State ex rel. Hagerman v. St. Louis & East St. Louis Electric Railway Co.

• Decision Date: 09 July 1919
• Citation: 216 S.W. 763,279 Mo. 616
• Parties: THE STATE ex rel. JAMES HAGERMAN, JR., Collector of City of St. Louis, v. ST. LOUIS & EAST ST. LOUIS ELECTRIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

216 S.W. 763

279 Mo. 616

THE STATE ex rel. JAMES HAGERMAN, JR., Collector of City of St. Louis, v. ST. LOUIS & EAST ST. LOUIS ELECTRIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

July 9, 1919

Appeal from St. Louis City Circuit Court. -- Hon. Wm. Kinsey, Judge.

Affirmed.

Dawson & Garvin for appellant.

(1) The tax bill is not legal evidence in this case, because (a) not authenticated by certificates of the collector or filed with the petition as required by law. R. S. 1899, sec. 9303; State ex rel. v. Scott, 96 Mo. 75; State ex rel v. Phillips, 102 Mo. 664. (b) It is not baed on a valid assessment. State ex rel. v. Cunningham, 153 Mo 642; Cort v. City of Cameron, 19 Mo.App. 585. (2) The allegation of the petition "that defendant owned, on June 1, 1906, 346 miles of roadbed and superstructure rolling stock and 'all other property mentioned in Laws 1901 sec. 2, p. 232,'" is contrary to the facts. (3) The State Board has no authority (even where it has jurisdiction) either by name or under any disguise, as increased valuation, to add property which does not belong to defendant.' State ex rel. v. Cunningham, 153 Mo. 642; State ex rel. v. Alt., 224 Mo. 513. (4) The trial court erred in not nonsuiting plaintiff as requested by defendant. R. S. 1899, sec. 9303; State ex rel. v. Railroad, 135 Mo. 618; State ex rel. v. Cunningham, 153 Mo. 642; State ex rel. v. Bank of Cartersville, 180 Mo. 717; Union Transit Co. v. Kentucky, 199 U.S. 194, 210; Louisville, Ferry Co. v. Kentucky, 188 U.S. 385, 396; Mahan v. Meredith Bank, 160 Mo. 640; Leavell v. Blades, 237 Mo. 695; Laws 1901, p. 232; State ex rel. v. Brinkop, 238 Mo. 298; (5) The tax sought to be collected is in part double taxation and hence illegal. The same roadbed and superstructure was taxed against the St. Louis Bridge Company and said tax paid by it. Constitution art. 10, secs. 3 and 4; State ex rel. v. Railroad, 196 Mo. 524; State ex rel. v. Bridge Co., 134 Mo. 32; State ex rel. v. Railroad, 215 Mo. 479; Wright v. Cent. of C. R. C., 236 U.S. 674; State ex rel. v. Brinkop, 238 Mo. 298. (6) The attempted taxation of defendant is unjust discrimination and in violation of the Constitution and laws of Missouri. Constitution art. 1, sec. 8; City of Independence v. Gates, 110 Mo. 374; Kansas City v. Grush, 151 Mo. 134; Brookfield v. Tooney, 141 Mo. 625. The steam railroad companies using said Eads Bridge are not taxed on roadbed and superstructure or rolling stock on said bridge, or on their lease of all the properties of said St. Louis Bridge Company, specifically or under head "all other property," which is in accordance with the law of Missouri. (7) Where the State Board of Equalization has jurisdiction, its valuation and assessments must be in accordance with the statutory requirements as construed by the courts. R. S. 1899, sec. 9358; State ex rel. v. Railroad, 135 Mo. 618; State ex rel. v. Lesser, 237 Mo. 318. No personal property is taxable unless the statutes declare it to be taxable. State ex rel. v. Lesser, 237 Mo. 310; State ex rel. v. Bank of Carterville, 180 Mo. 717; Union Transit Co. v. Kentucky, 199 U.S. 194. The franchise to be a corporation is not taxable. Laws 1901, p. 232. (8) Property having its situs outside of Missouri is really, if not specifically, included contrary to law. The trial court erred in refusing to so declare the law as requested by defendant. Pac. Railroad Co. v. Cass County, 53 Mo. 17; State ex rel. v. Stephens, 146 Mo. 681; State ex rel. v. Brinkop, 238 Mo. 298; Railroad v. Penn, 198 U.S. 341. (9) Defendant owned no intrastate railroad property and did no intrastate business in Missouri, and the employment of the "unit rule" or "mileage" system of valuation and assessment in this case was illegal. Fargo v. Hart, 193 U.S. 490; Louisville Ferry Co. v. Kentucky, 188 U.S. 396; Union Transit Co. v. Kentucky, 199 U.S. 210; Union Rate Cases, 230 U.S. 352; State ex rel. v. Wiggins Ferry Co., 208 Mo. 642; Railroad v. Ark. ex rel. Norwood, 235 U.S. 350; Bacon v. Illinois, 227 U.S. 512. (10) The jurisdiction of the State Board of Equalization to assess is limited to certain kinds of steam and street railroad property, specified in R. S. 1899, section 9339 (viz., length of roadbed and superstructure in city through or in which it is located in this State, rolling stock and all other movable property) owned and used by a railroad corporation operated as such by virtue of its public franchises, and which does all or a considerable part of its railroad business wholly within the State of Missouri. R. S. 1899, sec. 9344; State ex rel. v. Merchants Bank, 160 Mo. 640; Railroad v. Cass County, 53 Mo. 17; Leavell v. Blades, 237 Mo. 695. (a) The maintenance of defendant's charter to be a railroad corporation merely does not make defendant or its property assessable or taxable by the State Board of Equalization as a railroad within the meaning of the Constitution and statutes. Laws 1901, p. 232; R. S. 1909, secs 11551, 11552; Anderson v. Morris E. and R. Co., 216 F. 83; State ex rel. v. Brinkop, 238 Mo. 298. (b) Property tangible and intangible never in Missouri is not taxable by Missouri. St. Louis v. Wiggins Ferry Co., 78 U.S. (11 Wall.) 423; Leavell v. Blades, 237 Mo. 695; State ex rel. v. Brinkop, 238 Mo. 298; State ex rel. v. Lesser, 237 Mo. 310; State ex rel. v. Wiggins Ferry Co., 208 Mo. 622; Louisville Ferry Co. v. Kentucky, 188 U.S. 396; Union Rate Cases, 230 U.S. 352. (11) The attempted taxation of defendant is a direct burden upon interstate commerce and in violation of Article 1, section 8, of the Constitution of the United States, giving Congress sole power to regulate commerce among the several states. Fargo v. Hart, 193 U.S. 490; St. Louis v. Wiggins Ferry Co., 78 U.S. (11 Wall.) 423; South Covington Ry. Co. v. Covington, 235 U.S. 537.

Thomas G. Rutledge and J. M. Lashly for respondent.

(1) The same questions involved here have been determined by this court under the same statutes, for railroad taxes levied under the classification of "all other property" in the taxation of that part of the intangible property of the Wiggins Ferry Company that was located in Missouri, and the question decided in favor of the validity of the tax in the case of State ex rel. Hammer v. Wiggins Ferry Co., 208 Mo. 622. (2) The law under which this assessment was made was passed in 1901 (Laws 1901, p. 232, now Secs. 11551-2, R. S. 1909) to give a legal basis to the assessment of the intangible property of corporations owning, operating and managing public utilities, and was undoubtedly based upon the decisions of the Federal Supreme Court holding such intangible values to be property properly taxable in a state in the proportion that the length of the road there bears to the entire system. State ex rel. Hammer v. Ferry Co., 208 Mo. 622; St. L. Ry. v. Arkansas, 235 U.S. 350. (3) The law presumes that the Board of Equalization does its duty in making the assessment and making the computations and valuation upon which it is based. The valuation will, therefore, be presumed to be correct. As to details of procedure the statute is directory merely. State ex rel Hammer v. Ferry Co., 208 Mo. 662; State ex rel. v. Tel. Co., 165 Mo. 516; State v. Lord, 118 Mo. 4; Agan v. Shannon, 103 Mo. 661; Pittsburgh Ry. v. Backus, 154 U.S. 421; State ex rel. v. Hannibal Ry., 113 Mo. 308. The mere overvaluation of this road is not a defense, as the courts will not take on themselves the functions of a revising or equalizing board. Sec. 11399, R. S. 1909; Stanley v. Albany Co., 121 U.S. 535; Western U. Tel. Co. v. Missouri, 190 U.S. 420. (4) A state may exact from a railway company a tax upon that portion of its property within its borders, and, in assessing it for the purposes of taxation, take into consideration its value as a going concern and as a part of a general system extending over several states. State ex rel. Hammer v. Ferry Co., 208 Mo. 662; St. Louis Railroad Co. v. Norwood, 235 U.S. 350; Amer. Refrig. Transit Co. v. Hall, 174 U.S. 70; Western U. Tel. Co. v. Taggart, 163 U.S. 1; Western U. Tel. Co. v. Atty.-Gen., 125 U.S. 530; Western U. Tel. Co. v. Atty.-Gen., 141 U.S. 46; Maine v. Grand Trunk Ry., 142 U.S. 217; Cleveland Ry. v. Backus, 154 U.S. 439; Henderson Bridge Co. v. Kentucky, 166 U.S. 150; L. & N. Railroad Co. v. Greene, 244 U.S. 522; A. & P. Tel. Co. v. Philadelphia, 190 U.S. 160; Glue Co. v. Oak Creek, 247 U.S. 321; Postal Tel. Co. v. Adams, 155 U.S. 688; Express Co. v. Minnesota, 223 U.S. 335; Car. Co. v. Penn, 141 U.S. 18; Wisconsin Ry. Co. v. Powers, 191 U.S. 379. To be objectionable, interference with interstate commerce must be direct and not the mere incidental effect of the requirement of the usual proportional contribution to the public maintenance.

BOND, J. Blair, P. J., and Graves, J., concur; Woodson, J., absent.

OPINION

BOND, J.

This is a suit by the Collector of the City of St. Louis for taxes for the year 1907, assessed by the State Board of Equalization against .364 of a mile of railroad, owned and operated by the defendant corporation in the City of St. Louis.

The case was submitted to the trial judge, a jury being waived, upon an agreed statement of facts. The finding and judgment of the court were rendered in favor of the plaintiff for taxes and interest in the sum of $ 8356.19, to which was added one thousand dollars attorneys' fee, allowed and taxed as costs. Defendant duly appealed.

The agreed statement of facts, or so much thereof as is pertinent, will be stated in connection with the rulings made upon the errors insisted upon in the brief and argument of appellant.

I. It is claimed that plaintiff failed to prove the case stated. The defendant procured a charter from the State of Missouri in the year 1889, as a railway company, with...