State ex rel. Love v. Hannibal & St. Joseph Railroad Co.
| Decision Date | 10 March 1890 |
| Citation | 13 S.W. 406,101 Mo. 120 |
| Parties | The State ex rel. Love, Collector, v. The Hannibal and St. Joseph Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Caldwell Circuit Court. -- Hon. J. M. Davis, Judge.
Reversed and remanded.
Thomas E. Turney and Strong & Mosman for appellant.
(1) Defendant's twenty-first declaration should have been given. It was incumbent on the plaintiff to prove that the special board of equalization for the year 1872 had valued equalized and adjusted the property of the defendant for the years 1867, 1868, 1869, 1870, 1871 and 1872, and that a part of it had been apportioned to Caldwell county for purposes of taxation. To make this proof, the plaintiff read from the exhibit filed with and made a part of defendant's answer certain allegations in the exhibit, and the proceedings of the special board of equalization for the year 1872, which are copied into the exhibit. The matter read in evidence was admissible as an admission of the defendant. Dowzelot v Rawlings, 58 Mo. 75. And it must all be taken together. 2 Wharton on Evidence [1 Ed.] sec. 1103; 1 Greenleaf on Evidence [10 Ed.] sec. 201. (2) Defendant's declarations of law, numbered 1, 2, 3 and 4, should have been given, and plaintiff's declarations, numbered 1, 2 and 3, refused. The capital stock of defendant was subjected to taxation for the years 1867 to 1871, inclusive. G. S. 1865, secs. 27, 28 and 29, p. 103; State v. Railroad, 77 Mo. 202-213. All of defendant's property was represented by its capital stock. Railroad v. Shacklett, 30 Mo. 550; State v. Railroad, 37 Mo. 265; State to use Railroad v. Shacklett, 37 Mo. 280. It is presumed that double taxation was not intended, and, taxation of the capital stock being shown, it devolved upon the plaintiff to show that defendant's property had, for those years, been also subjected to taxation in specie. Cooley on Taxation [1 Ed.] p. 165, and cases cited; Valle v. Ziegler, 84 Mo. 214-219. The acceptance by defendant of the act of the legislature of September 20, 1865, Session Acts, 1853, page 15, was only a surrender of its exemption from state taxes. This surrender did not affect in any way its relation to other taxes; nor was its property subjected to taxation in any other respect by the acceptance. Railroad v. Shacklett supra; State to use Railroad v. Shacklett, supra; State v. Railroad, supra; Livingston County v. Railroad, 60 Mo. 516. To give the special board of equalization jurisdiction under the act of March 10, 1871, it must be shown not only that defendant's property was subject, but that it was subjected, to taxation in specie, for the years 1867 to 1871, inclusive. Session Acts, 1871, p. 56, sec. 3; State v. Railroad, 77 Mo. 202-213; Valle v. Ziegler, 84 Mo., supra. (3) Defendant's declaration of law numbered 19 should have been given; and plaintiff's declarations, numbered 10 and 11, refused. First. The property road tax is not a new tax, originating since defendant's charter; but has been imposed since 1835, at least. R. S. 1835, p. 549, sec. 30. Since that time, and before, the county courts have been charged with the duty of opening, repairing and improving public roads, and the expense, when not provided for by a property tax, has been paid out of the county treasury, or the three-per-cent. fund, in the discretion of the county courts. R. S. 1835, p. 549, sec. 30; R. S. 1845, p. 975, sec. 54; Session Acts, 1851, p. 277, sec. 14; R. S. 1855, p. 1376, sec. 47; Cooley on Taxation [1 Ed.] 108, 109. Prior to 1865, all taxes were classed as state taxes, county taxes, town taxes, and although a property road tax was authorized almost continuously from 1835, unless road taxes are included in the class of county taxes, there was never, prior to 1864, authority anywhere in the statutes for the levy of road taxes. R. S. 1835, pp. 529, 530, 540 and 602, sec. 7; R. S. 1845, pp. 927, 928, 946 and 1050; R. S. 1855, p. 1349, sec. 1; p. 1526, sec. 7. By the act of the general assembly, approved February 15, 1864, a school tax is authorized, and the trustees of school districts are empowered to levy and collect it. Session Acts, 1863-64, p. 104, secs. 2 and 3. After this the taxes are classed in the revenue acts as state, county, town, or municipal, and school. Second. By the General Statutes of 1865, a property road tax is imposed, and the county courts for the first time are empowered to levy it by that name. G. S. 1865, p. 290, sec. 6. But only property subject to pay a state and county tax is subjected to the payment of the road tax. This continued to be the law until, by the act approved March 23, 1868, the county courts were authorized to levy a road tax by that name, but only on property subject to pay a county tax. Sess. Acts, 1868, p. 154, sec. 27. This continued to be the law during all the years for which road taxes are sued in the first six counts of plaintiff's amended petition. It is admitted that defendant's property was not and is not subject to a county tax. Third. By the act of March 10, 1871, the county courts are authorized to levy only county and school taxes. P. 57, sec. 12; p. 58, sec. 13. If the taxes sued for as road taxes are not county taxes, the county court was not authorized to levy them. If they are it was not authorized to levy them on defendant's property. Defendant's property had not only not been subjected, but it had never been subject, to county taxes. Sess. Acts, 1871, p. 56, sec. 3. The only remaining claim for road taxes, or county road taxes, is sued for in the eleventh count, being road taxes for the year 1877. The statute in force at that time authorized the county courts to levy a road tax, but the constitution of 1875 authorizes the county courts to levy only taxes for county purposes. The constitution went into effect November 30, 1875, and the provisions regulating taxation are self-enforcing. Schools v. Patten, 62 Mo. 444; Householder v. City of Kansas, 83 Mo. 488. Unless, then, the road tax was a county tax, its levy by the county court was unauthorized and void. If a county tax, it is admitted that defendant's property is exempt from its payment. (4) The court erred in rendering judgment for the township road taxes sued for in the eighth, ninth and tenth counts of the amended petition. The exemption of defendant's property from county taxes was an exemption of the property from road taxes. Authorities, supra. Changing the name of the tax, and intrusting its imposition to another body than the county courts, cannot deprive the defendant of the exemption. Cooley on Taxation [1 Ed.] p. 55, and cases cited; Bank v. City of Kansas, 73 Mo. 555-558, and cases cited.
Crosby Johnson for respondent.
(1) What credit shall be given to the whole or any part of the exhibit offered in evidence as a confession was a matter exclusively for the jury; and they were at liberty to reject what was in defendant's favor, while they gave credit to that which was against him. State v. Martin, 28 Mo 530; Green v. State, 13 Mo. 382. (2) The action of the state board in assessing the value of defendant's property was judicial and not subject to collateral attack. Ins. Co. v. Charles, 47 Mo. 462; Railroad v. Maguire, 49 Mo. 482; Burroughs on Taxation, sec. 103. Its decision would not have been void, even though it had acted arbitrarily and heard no evidence. Railroad v. State Board, 64 Mo. 294; New York v. Davenport, 92 N.Y. 604. (3) After the amendment of defendant's charter in 1852, its tangible property was made the subject of taxation for state purposes. Railroad Laws, p. 116, sec. 3. Counties were confined to the same subjects of taxation as were taxable "by law for state purposes." R. S. 1845, p. 947, sec. 1; G. S. 1865, p. 121, sec. 76. (4) All property in the state was subjected to taxation for school purposes in 1866, if it was in the power of the state to do so. Acts, 1863-64, p. 104, secs. 2-3; Const. 1865, art. 9, sec. 8; art. 11, sec. 16; G. S. 1865, p. 95, sec. 1; p. 263, sec. 21; p. 276, sec. 10. Defendant's capital stock was never subjected to taxation for any purpose. The state was authorized to tax the roadbed and tangible property of the defendant. Railroad Laws, 116, sec. 3. (5) The order assessing school taxes was valid. Caldwell County v. Railroad, 60 Mo. 521. School tax is not a county tax. Livingston County v. Railroad, 60 Mo. 516. The rate of levy was unaffected by the constitution of 1875. Const. 1875, "Schedule," sec. 2; Scotland County v. Railroad, 65 Mo. 123. (6) In exercising its control over roads, the county court is a state agent, not a county agent. Reardon v. St. Louis County, 36 Mo. 555; Swineford v. Franklin County, 73 Mo. 279. (7) A road tax is not a county tax but a new and independent tax. G. S. 1865, p. 293, sec. 26; St. Joseph v. Railroad, 39 Mo. 476. (8) If there is a reasonable doubt as to whether a road tax was comprehended within the words "county taxes," as used in the charter, the legality of the road tax must be upheld. Railroad v. Gaines, 97 U.S. 697, 708; Hodge v. Railroad, 99 U.S. 348, 355; Railroad v. Cass County, 53 Mo. 17; Bank v. Tennessee, 104 U.S. 493, 495. (9) Unless a road tax was a county tax, when defendant's charter was granted, the imposition of such a tax does not impair the obligation of a contract. Nelson v. Parish, 111 U.S. 716, 720; McCracken v. Hayward, 2 How. 612; Aycock v. Marin, 92 Am. Dec. 56, 65; Louisiana v. Mayor, 109 U.S. 285, 288; Merriam v. U.S. 107 U.S. 795; Wolf v. New Orleans, 103 U.S. 358, 367; Van Hoffman v. Quincy, 4 Wall. 535. (10) Repairing and opening roads was a burthen on townships, not the counties. R. S. 1845, p. 964, sec. 23. (11) All property, which the legislature could subject to taxation for road purposes, was subjected to such taxation in 1866. G. S. 1865, p. 293, sec. 26. The...
To continue reading
Request your trial