State ex rel. Pacific R.R. v. Dulle

• Decision Date: 31 July 1871
• Parties: STATE, TO USE OF PACIFIC RAILROAD, Plaintiff in Error, v. G. H. DULLE et al., Defendants in Error.
• Court: Missouri Supreme Court

48 Mo. 282

STATE, TO USE OF PACIFIC RAILROAD, Plaintiff in Error,

v.G. H. DULLE et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1871.

Error to Cole Circuit Court.

Ewing & Smith, with J. N. Litton, for plaintiff in error.

I. The county tax should be levied against the shareholders of the corporation. (St. Louis Building & Savings Ass'n v. Lightner, 42 Mo. 421; Anderson v. Blattau et al., 43 Mo. 42; First Nat. Bank of Hannibal v. Meredith, 44 Mo. 500; 2 Wall., U. S., 200.)

II. The petition shows on its face that the taxes levied by the county were not against the shares or shareholders, and hence the assessment on its face is void.

III. The collector, Dulle, was bound to know that this tax was unauthorized and illegal; that the assessor and County Court had no jurisdiction or power conferred by law to assess the roadbed, depot, and other effects of this corporation, instead of the shares therein. The assessment was illegal. It was apparent on the face of the tax book, and hence he collected the tax at his peril. He was not only liable, but his sureties on his bond for enforcing the collection of this illegal tax were also liable. (State, to use of Hann. & St. Jo. R.R., v. Shacklett et al., 37 Mo. 280; State v. Moore, 19 Mo. 372; 6 Barr, Penn., 460; 1 Conn. 40; 11 Conn. 95; 5 Wend. 276; 8 Pick. 133.)

IV. Even if the assessment is held not to be void on its face, the notice to the collector and payment of the amount of illegal tax under protest, as alleged in the petition, is sufficient to make him a trespasser if he attempts to collect such tax by seizure and sale of the effects of the corporation. (Elliot v. Swartwout, 10 Pet. 150; State, to use of Hann. & St. Jo. R.R., v. Shacklett, supra.)

V. The company was not subject to tax from the county. After a certain time and event the corporation was, by the terms of the grant from and contract with the State, to be taxed in a manner specifically pointed out therein. (Sess. Acts 1853, §§ 11 12.) This grant and contract were in lieu of the exemption pro vided for in the act of 1851 (Sess. Acts 1851-2, p. 271, § 6), and authorized no county tax whatever.

E. S. King & Bro., with E. L. Edwards & Sons, for defendants in error.

Under the general revenue law of the State “all property,” with certain exceptions, is subject to taxation. (Wagn. Stat. 1159, § 1.) That of the Pacific Railroad is not an exception. (Wagn. Stat. 1159, §§ 2-9.) County Courts are authorized to levy taxes for county purposes upon all property taxable for State purposes. (Wagn. Stat. 1196, § 76.)

There is no law, special or general, exempting the property of the Pacific Railroad from the payment of taxes. (R.R. Laws of Mo. 67.) And there being no special way pointed out by any special law for making the levy and collection of the county taxes, it necessarily follows that the tax must be assessed and collected under the general revenue law of the State.

The property of the road, and not the capital stock, ought to be subject to taxation.

WAGNER, Judge, delivered the opinion of the court.

This was an action against the defendant Dulle, who was collector of revenue in Cole county, and the sureties on his official bond, for levying upon and seizing certain property of the plaintiff for unpaid county taxes and coercing the payment thereof. The property consisted of certain lots belonging to the plaintiff, in the county of Cole, and were duly assessed by the assessor, and the lists returned and placed in the hands of the defendant for collection. No irregularities are perceived on the face of the proceedings. The petition is based on the fact that the assessment for county purposes was wholly illegal, and furnished no justification for the action of the collector.

A demurrer was sustained to the petition, and the only question is whether the defendant can be held liable for his act in enforcing collection.

The plaintiff claims exemption from county assessment and taxation by virtue of its charter and the amendments thereto. By the sixth section of the amendments to the plaintiff's charter, approved March 1, 1851, it is provided that “the capital stock, together with all machines, wagons, cars, engines and carriages belonging to the company, together with all their works and other property, and all profits which shall arise from the same, shall be vested in the respective shareholders of the company forever, in proportion to their respective shares, and the same shall be deemed personal estate, and shall be exempt from any public charge or tax whatsoever for the period of five years from the passage of this act.” (Sess. Acts 1851, p. 271, § 6.)

By an act entitled “An act to accept a grant of land made to the State of Missouri by the Congress of the United States, to aid in the construction of certain railroads in this State, and to apply a portion thereof to the Pacific Railroad,” it was enacted that “the said Pacific Railroad and the said Southwestern Branch Railroad shall be exempt from taxation respectively, until the same shall be completed, opened and in operation, and shall declare a dividend; when the road-bed, buildings, machinery, engines, cars, and other property of such completed road, at the actual cash value thereof, shall be subject to taxation at the rate assessed by the State on other real and personal property of like value.”

The section further provides for ascertaining the value of the property, and makes it the duty of the president of the company, on the first day of February of each year, after the road is completed, opened and put in operation, and pays a dividend, to furnish the auditor a statement of the amount under oath, and from the statement it is made the duty of the auditor to charge the company with the taxes appearing to be due the State; and it is further provided “that if the said company shall fail for the period of two years after said roads respectively shall be completed and put in operation, to declare a dividend, then said company shall no longer be exempt from the payment of said tax,” etc. (Sess. Acts 1853, p. 13, § 12.)

It will be thus seen that section 6 of the act of 1851 exempts all the property of the corporation for the period of five years from the passage thereof. Section 12 of the act of 1852 extends the exemption until the road shall be completed, opened and put in operation, and declare a dividend, provided the dividend shall be declared within two years after the completion of the same; and if no such dividend is declared, then the exemption is to cease. The section makes provision for the ascertainment and payment of State taxes, but does not include county taxes.

Under a very similar provision in the amendatory charter of the Hannibal & St. Joseph Railroad, this court decided that the road-bed, machinery and depots of the Hannibal & St. Joseph Railroad, and the other property used by said company in operating its road, were to be considered as part of and represented by the capital stock of said company, and not liable to taxation under that provision of the general revenue law (R. C. 1855, p. 1322) subjecting to taxation “all property owned by incorporated companies over and above their capital stock.” (Hann. & St. Jo. R.R. Co. v. Shacklett, 30 Mo. 550.)

But it is to be observed that the original charter of the Hannibal & St. Joseph Railroad exempted the stock of the road from the payment of all taxes, both State and county.

The present constitution of this State, adopted in 1865, declares that no property, real or personal, shall be exempt from taxation, except such as may be used exclusively for public schools, and such as may belong to the United States, to this State, to...