State ex rel. S. S. Kresge Co. v. Howard

• Decision Date: 29 December 1947
• Docket Number: 40765
• Parties: State of Missouri, at the Relation of S.S. Kresge Company, a Corporation, Relator, v. Ben H. Howard, Comptroller of the Department of Revenue of the State of Missouri
• Court: Missouri Supreme Court

208 S.W.2d 247

357 Mo. 302

State of Missouri, at the Relation of S.S. Kresge Company, a Corporation, Relator, v. Ben H. Howard, Comptroller of the Department of Revenue of the State of Missouri

No. 40765

Supreme Court of Missouri

December 29, 1947

Rehearing Denied February 9, 1948.

Original Proceeding in Mandamus.

ALTERNATIVE WRIT MADE PEREMPTORY.

Alternative writ made peremptory.

Stanley Garrity, Robert S. Eastin and Scott R. Timmons for relator; Caldwell, Downing, Noble & Garrity of counsel.

(1) Relator was entitled to a certificate of authority from said Secretary of State to transact business in this state under its amended charter, without being required to pay a domestication tax as in the case of its original entry into this state in 1916. State ex rel. the H. D. Lee Co Inc., a corporation, v. Wilson Bell, Secretary of State of the State of Missouri, 355 Mo. 94, 195 S.W.2d 492, and sections of the Corporation Code of 1943 therein cited. (2) The payment of the $ 1710 to the State Treasurer, upon demand of the Secretary of State, although paid without protest, was made under duress and was not voluntary and hence became a legal claim against the state which has no right to it under the decision of this court in the H.D. Lee Company case, supra. American Mfg. Co. v. St. Louis, 192 S.W. 399; State ex rel. American Mfg. Co. v. Reynolds, 270 Mo. 589, 194 S.W. 878; Austin Natl. Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242, decided on facts similar to those governing the case at bar. (3) The Constitution of Missouri of 1945 is not a grant of legislative power to the legislature. It is a limitation upon legislative power. Therefore, the legislature of Missouri has power to, and may, pass any law not forbidden by the State or Federal constitutions. Constitution of Missouri, 1945, Sec. 1, Art. III, 59 C.J., p. 238, sec. 382 (b); State v. Shelby, 333 Mo. 1036, 64 S.W.2d 269, and cases therein cited. (4) And the legislature having plenary power to enact laws, absent constitutional restrictions, such restrictions must be expressed in the Constitution or clearly implied by its provisions. McGrew v. Mo. Pac. R. Co., 230 Mo. 496, 132 S.W. 1076; State v. Shelby, supra. (5) There is no provision in the Missouri Constitution of 1945 which is a denial of, or a limitation upon, the right and power of the legislature to pass, nor of the Governor to approve, Sec. 9.061 of House Bill 445 appropriating to S. S. Kresge Company said sum of $ 1710.00 for relief for its overpayment of corporation qualification taxes. The appropriation clearly meets the requirements of Sec. 23 of Art. IV of our new constitution which states: "Every appropriation law shall distinctly specify the amount and purpose of the appropriation without reference to any other law to fix the amount or purpose." (6) Section 38; Art. III is not violated by the appropriation of $ 1710.00 for the relief of the S.S. Kresge Company for a return of the amount paid for corporation qualification taxes unlawfully exacted as a condition precedent to doing business in Missouri, because: The refund of taxes illegally assessed, is for a public purpose. 59 C.J., p. 199, sec. 342 (b); Commonwealth v. Ferries Co., 120 Va. 827, 92 S.E. 804; State ex rel. American Mfg. Co. v. Reynolds, 270 Mo. 589, 194 S.W. 878; In re Heinemann, 201 Wis. 484, 230 N.W. 698; Austin Natl. Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242. (7) An appropriation made by the General Assembly to discharge a moral obligation of the state or any of its departments is not a grant of public money within the meaning of this constitutional provision. State ex rel. Baird v. Holladay, 66 Mo. 385; State ex rel. v. Hackmann, 275 Mo. 636; State ex rel. v. Reynolds, 270 Mo. 589, 194 S.W. 898; Gross v. Gates, 109 Vt. 156, 194 A. 465; Urquhart v. State, 180 Ark. 937, 23 S.W.2d 963; Fairfield v. Huntington, 23 Ariz. 528, 205 P. 814, 22 A.L.R. 1438; People ex rel. Douglas v. Barrett, 370 Ill. 464, 19 N.E.2d 340; State ex rel. Wharton v. Babcock, 181 Minn. 409, 232 N.W. 718; Woodall v. Darst, 71 W.Va. 350, 77 S.E. 264, 80 S.E. 367, 44 L.R.A. (N.S.) 83, Ann. Cas. 1914 (B) 1278; State ex rel. McPherren v. Carter, 30 Wyo. 22, 215 P. 477, 28 A.L.R. 1089; United States v. Realty Co., 163 U.S. 427, 41 L.Ed. 215; Pope v. United States, 323 U.S. 1, 89 L.Ed. 3. (8) The construction given to a constitutional provision by the legislature in passing a law, though not binding on the courts, is persuasive. Gantt v. Brown, 244 Mo. 271, 149 S.W. 644. (9) Section 40 (7) of Article III cannot apply to the appropriation to the S.S. Kresge Company of $ 1710 because the legislature found, as did the Governor in approving the appropriation, that this amount was illegally exacted from the company under the decision of this Court in the H.D. Lee Company case, 355 Mo. 94, 195 S.W.2d 492. Furthermore, said Section 40 does not deny the legislature the right to pass special laws except for the purposes therein specifically set out. The only provision dealing with money paid into the State Treasury, is said Section 40 (7) prohibiting the passing of any special law ". . . refunding money legally paid into the Treasury." This would clearly imply the right to make an appropriation for money illegally paid into the Treasury. It is plain that the Constitution does not expressly deny this right. Constitution of Missouri, 1945, Sec. I, Art. III; State v. Shelby, 333 Mo. 1036, 64 S.W.2d 269; McGrew v. Mo. Pac. Railroad Co., 230 Mo. 496, 132 S.W. 1076.

J. E. Taylor, Attorney General, and Will F. Berry, Jr., Assistant Attorney General, for respondent.

(1) The Act violates Section 23 of Article III of the Constitution of Missouri. Sec. 23, Art. III of the Constitution; State ex rel. Davis v. Smith, 75 S.W.2d 828, 335 Mo. 1069; State ex rel. Gaines v. Canada, 113 S.W.2d 783, 342 Mo. 121, and 131 S.W.2d 217, 344 Mo. 1238. (2) The Act contravenes the provisions of subsection 7 of Section 40 of Article III of the Constitution of Missouri. Subsec. 7, Sec. 40, Art. III of the Constitution; Couch v. Kansas City, 127 Mo. 436, 30 S.W. 117; Thompson v. St. Louis-S.F. Ry. Co., 69 S.W.2d 936, 334 Mo. 958; State ex rel. v. Walker, 85 Mo. 41. (3) The Act contravenes subsection 30 of Article III of the Constitution of Missouri. Subsec. 30, Sec. 40, Art. III of the Constitution; State ex rel. H.D. Lee Co. v. Bell, 195 S.W.2d 492, 355 Mo. 94. (4) The Act contravenes the provisions of Section 38(a) of Article III of the Constitution. Sec. 38(a), Art. III of the Constitution; State ex rel. v. Walker, 85 Mo. 41. (5) The Act contravenes Section 1 of Article II, and Section 22 of Article IV of the Constitution of Missouri. Sec. 1, Art. II of the Constitution; Sec. 22, Art. IV of the Constitution; State ex rel. v. Higgins, 125 Mo. 364, 28 S.W. 638. (6) Mandamus will not lie to control the quasi-judicial or discretionary acts of a public official, nor when the relief granted by such writ would be doubtful. State ex rel. Gehner v. Thompson, 293 S.W. 391, 316 Mo. 1169.

OPINION

Douglas, J.

Relator brings this original proceeding in mandamus to compel the State Comptroller to certify to the State Auditor for payment relator's claim of $ 1710, and to execute the warrant required to be transmitted with the certification, all prerequisite to the payment of the claim. See Secs. 11008.36, 11008.43a Mo. R.S.A.; 1945 Laws pp. 1441, 1443, prescribing the duties of the comptroller under the act setting up the Department of Revenue created by the new Constitution of 1945.

The facts are not in dispute. Relator is a foreign corporation and for many years has been licensed to do business in this State where it operates a number of retail stores. It was incorporated in Michigan in 1916 for a duration of thirty years or until March 9, 1946. Before its charter expired it amended its articles of incorporation to extend its corporate duration for an additional thirty years, and presented a copy of the amendment to the Secretary of State of Missouri for filing here in order to obtain a renewal of its certificate of authority to do business in this State. The Secretary of State refused to issue such a certificate until relator paid the domestication tax in the same amount required if it were seeking an original qualification to do business here. The domestication tax amounted to $ 1710 which relator paid, together with other fees which are not involved in this case.

A few months later this Court handed down a decision in State ex rel. H.D. Lee Co., Inc. v. Bell, 355 Mo. 94, 195 S.W.2d 492, holding that under the new corporation code a foreign corporation is entitled to have a charter amendment extending its corporate duration filed and its authority to do business continued without being required to pay such domestication tax. For the new corporation code see 1943 Laws p. 410 et seq.; Mo. R.S.A. Sec. 4997.1 to 4997.176.

Relator then attempted to obtain a refund of the $ 1710 but was refused. However, the 64th General Assembly in House Bill 445, the omnibus appropriation act, provided by Section 9.061: "There is hereby appropriated out of the State Treasury, chargeable to the General Revenue fund, the sum of $ 1710. . . . for the relief of the S.S. Kresge Company because of the over-payment of foreign corporation qualification taxes." This act was approved and duly became law.

Based on this act, relator presented its claim for payment of such amount but the Comptroller refused to certify it, and to execute the warrant for its payment. The Comptroller's refusal rests solely on the Attorney General's advice that such appropriation to relator is unconstitutional. The Comptroller raises no other issue as to the validity of the appropriation and assigns no other causes for his action in refusing to certify the claim...