State ex rel. Morgan v. Hemenway
| Citation | 198 S.W. 825,272 Mo. 187 |
| Parties | THE STATE ex rel. JOHN B. MORGAN, Appellant, v. IDA E. HEMENWAY |
| Decision Date | 17 November 1917 |
| Court | United States State Supreme Court of Missouri |
Appeal from Howard Circuit Court. -- Hon. A. H. Waller, Judge.
Reversed and remanded (with directions).
Calfee & Westhues for appellant.
(1) Section 3 of the amendment to the charter in question exempting said land from taxation was made null and void by the Constitution of 1875, being in direct conflict with sections 6 and 7 of article 10 of said Constitution. Birch v. Plattsburg, 180 Mo. 413; Westport v Magee, 128 Mo. 152; State ex rel. v O'Brinen, 89 Mo. 631; Hislop v. Joplin, 250 Mo. 588; Hayward v. People, 145 Ill. 55; McQuillin on Municipal Corporations, secs. 291, 295. (2) All laws in conflict with the Constitution of 1875, were repealed on its adoption. Section 1 of the Schedule declared "that the provisions of all laws which are in conflict with this Constitution shall cease upon its adoption." Deal v Mississippi County, 107 Mo. 468; St. Joseph Board v. Poetten, 62 Mo. 444. (3) Though section 3 of the amendment to the charter exempting defendant's land from taxation for city purposes was repealed and made null and void by the constitutional provisions above cited, the other sections of the act extending and defining the city limits are valid and are in force, being separative from the exemption section, and a valid law. Birch v. Plattsburg, 180 Mo. 413; Hislop v. City of Joplin, 250 Mo. 588; Westport v. Magee, 128 Mo. 152; Hayward v. People, 145 Ill. 55; L. & N. Ry. Co. v. Barboursville, 105 Ky. 174; McQuillin on Municipal Corporations, 295. (4) The Legislature in extending the limits of Glasgow and exempting certain property both real and personal, in said limits from city taxes, recognized that the exemptions in said act were mere privileges and could be repealed at any time, without disturbing the extension section. The Legislature itself repealed the exemption as to personal property, by an act amending the city charter in the year 1873 (see Laws 1872-3, 236, sec. 3), thereby placing their own construction on said act to the effect that it could be amended at any time. The intention of the Legislature was that the exemption could be repealed at any time without disturbing the extension section. Hislop v. Joplin, 250 Mo. 588. (5) It is the duty of the courts to enforce the organic law and to brush aside statutes which conflict with it whether passed before or after the Constitution was adopted. Deal v. Mississippi County, 107 Mo. 468; Railroad v. Thornton, 152 Mo. 570. (6) The exemption clause in section 3 of the amendment to the charter, exempting defendant's land from city taxes, constituted a mere privilege and defendant has no right in the same, and such exemptions may be repealed at any time, by the adoption of a constitutional provision in conflict therewith. Deal v. Mississippi County, 107 Mo. 468; 5 McQuillin on Municipal Corporations, sec. 2401; Hayward v. People, 145 Ill. 55; Galloway v. Memphis, 116 Tenn. 738; Powell v. Parkersburg, 28 W.Va. 698; Probosco v. Moundsville, 11 W.Va. 501; East Saginaw Mfg. Co. v. East Saginaw, 19 Mich. 259; L. & N. Ry. Co. v. Barboursville, 105 Ky. 174. (7) Such exemptions may be repealed by implication. Powell v. Parkersburg, 28 W.Va. 698. (8) Exemptions granted by the Legislature before the Constitution of 1875, and in conflict therewith, have been held to be valid, but only when they constituted contracts in a charter granted to some corporation or school, etc., and never in a case like the one before the court now. Deal v. Mississippi County, 107 Mo. 468; Scotland County v. Railroad, 65 Mo. 123; Washington University v. Rause, 3 Wall. (U.S.) 439; Railroad v. Laclede Co., 57 Mo. 147. (9) When the city of Glasgow changed from a city of the special charter to a city of the fourth class, it abandoned the old charter, and the exemption section of the Act of 1853 is in direct conflict with the charter of the cities of the fourth class; therefore, the exemption in the old charter is no longer in force and the city has all powers prescribed in the charter for cities of the fourth class. Among the powers is the power to tax all lands within its limits. 28 Cyc. 244; Westport v. Magee, 128 Mo. 152; State ex rel. v. Young, 259 Mo. 56; Jefferson v. Edwards, 37 Mo.App. 617; Hayward v. People, 145 Ill. 55; Powell v. Parkersburg, 28 W.Va. 698; Galloway v. Memphis, 116 Tenn. 736; Secs. 9347, 9351 and 9400, R. S. 1909. Section 9400 gives the authority to levy taxes on all real estate within the city limits. (10) Every citizen of a city under a special charter enjoys his citizenship subject to such provisions whereby such city may elect to enter the general class and be subject to all the tax laws. State ex rel. v. Young, 259 Mo. 56. (11) The adoption of a new charter repeals the original charter, although there are no express words of repeal. 28 Cyc. 244; Jefferson v. Edwards, 37 Mo.App. 617; Hayward v. People, 145 Ill. 55.
James A. Collet and James H. Denny for respondent.
(1) Section 3 of the Act of 1853, exempting the land of defendant from taxation, was constitutional and valid under the Constitution of 1820 in force when this act was passed. Kansas City v. Cook, 69 Mo. 127; Lee v Thomas, 49 Mo. 112; State ex rel. v. Board of Trustees, 175 Mo. 60; St. Vincent's College v. Schaeffer, 104 Mo. 261; State ex rel. v. Cemetery Association, 11 Mo.App. 570; Scotland County v. Railroad, 65 Mo. 123. (2) The provisions of the Constitutions of 1865 and 1875, in the matter of exempting property from taxation, were intended to be prospective only in their operation, and did not affect previous exemptions. State ex rel. v. Board of Trustees, 175 Mo. 60; State ex rel. v. St. Joseph's Convent, 116 Mo. 580; State ex rel. v. William Jewell College, 234 Mo. 319; State ex rel. v. Cemetery Assn., 11 Mo.App. 570. (3) The cases cited by appellant are all cases of legislative exemptions since the Constitution of 1875, admitted to be unconstitutional, and the only question involved was whether the valid could be separated from the invalid portion of the act in relation to extension of city limits. They are entirely different from this case where the exemption was constitutional and valid under the Constitution in force when it was passed. (4) But even since the Constitution of 1875 where the exemption clause was an inseparable condition and part of the act, the whole act was held void. Copeland v. St. Joseph, 126 Mo. 429; State ex rel. v. Wardell, 153 Mo. 319. (5) Exemption from taxation was the inseparable condition on which defendant's land was annexed to the city, and if either Constitution of 1875 or the act of the city in becoming one of the fourth class did repeal or annul the condition, as claimed by appellant, then the whole act perished with it, and the land is not in the city, and in either event not liable to city taxation. Kansas City v. Cook, 69 Mo. 127; Copeland v. St. Joseph, 126 Mo. 429; State ex rel. v. Wardell, 153 Mo. 319. (6) As section 7 of article 10 of the Constitution operated prospectively only, the previous Act of 1853 remained in force until repealed by the Legislature. Section 1 of Schedule, Constitution 1875. (7) A special statute is not repealed by a general statute unless it expressly refers to same. Folk v. St. Louis, 250 Mo. 116; State ex rel. v. Macon County, 41 Mo. 453; State ex rel. v. Greer, 78 Mo. 188; State ex rel. v. Cemetery Assn., 11 Mo.App. 570. (8) The same rules of construction apply to constitutions as to statutes in matters of repeals. State ex rel. v. Greer, 78 Mo. 188; State ex rel. v. Macon County, 41 Mo. 459. This property cannot be lawfully taxed by the city until the Legislature repeals the exemption in the Act of 1853, and confers the taxing power on the city. (9) The Constitution, of its own force, confers no power to levy taxes. The provisions of the Constitution other than the restrictions on rates, require legislative aid. State ex rel. v. Van Every, 75 Mo. 530; Arnold v. Hawkins, 95 Mo. 572; Public School Board v. Patton, 62 Mo. 449. (10) "The taxing power may be exercised by the General Assembly for State purposes, and by counties and other municipal corporations, under authority granted them by the General Assembly, for county and other corporate purposes." Sec. 1, Art. 10, Constitution Mo. 1875. (11) "The General Assembly shall not impose taxes upon counties, cities, towns, or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may be general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes." Sec. 10, Art. 10, Constitution 1875. (12) The power to tax comes from the Legislature, and until it acts giving the authority to levy taxes, there is no power to levy any taxes of any kind whatever. St. Louis v. Wenneker, 145 Mo. 238; Kansas City v. Building & Loan Assn., 145 Mo. 50; Valle v. Ziegler, 84 Mo. 214; State v. Railroad, 77 Mo. 202. (13) The Legislature must provide for the taxation of property. The ways and means for the assessment of property must be provided by law. Omissions in that behalf cannot be supplied by the courts. St. Louis v. Wenneker, 145 Mo. 238. (14) Unless the Legislature exercises its legitimate functions and subjects certain property to taxation it is evident that the constitutional proviso, section 7, article 10, Constitution of 1875, cannot, because of such lack of legislation, become self-enforcive. Kansas City v. Building & Loan Assn., 145 Mo. 53. (15) The courts of this State have recognized the distinction between property expressly exempted from taxation and property not taxed because the Legislature has not conferred the taxing power. Kansas City v. Cook, 69 Mo....
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