State ex rel. Furby v. Continental Zinc Company

• Decision Date: 27 July 1917
• Citation: 197 S.W. 112,272 Mo. 43
• Parties: THE STATE ex rel. J. F. FURBY, Collector, v. CONTINENTAL ZINC COMPANY, Appellant
• Court: Missouri Supreme Court

197 S.W. 112

272 Mo. 43

THE STATE ex rel. J. F. FURBY, Collector, v. CONTINENTAL ZINC COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 27, 1917

Appeal from Jasper Circuit Court. -- Hon. David E. Blair, Judge.

Affirmed.

Spencer & Grayston for appellant.

(1) The so-called back tax bill was not sufficient as to the heads "Special" and "Sewer Fund," to constitute prima-facie evidence. R. S. 1909, sec. 11498. (2) The city of Carterville, having less than 10,000 inhabitants, was confined to a levy of fifty cents on the one hundred dollars for all purposes mentioned as indicated in the so-called back tax bill. Waterworks Co. v. Lamar, 128 Mo. 188; Constitution, art. 10, sec. 11. (3) The only provision for a city of less than 10,000 inhabitants levying a tax rate in excess of fifty cents on one hundred dollars' valuation is where the people vote for a new indebtedness. Waterworks Co. v. Lamar, 128 Mo. 188; Constitution art. 10, sec. 12; R. S. 1909, secs. 9544-9546. (4) The hydrant rental for which a "special" or additional levy was made should have been paid out of general revenues that is funds arising out of the fifty-cent levy. Water Works Co. v. Carterville, 142 Mo. 106, 153 Mo. 132. (5) Submitting a bond proposition to the people for their approval, where the bonds are to be used to pay an old debt does not authorize the city to make a levy in addition to the rate limited by section 11, article 10, Constitution, for the purpose of paying the bonds. Const., art. 10, sec. 12; R. S. 1909, sec. 9357.

Allen McReynolds and Baird & Gass for respondent.

(1) The tax bill was in proper form and sufficient. R. S. 1909, sec. 11498; Stanberry v. Jordan, 145 Mo. 381. It is not necessary to set out detailed information in the tax bill as to each classification. It is sufficient to classify each tax under some appropriate head. State ex rel. v. Burr, 143 Mo. 209. The duly certified tax bill was prima-facie evidence that the amount claimed was "just and correct." State ex rel. v. Ross, 93 Mo. 126; State ex rel. v. Maloney, 113 Mo. 370. And when the tax bill is introduced, it then devolves upon the defendant to show any omissions, insufficiencies, or defenses. State ex rel. v. Fullerton, 143 Mo. 686; State ex rel. v. Cunningham, 153 Mo. 642; State ex rel. v. Vogelsang, 183 Mo. 22. (2) The city had the right with the assent of twothirds of the legal voters to vote bonds for the purpose of paying the indebtedness represented by a judgment against it. Sec. 9355, R. S. 1909; Sec. 12, art. 10, Constitution. (3) Whenever the city was confronted by a judgment debt it had the right to arrange for the payment of that debt by a bond issue. Sec. 9355, R. S. 1909. Such arrangement was valid so long as the indebtedness did not exceed the five per cent limit and was incurred with the consent of two-thirds of the voters. Sec. 9355, R. S. 1909; Sec. 12, art. 10, Constitution. Whenever two-thirds of the voters consented to a funding of the judgment debt in such a manner, the source of that debt became immaterial. (4) Sec. 9355, R. S. 1909, is constitutional and valid. The interpretation of this section and section 12 of article 10 of the Constitution urged by appellant is not sound and is not supported by decisions. Waterworks Co. v. Lamar, 128 Mo. 188; State ex rel. v. Wabash Ry. Co., 169 Mo. 563; Evans v. McFarland, 186 Mo. 724; State ex rel. v. Thompson, 211 Mo. 64; Trust Co. v. Pagensticker, 221 Mo. 128.

ROY, C. White, C., concurs.

OPINION

ROY, C.

This is a suit for city taxes on the southeast fourth of the northwest quarter of section 21, township 28, range 32, in Carterville. There was a judgment for plaintiff, and defendant has appealed to this court, constitutional questions being involved.

In 1889 the city of Carterville, then and now a city of the fourth class and having a population over a thousand and less than ten thousand, entered into a contract with one O'Neil, by which it agreed to pay him for hydrant rentals for its supply of water, at the rate of fifty dollars a year for each hydrant. That contract was approved by a two-thirds vote at an election held for that purpose, but there was nothing in those proceedings authorizing the city to become indebted beyond its annual income for any one year or to levy a special tax to pay the hydrant rentals.

O'Neil assigned his contract and the waterworks to the Webb City & Carterville Waterworks Company, which continued to supply the city with water under the contract.

The hydrant rentals went unpaid as follows:

For last half of the year 1892

$ 1025.00

For 1893

2356.75

For first three-fourths of 1894

2025.00

$ 5,406.75

The waterworks company sued for that amount. The trial court held that the city had no power to become indebted for any year beyond its annual revenues without being so authorized by a two-thirds vote, and that the city had not been so authorized. It further held that the city, after paying the ordinary current expenses of the city government for each of those years, had no funds with which to pay the hydrant rentals. It gave judgment for defendant in that case.

On appeal to this court that judgment was reversed and the cause remanded. See Waterworks Co. v. Carterville, 142 Mo. 101, 43 S.W. 625, where all the facts including the judgment of the trial court are set out. This court, in effect, held that the city could not by the proceedings above mentioned become indebted in any year beyond its annual revenues. It further held that such annual revenues should have been applied first to the payment of the salaries of the city officers and the expenses of policing the city, and that all the balance of each year's revenues should have been applied in payment of the hydrant rentals for each year respectively.

The trial court, in accordance with that opinion, took an account and rendered judgment in favor of the plaintiff therein for $ 4908.06. On appeal that judgment was affirmed. [See 153 Mo. 128.]

Following that judgment, there was a compromise between the parties, the exact terms of which are not shown. In pursuance of that compromise bonds were issued to pay that judgment, the proposition to issue the bonds being approved by a two-thirds vote at an election held for that purpose.

The taxes herein sued for are for the years 1905 to 1909 inclusive as follows:

Total for general fund for those years

$ 351.00

Total for special fund for those years

177.00

Total for sewer fund for 1907 to 1909 inclusive

182.04

$ 710.04

as shown by the back tax bill filed with the petition and put in evidence by the plaintiff.

The taxes for the general fund were levied at the full annual rate of fifty cents on the hundred dollars' valuation.

On the trial of this case the plaintiff put in evidence the back tax bill showing the above taxes and rested. The defendant objected to the items of taxes under the heads "special" and "sewer fund." The grounds of the objection to the special taxes and sewer fund taxes was that the back tax bill did not show for what purpose said taxes were being levied and collected.

In connection with the trial the following agreements were made:

"It is agreed that the items in the column headed "Special" were levied to pay interest on and to create a sinking fund to pay the principal of bonds issued for the purpose of paying a judgment in favor of the Webb City and Carterville Water Company based upon a compromise of the indebtedness claimed to be due for hydrant rental at a yearly rate payable quarterly and which was in default before the judgment was obtained, and consequently before the bonds were issued and that the bonds were issued in an amount equal to the judgment and this is to include the item of $ 18.50 which plaintiff states was levied for the same purpose for the year 1907.

"By this agreed statement the defendant does not waive any objection to the petition or to the tax bill."

Also the following:

"In addition to the facts heretofore agreed upon, it is agreed that the judgment for hydrant rental mentioned in the first agreed statement of facts, resulted from the litigation reported in Water Works Company v Carterville, 142 Mo. 101, 43 S.W. 625, and again in 153 Mo. 128; that the hydrant rental ordinance or contract referred to in 142 Mo. was submitted to the voters of the city of Carterville for ratification, as stated in that opinion, and that the same was ratified; that in the ordinance so submitted for ratification, no provision was made for the levy of a special tax to pay the hydrant rental therein provided for; that the ballot used in said election is not procurable; that after the affirmance of the judgment in favor of said Water Company by the Supreme Court in the opinion in 153 Mo., the city held an election to vote bonds for the purpose of paying off the judgment, the exact amount of which was then determined by a compromise, the Water Company making some concessions as to the amount; that the question of issuing the bonds for the purpose of paying the judgment was submitted to the voters and the required majority voted in favor of the issuance of said bonds; that the levy of taxes was thereafter made for the purpose of paying the interest and creating a sinking fund for the payment of said bonds; that defendant concedes that in the bond election the forms of the law were complied with, its objection to the levy being that the voting of these bonds for the purpose of paying an existing judgment debt was not an increase of the indebtedness of the city such as to authorize the levying of a tax in addition to the taxes provided for general purposes in section 11, article 10, of the Missouri Constitution, or that the same was not an increase of the indebtedness of the city such as is...