State ex rel. Philpott v. St. Louis-San Francisco Ry. Co.

• Decision Date: 23 December 1922
• Citation: State ex rel. Philpott v. St. Louis-San Francisco Ry. Co., 247 S.W. 182, 296 Mo. 518 (Mo. 1922)
• Parties: THE STATE ex rel. J. M. PHILPOTT, Collector of the Revenue for Webster County, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

247 S.W. 182

296 Mo. 518

THE STATE ex rel. J. M. PHILPOTT, Collector of the Revenue for Webster County, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant

Supreme Court of Missouri

December 23, 1922

Appeal from Webster Circuit Court. -- Hon. C. H. Skinker, Judge.

Affirmed.

W. F Evans, Mann & Mann, and George W. Goad for appellant.

(1) The Constitution fixes a limit on taxation, but grants no power of taxation. Mo. Constitution, sec. 1, art. 10; 37 Cyc. 715; Glasgow v. Rouse, 43 Mo. 479; American Express Co. v. St. Joseph, 66 Mo. 675; State v. Van Every, 75 Mo. 537; In re Sanford, 236 Mo. 684; State ex rel. Sedalia v. Weinrich, 236 S.W. 872. (2) The taxing power of the State is vested in the General Assembly; it is an inherent power, not granted by the Constitution, but subject to the constitutional limitations which limitations are self-enacting. Mo. Constitution, sec 1, art. 10; In re Sanford, 236 Mo. 684; State ex rel. Sedalia v. Weinrich, 236 S.W. 872. (3) The Act of 1921 (Sec. 12865) contains the only grant of authority to levy taxes for county purposes, which act by its terms specifically prohibits the levy of the tax here in controversy. State v. Weinrich, 236 S.W. 872. (4) The tax ordered levied by the circuit court is a tax for county purposes, and within the limitation fixed by said Act of 1921 (Sec. 12865). Black v. McGonigle, 103 Mo. 192, 202; Book v. Earle, 87 Mo. 246; State ex rel. v. Railroad, 169 Mo. 563; Arnold v. Hawkins, 95 Mo. 569.

J. P. Smith and C. H. Skinker, Jr., for respondent.

(1) The provisions of Article 6, Chapter 119, Revised Statutes 1919, were originally known as the "Cottey Act" and have been the law in this State for over forty years. Laws 1879, pp. 185, 193; R.S. 1879, secs. 6799, 6807; R.S. 1889, secs. 7654, 7662; R.S. 1899, secs. 9274, 9282; R.S. 1909, sec. 11417, 11422; R.S. 1919, sec. 12860, 12865. (2) During all of that time the tax levy obtained through the circuit court order has always been considered a special tax for county indebtedness, separate and apart from the tax for current county expenditures, and a strict compliance with its provisions is necessary. State ex rel. v. Railroad, 130 Mo. 248; State ex rel. v. Railroad, 169 Mo. 577; State ex rel. v. Railroad, 87 Mo. 236; State ex rel. v. Bridge Co., 134 Mo. 338; State ex rel. v. Hager, 92 Mo. 515. (3) Although Section 12866 provides for the apportionment and subdivision of the revenue for county purposes, it has no relation to the special tax for past indebtedness obtained through an order from the circuit court. State ex rel. v. Hortsman, 149 Mo. 290, 297. (4) The term "for county purposes" as used in Sections 12865, 12863 and 12866, means for current county expenditures, and has no reference to the special tax for past indebtedness obtained through an order from the circuit court under the provisions of Sections 12860. See Statutes set out supra, and State ex rel. v. Hortsman, 149 Mo. 297; McCormick v. Fitch, 14 Minn. 185, 189. (5) Current county expenditures do not mean expenditures for years other than the year for which the taxes are levied. State ex rel. v. Payne, 151 Mo. 673. (6) The court, in construing the statute, must consider the context thereof, and sections in pari materia, as well as cognate sections, and seek to arrive at the true intendment. State ex rel. Major v. Ryan, 232 Mo. 92; State ex rel. Buchanan County v. Imel, 242 Mo. 301.

OPINION

In Banc.

HIGBEE J.

This action was commenced March 30, 1922, to recover $ 1225.68, taxes levied on defendant's property in Webster County for the year 1921, pursuant to an order made by C. H. Skinker, circuit judge, June 4, 1921, in vacation, under Section 12860, Revised Statutes 1919. No question is made on the pleadings. The answer is a general denial. Judgment as prayed in the petition, May 19, 1922, for $ 1368.31, interest, attorney fee and costs.

The agreed facts are: The total assessed value in the county for 1920 was $ 7,393,494. The county court made a levy in 1920 of forty cents on the $ 100 valuation for general county purposes, which would produce $ 29,573.98 in revenue for that year. The assessed valuation for 1921 was $ 11,553,353; the levy for county purposes was thirty cents on the $ 100 valuation, which would raise $ 34,660 revenue for county purposes. Pursuant to an order of the county court, as authorized by Section 12860, Revised Statutes 1919, the prosecuting attorney presented a petition to the circuit judge in vacation, showing that the county had outstanding unpaid warrants issued from 1914 to 1920 inclusive, aggregating about $ 40,000, and praying an order to the county court requiring it to order an additional levy to pay said warrants. Acting on this petition, Judge Skinker, on June 4, 1921, made an order finding that there existed a necessity for the levy and collection of other taxes than those enumerated and specified in Section 12859, Revised Statutes 1919, to pay the outstanding warrants mentioned in the petition; that there were no funds of said county out of which they could be paid; that the facts stated in the petition and the facts as found by the county court were true and, being satisfied that it was necessary that an additional levy of ten cents upon the one-hundred-dollar assessed valuation be levied and collected in said county for the payment of said warrants and that the levy and collection of said tax would not be in conflict with the Constitution or laws of the State, therefore, it was ordered that such additional tax be levied and collected for said purpose by said county court. The thirty-cent levy made by the county court for 1921 would produce more than ten per cent (about $ 2000) in excess of the revenue levied for county purposes for 1921. The county court made the additional levy of ten cents in 1921, pursuant to the order of Judge Skinker.

The defendant, claiming that the county court could levy an amount not to exceed ten per cent in excess of the county revenue levied for the year 1920, paid what it claimed should be its taxes for the year 1921 on that basis, which was accepted with the understanding that this action might be brought "to test the question of whether the county could collect the levy of ten cents to pay the outstanding warrants, which is the only question involved in this case, and such payment of taxes by the defendant was accepted by the plaintiff without question." The tax bill was offered in evidence.

Section 12859 authorizes the levy and collection in the several counties in this State, and in the manner and not to exceed the rates prescribed by the Constitution and laws of the State, of the following taxes: the State tax, the taxes necessary to pay the funded or bonded debt of the State, and of the county, the tax for current county expenditures, and taxes certified as necessary by cities, incorporated towns and villages and for schools.

Section 12860, Revised Statutes 1919 reads: "No other tax for any purpose shall be assessed, levied or collected, except under the following limitations and conditions." The section then provides that the prosecuting attorney, on the order of the county court, may present a petition to the circuit court or judge in vacation, setting forth the necessity for the levy and collection of an additional tax founded upon such finding by the county court, and that upon a finding by such court or judge that such necessity exists and that the levy and collection of such additional tax will not be in conflict with the Constitution and laws of this State, an order shall be made commanding the county court to have assessed, levied and collected such other tax or taxes. Such order, when so granted, shall be a continuous order, etc.

Section 12861 makes it a misdemeanor for the judges of the county court to levy any taxes not specified in Section 12859 unless ordered to do so as provided in Section 12860. Section 12863 requires the county court to ascertain the sum necessary to be raised for county purposes, and fixes the rate of taxes on the several subjects of taxation so as to raise the required sum, etc.

Section 12865: For county purposes in counties having ten million dollars and not exceeding thirty million dollars, the rate shall not exceed fifty cents on the hundred dollars valuation. This section was repealed and re-enacted (Laws 1921, p. 677) with a proviso:

"Provided, however, the county court shall not have power to order a rate of tax levy on real or personal property for the year 1921 which shall produce more than ten per cent in excess of the amount produced, mathematically, by the rate of levy ordered in 1920, and in no subsequent year may any county court, or any officer or officers acting therefor, order a rate of tax levy that will produce, mathematically, more than ten per cent in excess of the taxes levied for the previous year. Provided further, that the qualified voters of any county, by a majority vote, shall have power to fix any additional rate higher than above provided for within the limits prescribed by the...