State ex rel. Karbe v. Bader

• Decision Date: 22 December 1934
• Docket Number: No. 33955.,33955.
• Citation: 78 S.W.2d 835
• Parties: STATE OF MISSOURI at the Relation of OTTO F. KARBE and HATTIE KARBE, Relators, v. ARTHUR H. BADER, Presiding Judge of Division One of the Circuit Court for the Eighth Judicial Circuit, and EDMOND KOELN, Collector of Revenue for the City of St. Louis.
• Court: Missouri Supreme Court

78 S.W.2d 835

STATE OF MISSOURI at the Relation of OTTO F. KARBE and HATTIE KARBE, Relators, v. ARTHUR H. BADER, Presiding Judge of Division One of the Circuit Court for the Eighth Judicial Circuit, and EDMOND KOELN, Collector of Revenue for the City of St. Louis.

No. 33955.

Supreme Court of Missouri.

Court en Banc, December 22, 1934.

Prohibition.

PRELIMINARY RULE MADE ABSOLUTE.

Albert E. Hausman for relators.

(1) Section 9952, found at page 465, Laws of Missouri 1933, known as House Bill No. 44, passed April 1, 1933, approved April 23, 1933, is unconstitutional. Henderson v. Koenig, 168 Mo. 356. (2) Section 9952, found at page 465, Laws of Missouri 1933, known as House Bill No. 44, is of no present force because inconsistent with Section 9952, found at page 429, Laws of Missouri 1933, known as Senate Bill No. 94. 59 C.J. 1055.

Frank H. Haskins, Albert D. Nortoni and Charles J. Dolan for respondents.

(1) Relators seem to rely upon the rule that the reenactment of a statute in the same language as before operates as a mere continuation thereof, but this rule is subject to an exception which covers precisely this case. The Act of April 7, 1933, was an intermediate act. In such circumstances the rule is stated in 59 C.J. 926 and 927 as follows: "Effect on, or of, Intermediate Act. In so far as a later law is merely a re-enactment of an earlier one, it will not repeal an intermediate act which qualified or limits the first one, but such intermediate act will be deemed to remain in force, and to qualify or modify the new act in the same manner as it did the first. The rule is subject to the exception that where the re-enacting act and the intermediate act are wholly inconsistent with each other and cannot stand together, the intermediate act will be regarded as repealed." In the Board of Education v. Taylor County Court, 77 W. Va. 523, 87 S.E. 870, the syllabi 3 and 4 by the court, dealing with a similar question, are as follows: "Syllabi 3. Where a later law is merely a reenactment of the former it will not be regarded as repealing the intermediate act, which qualified and limited it, but the intermediate act will be deemed to remain in force qualifying or modifying the new act as it did the first. "Syllabi 4. But an exception to the general rule lastly stated is that when the intermediate act and the new or re-enacted law are in irreconcilable conflict, the latter will prevail over the intermediate act, under the general rules above stated, as being the last expression of the legislative intent." (2) In both the title and enacting clause, Section 9952, Laws of Missouri 1933, the said section which contains a proviso, although incorporating the body of a prior section, is declared by the Legislature to be "a new section and to read as follows." In 59 Corpus Juris 925, section 527, it is said: "An amendatory act which provides that the original statute shall be amended `so as to read as follows,' or otherwise purports to set out in full all that the statute as amended is intended to contain, becomes a substitute for the original." 36 Cyc. 1033, anent this same matter, says: "Generally speaking, where a statute is amended `so as to read as follows,' the amendatory act becomes a substitute for the original, which then ceases to have the force and effect of an independent enactment." To this question the courts say: "It is the rule in this State, and elsewhere generally, that whenever the Legislature declares that an existing statute is to be amended to read as follows,' etc., it thereby evinces an intention to make the new act a substitute for the old one." Continental Oil Co. v. Montana Concrete Co., 207 Pac. 116, 63 Mont. 229. "(a) Logical Effect. — The effect of an act amending a specific section of a former act, in the absence of a saving clause, is to strike the former section from the law, obliterate it entirely and substitute the new section in its place. This effect is not an arbitrary rule adopted by the courts. It is the natural and logical effect of an amendment `to read as follows.' It accomplishes precisely what the words import (Peo. 1. Lowell, 230 N.W. 202, 250 Mich. 356). "(b) Repeal. — (1) An amending act which provides that a section of the previous act `shall hereafter read as follows' entirely repeals such section (State v. Andrews, 20 Tex. 230). (2) It is clear that a legislative enactment that a designated article in a code, or section of a statute, shall thereafter read in a certain way, is a command that it shall no longer read as it did formerly. The earlier reading is necessarily abrogated, expunged and superseded by the later text; in other words, the article or section, as it formerly read, is thereafter to be excluded from the code or statute and replaced by the new matter. This constitutes an express and unequivocal repeal of the whole matter thus excluded (Seeling v. Illinois Cent. Railroad Co., 8 La. App. 286, 289)." (3) It is obvious the two statutes relate to the same subject matter, i.e., the enforcement of the State's lien for delinquent taxes on real estate, and that they are wholly inconsistent and repugnant. Such being true, the statute last passed and made a completed law must and does prevail, supersede and repeal the prior in so far as the inconsistency pertains, even though it contains no repealing clause. 36 Cyc. 1073; State ex rel. Mo. Pac. Railroad Co. v. Pub. Serv. Comm., 275 Mo. 60, 204 S.W. 395; Poole v. Brown, 98 Mo. 675, 11 S.W. 743; Pacific Railroad Co. v. Cass County, 53 Mo. 17; State v. Draper, 47 Mo. 29. (a) This rule applies as well to statutes passed by the same session of the Legislature or by different sessions of the same Legislature held during the term of office or made up, as it may be, of the same membership. Gasconade County v. Borden, 241 Mo. 581; 36 Cyc. 1151; State ex rel. v. County Court, 41 Mo. 453. (b) It is laid down as a fundamental proposition "that it is competent for the Legislature at the same session, to order, modify or repeal a law by a subsequent act of the same session" (36 Cyc. 1054). This is true, too, even though the new act of the same session has not yet become a law. 36 Cyc. 1069; Mobile, etc., Railroad Co. v. State, 29 Ala. 573; Attorney-General v. Brown, 1 Wis. 513; Southwark Bank v. Commonwealth, 20 Pa. 446. (4) The proviso in the instant case is valid under the Constitution in that it includes all counties which then or thereafter might have no less than 80,000 or to exceed 95,000 inhabitants, and conforms to the Constitution. Davis v. Jasper County, 300 S.W. 493; State ex inf. v. Southern, 265 Mo. 286, 177 S.W. 643; Forgrave v. Buchanan County, 282 Mo. 599; State ex inf. Crow v. Continental Tobacco Co., 177 Mo. 1, 75 S.W. 737; State ex rel. v. Bell, 119 Mo. 70, 24 S.W. 765. (5) If the proviso be found insufficient and void, then it may be segregated entirely from the act without impairing the jurisdiction of the circuit court in any respect. State ex rel. v. Mills, 231 Mo. 499. And the prior statute is thus destroyed. State ex rel. v. Clark, 275 Mo. 95.

Roy McKittrick, Attorney General, Harry G. Waltner, Jr., and Gilbert Lamb, Assistant Attorneys General, amici curiae.

(1) Senate Bill 54 modified Senate Bill 94 in that it gave the collector discretion as to when he would sell real estate for taxes within the five-year period of limitations. Sec. 9961, R.S. 1929; Laws Ex. Sess., 1933-1934, p. 154; Message of Governor, Senate Journal, p. 165; 23 C.J. 102; 25 R.C.L. 903; State v. Adams, 19 S.W. (2d) 673; State v. Schenk, 238 Mo. 444; State v. Fulks, 247 S.W. 132. (2) Laws 1933, page 425, is the law of the State in reference to the procedure for collecting delinquent real estate taxes. Laws 1933, p. 425; Sec. 9952, R.S. 1929; Laws 1933, p. 465; 59 C.J. 1055; Senate and House Journals, 1933 regular session. (a) The proviso to House Bill 44 was a purely local law and therefore had no validity. Henderson v. Koening, 168 Mo. 371. (b) House Bill 44 does not show that any such emergency existed as to put the act into effect immediately. Sec. 9952, R.S. 1929; Laws 1933, p. 465; Senate and House Journals, regular session, 1933; State v. Sullivan, 224 S.W. 338.

Arthur U. Simmons, amicus curiae.

LEEDY, J.

Original proceeding in prohibition. Relators are defendants in a tax suit brought by the State, at the relation and to the use of respondent Koeln, Collector of the City of St. Louis, as plaintiff, in Division No. 1 of the Circuit Court of the City of St. Louis presided over by respondent Bader, as judge. The purpose of said suit is to enforce the lien of the State for taxes (with interest and penalties) for the years 1929, 1930, 1931 and 1932, against certain real property situated in said city, owned by relators. Relators' petition for the writ alleges that the lower court is without jurisdiction because the Fifty-seventh General Assembly repealed Sections 9952, 9953, 9954, 9955, 9956, 9957, 9958, 9960, 9962 and 9963 of the Revised Statutes 1929, providing for the enforcement of the lien of the State for taxes by suit, and substituted therefor a method of sale without judicial proceedings, upon notice by the collector for three consecutive weeks in some newspaper of general circulation published in the county in which the land, lots or tracts might be situated. [Laws 1933, pp. 425-449, passed March 24, approved April 7, 1933, and which will hereinafter be referred to as Senate Bill No. 94, or the Jones-Munger Act.] It is further alleged that respondent Koeln, collector, relies upon and predicates his aforesaid suit for taxes upon Section 9952, Revised Statutes 1929, enacted by the Fifty-seventh General Assembly, passed April 1, approved April 28, 1933, with an emergency clause (Laws 1933, pp. 465-467, which will hereinafter be referred to as House Bill No. 44.) The constitutionality of the act just mentioned is attempted to be raised by relators' petition.

[1] Our provisional rule in prohibition was ordered, and resp...