelled to pay fifty cents on the hundred dollar valuation.

BROWN, P. J. Walker and Faris, JJ., concur.

OPINION

BROWN, P. J.

Action to collect railroad taxes. From a judgment for plaintiff in the circuit court of Montgomery county, defendant appeals.

In the year 1908 the county court of Montgomery county levied taxes for county purposes to the amount of fifty cents on the one hundred dollars valuation on the right of way and other taxable property of defendant in that county.

Defendant contends that under section 11, article 10, of the Constitution of Missouri the county court was only authorized to levy against defendant's property forty cents on the one hundred dollars valuation for county purposes, because the total assessed valuation of all taxable property in Montgomery county for the year 1908 exceeded six million dollars, and, that, therefore, twenty per cent of the taxes so levied for county purposes (the difference between forty and fifty cents on the one hundred dollars valuation) are illegal.

Defendant paid eighty per cent of the taxes levied against its property for county purposes in the year 1908, but refused to pay the remainder, whereupon this suit and the judgment appealed from followed.

This litigation grows out of the following admitted facts. When the county court of Montgomery county held its regular May term in 1908, the general assessment books of the county were complete and had been corrected in conformity with the action of both the county and State boards of equalization, but the State Board of Equalization had not at that time assessed, equalized and fixed the final valuation of such railroad property in the county, as it had the power to assess under section 9344, Revised Statutes 1899 (now Sec. 11559, R.S. 1909).

Said county court at its May term, 1908, ascertained from the assessment books and returns of railroad property made to its clerk under section 9340, Revised Statutes 1899 (now Sec. 11555, R.S. 1909) that the aggregate assessed valuation of all the taxable property in the county for 1908 was less than six million dollars, and levied a tax of fifty cents on the one hundred dollars valuation for county purposes on all the property in the county except the railroad rights of way, tracks, and such other railroad property as it is the special province of the State Board of Equalization to assess under sections 9339 and 9344, Revised Statutes 1899, now Secs. 11554 and 11559, Revised Statutes 1909.

The assessments and returns of the railroad company which were before the county court at its May term indicate that all the taxable property in the county was worth less than six million dollars; but on July 31, 1908, the State Board of Equalization, having raised the valuation of railroad property assessable in that county to the extent of $ 780,156.50, certified the result of its labors to the county court.

After adding said increase in the valuation of railroad property as fixed by the State Board of Equalization to the then existing assessment of other property, the aggregate valuation of all property in Montgomery county for 1908 exceeded six million dollars.

The county court met again in the month of September, 1908, and, notwithstanding the return or certificate of the State Auditor on railroad assessments, made under section 11578, Revised Statutes 1909, then showed the total assessed value of all property in that county to be in excess of six million dollars, it proceeded to levy upon defendant's property a tax of fifty cents on the one hundred dollars valuation for county purposes (the same as it had theretofore at its May term levied upon other property in the county).

The county court no doubt acted in good faith in levying upon the railroad property the same rate of taxes for county purposes which it...