State ex rel. Hamilton v. The Hannibal & St. Joseph Railroad Company

• Decision Date: 23 January 1893
• Parties: The State ex rel. Hamilton, Collector, v. The Hannibal & St. Joseph Railroad Company, Appellant
• Court: Missouri Supreme Court

21 S.W. 14

113 Mo. 297

The State ex rel. Hamilton, Collector, v. The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri, First Division

January 23, 1893

Appeal from Linn Circuit Court.--Hon. G. D. Burgess, Judge.

Affirmed.

J. D Strong for appellant.

(1) The court should reverse the judgment as to each of counts 1, 2 3 and 4, because the court failed to follow the ruling in State ex rel. v. Railroad, 97 Mo. 299. (2) The court erred in permitting plaintiff to introduce in evidence the so-called certified tax bill; there is no statute authorizing the proof of any fact by a "certified tax bill" in a suit like the present one. (3) The court also erred in admitting in evidence the order of the county court, dated November 5, 1887. (4) The county court, on November 5, 1887 had no power under the statute concerning the levy of taxes on railroad property to make any further levies during the year 1887. It had exhausted its power for such purposes at its session of September 5, 1887. (5) First. The court further erred in overruling the objection to the order of November 5, 1887. The record does not recite that the court had any evidence of the valuation of defendant's property for any one of the years named; second, nor state any such valuations. Third. It does not show that the county court did "ascertain" any of the taxes nor levy any taxes. It merely reiterates the rates of taxation. Revised Statutes, 1879, sec. 6879. To fix a rate is not the "ascertainment" of a tax. If so, then these taxes were ascertained years before the date of this order. (6) To fix a rate is not the "levy" of a tax, else these taxes were levied years ago. "If the county court can only exercise the power to levy a tax as it may be conferred by the law-making power, the legislature in conferring it may impose the conditions on which it may be exercised, and, when such conditions are made essential to the exercise of the power, they must be observed before the power can be lawfully exercised." State ex rel. v. Railroad, 87 Mo. 239; State ex rel. v. Shortridge, 56 Mo. 126. Revenue statutes must be strictly construed. State ex rel. v. St. Louis Co., 84 Mo. 233; Sewell v. Jones, 9 Pick. 412; Mosely v. Tift, 4 Fla. 402; Barnes v. Doe, 4 Ind. 132. A tax operates in invitum. Carondelet v. Picot, 38 Mo. 125. (7) No presumptions are indulged in behalf of proceedings under such statutes. Rubey v. Huntsman, 32 Mo. 501; Reeds v. Morton, 9 Mo. 878. (8) Their provisions are not intended to be disregarded, but are made for the protection of the citizens (Cooley on Taxation [1 Ed.] p. 200; Dwarris's Statutes, 742-749), (9) And are to be construed according to their plain meaning. Williams v. Sanger, 10 East, 66; Marquis v. Commissioners, 6 Exch. 464. (10) The court also erred in overruling defendant's objection to the order of the county court dated September 5, 1887. The statute requires that the amount of each tax be separately stated; this is for the protection of the taxpayer. The order does not state separately the amount of taxes due "for interest" and for the "sinking fund." It is impossible to distinguish between that part of the tax which might have been rightly assessed and that for which no authority is given, so that the assessment can be found valid as to part or void as to the other part. In such case the whole tax is void. Case v. Dean, 16 Mich. 32; Stetson v. Kempton, 13 Mass. 283; Libby v. Burnham, 15 Mass. 147. It is otherwise if the taxpayer can distinguish on the record the part which is legal from the part which is illegal. Mix v. People, 72 Ill. 241. In such case the taxpayer must pay the portion lawfully levied, and resist the collection of the other portion. Railroad v. Cass Co., 53 Mo. 32. (11) The court erred in overruling the demurrer of defendant to the evidence given in plaintiff's behalf, and in severally overruling the defendant's instructions numbers 1, 2, 3, 4, 5.

H. Lander and H. K. West for respondent.

(1) The first point made in the first subdivisions of appellant's brief is not well taken and the authorities cited by appellant's counsel do not apply to this case for the reasons: First. Because as the contrary is not made to appear the presumption is that all preliminary orders had been made. State ex rel. v. Railroad, 101 Mo. 136. Second. Because section 7654, Revised Statutes, 1889, is unconstitutional as to all indebtedness contracted prior to its enactment, March 8, 1879. State ex rel. v. Railroad, supra; Seibert v. Lewis, 122 U.S. 284. (2) As to all other points made in the first subdivision of appellant's brief, we submit that they are extremely technical and are all answered by the tax bill made under section 7682, Revised Statutes, 1889, and read in evidence by respondent. Revised Statutes, 1889, sec. 7682. State ex rel v. Rau, 93 Mo. 126. (3) All the remaining parts of appellant's brief are sufficiently answered by the authorities above cited. (4) Respondent asks that appellant's brief be disregarded for the reason that it wholly fails to comply with rule 18 of this court in this, that the errors assigned or alleged to have been committed by the trial court are nowhere set forth in said brief.

OPINION

Macfarlane, J.

The suit is prosecuted by the collector of Linn county to recover taxes for the years 1883, 4, 5, 6 and 7, alleged to have been levied by the county court for payment of interest upon railroad aid bonds of Jefferson township, in Linn county, and for creating a fund with which to pay the principal at their maturity. The petition contains five counts, one for the taxes of each year, and is drawn substantially after the form prescribed for such suits by what is now section 7742, Revised Statutes, 1889. In each count it is charged that the tax became delinquent January 1, 1888.

Defendant, by its answer, admitted its incorporation, pleaded charter exemption from taxation, and that, by a former judgment of the circuit court of Linn county, rendered in 1879, the county court had been restrained from levying a tax to pay either principal or interest on said bonds. In this plea defendant stated the date of the alleged indebtedness to have been August 3, 1868. The plea was stricken out, on motion of plaintiff, and defendant saved no exception thereto.

At the trial plaintiff read, over defendant's objection, a certificate of the collector of the county, setting forth the taxes for each year separately, the kind of taxes, and a description of the property taxed, with the name of the owner thereof, and declaring that "the amounts of back taxes remain delinquent in favor of the several funds for the several years" on defendant's railroad "situate in Jefferson township, Linn county, Missouri."

Plaintiff then read the several certificates of the state auditor, showing the valuation at which the property was assessed for each year.

To support the first four counts plaintiff read an order of the county court of Linn county, dated July 5, 1887, requesting the prosecuting attorney of the county to apply to the judge of the circuit court for an order directing the levy of the taxes. This order recited as a reason for the levy that said county court "undertook to, and did levy a tax, on all taxable property in the township," for said years, but stated further that it was "satisfied that said levies herein before mentioned, and each of them, was illegally and erroneously made by this court because of the failure of this court to comply with the requirements" of the statute making a levy for such taxes conditional upon an order of the circuit court or judge. In pursuance of this order the prosecuting attorney petitioned the circuit judge who, under date of July 6, 1887, made the order requiring the county court to make the levy. The petition and orders were read in evidence.

Plaintiff then read in evidence an order of the circuit judge March 23, 1887, reciting a petition of the prosecuting attorney, and directing the levy of a special tax to pay interest on said township bonded indebtedness, and to create a sinking fund for the year 1887. At the August adjourned term, 1887, of said county court and on the fifth day of September, 1887, the court levied the tax for the year 1887. On the fifth day of November 1887, the county court pursuant, as recited, to the said direction of the circuit judge made a levy of the taxes for the years 1883 to 1886 both inclusive.

Defendant read section 24 of its charter which provides that the "stock of said company shall be exempt from state and county taxes."

The court refused to declare the law as requested by defendant that "the order of the county court dated November 5, 1887, read in evidence purporting to levy taxes for the years 1883, 4, 5, 6, is unauthorized in law and void as a levy of taxes for those years," but did declare the law to be, that upon the pleadings and evidence the judgment must be for plaintiff.

Judgment was rendered for plaintiff on each count and defendant appealed.

I. The objection, urged by the defendant in the circuit court, that the township tax, sued for in this action, is really and in law a part of the county tax, and as such could not be charged against its property under the exemption therefrom contained in its charter, was settled in a recent decision of this court adversely to defendant's contention, and is not seriously insisted upon here. State ex rel. v. Railroad, 101 Mo. 136, 149, 13 S.W. 505. In this decision it was distinctly held that a township tax to pay bonds issued in aid of a railroad was not a county tax within the meaning of the exemption from county taxation contained in defendant's charter.

II. The question of most serious difficulty in the case respects the effect of the order of the county court in...