State ex rel. Montgomery v. Nordberg

• Decision Date: 25 February 1946
• Docket Number: 39824
• Parties: State of Missouri at the Relation of George S. Montgomery, Fred W. Klaber and Walter L. Yost, Judges of the County Court of Jackson County, Missouri, v. Ben Nordberg, Clerk of the County Court of Jackson County, Missouri, and Truston W. Kirby, County Treasurer of Jackson County, Missouri, Appellants
• Court: Missouri Supreme Court

193 S.W.2d 10

354 Mo. 952

State of Missouri at the Relation of George S. Montgomery, Fred W. Klaber and Walter L. Yost, Judges of the County Court of Jackson County, Missouri, v. Ben Nordberg, Clerk of the County Court of Jackson County, Missouri, and Truston W. Kirby, County Treasurer of Jackson County, Missouri, Appellants

No. 39824

Supreme Court of Missouri

February 25, 1946

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Edwin A. Harris for appellants.

(1) The next tax revenues of Jackson County will accrue and be collected after July 1, 1946, and must be used to pay the ordinary and usual expenses incurred in conducting the necessary business of the county for its fiscal year beginning July 1, 1946. Such tax revenues cannot be used to pay tax anticipation notes of Jackson County issued in January, 1946, for the purpose of providing funds to pay the current operating expenses of the county for the period beginning January 1, 1946, and ending June 30, 1946. The lower court erred in ruling to the contrary. Sec. 23, Art IV, Constitution of 1945; Sec. 7837, R.S. 1939; State ex rel. Exchange Bank v. Allison, 155 Mo. 325, 56 S.W. 534; State ex rel. Natl. Bank v. Johnson, 162 Mo. 621, 63 S.W. 390; State ex rel. Egger v. Payne, 151 Mo. 663 52 S.W. 412; State ex rel. Furby v. Continental Zinc Co., 272 Mo. 43, 197 S.W. 112. (2) A county is an agency of the state within the meaning of the phrase "the state and all its agencies" in Section 23 of Article IV of the Constitution of Missouri. The lower court's ruling to the contrary was erroneous. Sec. 23, Art. IV, Constitution of 1945; State ex rel. St. Louis Police Commrs. v. St. Louis County Court, 34 Mo. 546; State ex rel. McWilliams v. Little River Drain. District, 269 Mo. 444, 190 S.W. 897; 14 Am. Jur., pp. 186, 188; 20 C.J.S. 754; McQuillin, Municipal Corporation (2 Ed.), Revised Vol. 1, Sec. 88, p. 252, and Sec. 136, p. 414; Tulare County v. City of Dinuba, 205 Cal. 111, 270 P. 201; Church v. Lincoln County, 100 Mont. 238, 46 P.2d 681; Bazzoli v. Larson, 40 Ohio App. 321, 178 N.E. 331; Town of Saluda v. Polk County, 207 N.C. 180, 176 S.E. 298; State v. Schinz, 194 Wis. 397, 216 N.W. 509. (3) Even if it be held that a county is not an agency of the state within the meaning of the phrase "the state and all its agencies" in Section 23 of Article IV of the Constitution of Missouri, nevertheless said Section 23 changes the fiscal year of the counties because a county is an integral part of the state and the constitutional provision changing the fiscal year of the state in itself changes the fiscal year of the counties within the state. The lower court erred in ruling otherwise. Sec. 23, Art. IV, Constitution of 1945; Sec. 1, Art. VI, Constitution of 1945; State ex rel. Exchange Bank v. Allison, 155 Mo. 325, 56 S.W. 534; Ray County, etc., v. Bently, 49 Mo. 236, 242; McClellan v. St. Louis, 170 S.W.2d 131; Clark v. Adair County, 79 Mo. 536; Kansas City v. Neal, 122 Mo. 232, 26 S.W. 695. (4) House Bill No. 721 enacted by the 63rd General Assembly purporting to establish as the fiscal year of the several counties of the state the calendar year commencing on January 1st and terminating on December 31st violates Section 23 of Article IV of the Constitution and is unconstitutional and void. The lower court erred in sustaining the validity of such statute. Sec. 23, Art. IV, Constitution of 1945.

Hilary A. Bush, County Counselor, Roy B. Thomson, Robert B. Fizzell and Stinson, Mag, Thomson, McEvers & Fizzell for respondents.

(1) For many years the fiscal year of the counties of the State has been the calendar year. Wilson v. Knox County, 132 Mo. 387, 34 S.W. 477; State ex rel. Vaughan v Appleby, 136 Mo. 408, 37 S.W. 1122; State ex rel. Exchange Bank v. Allison, 155 Mo. 325, 56 S.W. 534. (2) Heretofore property has been assessed for general taxation on June 1 in each year. Secs. 10950, 10953, 10957, 10958, 10963, 10970, R.S. 1939. (3) The statutes recently enacted by the 63rd General Assembly eliminated the assessment of June 1, 1945, provided for the assessment of property on January 1 in each year beginning January 1, 1946, and established the fiscal year of counties as the calendar year. House Bill Nos. 369, 382, 469, 721. (4) A county is not an agency of the state within the meaning of the phrase, "the state and all its agencies," in Section 23 of Article IV of the Constitution of Missouri. The word "agencies" as used in such sections means the State agencies such as the Departments of Revenue, Education, Highways, Conservation and Agriculture, provided for in Section 12 of Article IV of the Constitution, and the "boards, bureaus, commissions and other agencies of the State," referred to in said Section 12 of Article IV. The meaning of the phrase "the state and all its agencies" in Section 23 of Article IV of the Constitution will not be determined merely from an examination of the words themselves. Such meaning will be deduced from an examination and consideration of the Constitution as a whole. State v. Adkins, 284 Mo. 680, 225 S.W. 981; State ex rel. City of Carthage v. Hackmann, 287 Mo. 184, 229 S.W. 1078. (5) Other provisions of the Constitution establish that counties are not included in the phrase "the state and all its agencies" appearing in Section 23 of Article IV. Secs. 12, 13, 23 of Art. IV of the Constitution; Secs. 22-28, inclusive, Art. IV, Constitution, bearing the heading "Revenue"; Sec. 31, Art. I of the Constitution; Sec. 47, Art. III, of the Constitution; Sec. 1, Art. VI of the Constitution; Sec. 6, Art. X of the Constitution; Sec. 26(a), Art. VI of the Constitution. (7) Section 26(a) of Article VI of the Constitution relating to the incurring of debt by counties and other subdivisions of the State, was taken from Section 12 of Article X of the Constitution of 1875, as amended. Under the old Constitution it was held that the word "year" in such section meant a "calendar year." Union Trust & Savs. Bank v. City of Sedalia, 300 Mo. 399, 254 S.W. 28; Dennig v. Swift & Co., 339 Mo. 604, 98 S.W.2d 659; Clarence Special School District v. School District No. 67, 341 Mo. 178, 107 S.W.2d 5. The framers of the new Constitution are presumed to have known of these decisions construing the old Constitution when they drafted the new Constitution. State ex rel. Board of Control of St. Louis School and Museum v. St. Louis, 216 Mo. 47, 115 S.W. 534; Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657. (8) Such decisions are, therefore, applicable to Section 26(a) of Article VI of the new Constitution and, in such section, the word "year" means the "calendar year." The framers of the new Constitution never intended that counties should be on a calendar year basis for the purpose of incurring debt under Section 26(a) of Article VI and that they should come within the scope of Section 23 of Article IV establishing a fiscal year beginning July 1 for the State and its agencies. Section 3 of Article X of the new Constitution in referring both to a fiscal year and a calendar year indicates that the members of the Constitutional Convention recognized that the State and its agencies would operate on the basis of a fiscal year beginning July 1st as provided in Section 23 of Article IV, but that the counties and other subdivisions of the State, if authorized by the Legislature, might operate on a calendar year basis. In construing a constitutional provision, the intent of the framers of the document is paramount. State ex rel. Hussman Refrigerator & Supply Co. v. St. Louis, 319 Mo. 497, 5 S.W.2d 1080; State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543. (9) If there is doubt as to the meaning of a constitutional provision, extrinsic evidence may be considered. State ex rel. Donnell v. Osburn, 347 Mo. 469, 147 S.W.2d 1065; State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363; In re Oppenstein, 289 Mo. 421, 233 S.W. 440. (10) The "Address to the People" adopted by the Constitutional Convention, establishes that the Convention intended by Section 23 of Article IV of the Constitution to fix a fiscal year for the State and its departments, but did not intend to fix a fiscal year for counties. "Address to the People" of the Constitutional Convention, p. 8; Sec. 10909, R.S. 1939. (11) The cases relied upon by the appellants are not in point. State ex rel. St. Louis Police Commrs. v. St. Louis County Court, 34 Mo. 546; State ex rel. McWilliams v. Little River Drain. District, 269 Mo. 444, 190 S.W. 897. (12) Section 23 of Article IV of the Constitution establishing a fiscal year for the State does not make it mandatory that counties have the same fiscal year. The General Assembly, by House Bill No. 721, effective December 13, 1945, legally made the calendar year the fiscal year of counties. The mention of the State agencies excludes from the phrase subdivisions of the State, such as counties, cities and others, under the doctrine expressio unius est exclusio alterius. Schlafly v. Baumann, 341 Mo. 755, 108 S.W.2d 363; Keene v. Strodtman, 323 Mo. 161, 18 S.W.2d 896; State ex rel. Kansas City Power & Light Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513. (13) The established rules of construction applicable to statutes apply also to the construction of the Constitution. State ex rel. Buchanan County v. Imel, 242 Mo. 293, 301, 146 S.W. 783; State ex rel. Carthage v. Hackmann, 287 Mo. 184, 229 S.W. 1078. (14) House Bill No. 721 enacted by the 63rd General Assembly, establishing as the fiscal year of counties the calendar year, is constitutional and valid. Statutes are strongly presumed to be constitutional. State v. Ward, 328 Mo. 658, 40 S.W.2d 1074; State ex rel. Judah v. Fort, 210 Mo. 512, 109 S.W. 737; Ex parte Loving, 178 Mo. 194, 77 S.W. 508. (15...