State ex rel. School Dist. of Kansas City v. Waddill

• Decision Date: 05 August 1932
• Citation: 52 S.W.2d 476,330 Mo. 1118
• Parties: State of Missouri at the Relation of the School District of Kansas City, Relator, v. J. T. Waddill, Forrest Smith and Jessie Mitchell, composing and constituting the State Tax Commission of Missouri, and the State Tax Commission
• Court: Missouri Supreme Court

52 S.W.2d 476

330 Mo. 1118

State of Missouri at the Relation of the School District of Kansas City, Relator, v. J. T. Waddill, Forrest Smith and Jessie Mitchell, composing and constituting the State Tax Commission of Missouri, and the State Tax Commission

Supreme Court of Missouri

August 5, 1932

Alternative writ quashed.

McCune Caldwell & Downing for relator.

(1) The property of Kansas City Public Service Company is subject to taxation to the same extent as the real and personal property of private persons, and the only way that said property can be subject to taxation for school purposes to the same extent as the property of private persons is by levying the same rate therefore on its property in each district as is levied upon the property of private persons. Secs. 10018, 10019 and 10020, R. S. 1929; State ex rel. Gottlieb v. Metropolitan Street Ry. Co., 161 Mo. 188; Kansas City Public Service Co. v. Ranson, 41 S.W.2d 169. (2) Where there is a right there is a remedy. State ex rel. Ziegenhein v Tittmann, 103 Mo. 553; State ex rel. Railroad Co. v Severance, 55 Mo. 378; Baumhoff v. Railroad Co. and St. Louis Union Trust Co., 205 Mo. 248; State ex rel. Macklin v. Rombauer, 104 Mo. 625; Secs. 10018 and 10024, R. S. 1929. (3) It is the duty of respondents and they have full power to assess the property of Kansas City Public Service Company in each school district in Jackson County separately, in order that the county court may perform its statutory duty in levying a tax upon said property in each school district at the rate levied upon the property of private persons in each said school district. Secs. 9819 and 9854, R. S. 1929; Secs. 10028 and 10027, R. S. 1929; Secs. 9854 and 9856, R. S. 1929; Secs. 10017 and 10021, R. S. 1929; State ex rel. Thompson v. Jones, 41 S.W.2d 393; State ex rel. Thompson v. Collier, 41 S.W.2d 400. (4) The city of Kansas City and the School District of Kansas City are separate corporations and their boundary lines are not coterminous. Admitted by the pleadings. Charter of Kansas, Sec. 4, Subdiv. 65, Art. I, p. 100; Secs. 9515, 9273 and 9536, R. S. 1929.

Stratton Shartel, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondents.

(1) Mandamus only issues where relator has and proves a clear legal right to the relief demanded and respondent is under the imperative duty to perform. Under no construction of the statutes in question has relator the legal right to require the State Tax Commission or the State Board of Equalization to assess or apportion Service Company's street railroad property to school districts, nor are respondents under any duty to so perform. Hence mandamus will not lie. (a) In order to make the writ of mandamus available, it is essential that relator have and prove a clear legal right to the relief demanded and that respondents be under the imperative duty to perform. State ex rel. Porter v. Hudson, 226 Mo. 265; Adair Drainage District v. Railroad Co., 280 Mo. 257; State ex rel. Gehner v. Thompson, 316 Mo. 1186; State ex rel. Buckley v. Thompson, 323 Mo. 257; In re Nathan Frank, 320 Mo. 1091. (b) The statutes clearly prescribe how street railroad property shall be assessed, apportioned and certified. Said statutes not only make no provision for assessment, apportionment and certification to school districts, but negative the idea that any such action is authorized or required. Secs. 9819, 9854, 9855, 9856, R. S. 1929; State ex rel. Thompson v. Jones, 41 S.W.2d 393; State ex rel. Thompson v. Collier, 41 S.W.2d 400; Art. 13, Chap. 59, R. S. 1929; Secs. 10018, 10019, 10020, R. S. 1929; Secs. 10012, 10017, 10022, 10024, 10028-9, R. S. 1929; State ex rel. Gottlieb v. Metropolitan St. Ry. Co., 161 Mo. 188; Kansas City Public Service Co. v. Ranson, 41 S.W.2d 169; State ex inf. Barrett v. Imhoff, 291 Mo. 617. (c) Conceding that the street railroad tax statutes, as construed in the Gottlieb and Ranson cases, contemplate taxation of street railroad property for school tax purposes at the local rates of the respective school districts in which situated, no statutory provision is made for assessment, apportionment and certification of such property to school districts so as to make said statutes effective to that end. Therefore, respondents have no authority or duty to assess and certify Service Company's property by school districts. (d) The maxim "where there is a right there is a remedy" has no application here. It cannot be extended to require the court to usurp legislative functions and amend statutes or supply deficiencies therein. There can be no assessment, apportionment and certification of Service Company's property except as prescribed by existing law, which makes no provision for assessment by school districts. State ex rel. Koeln v. Lesser, 237 Mo. 318. (2) The statutes upon which relator relies as imposing the duty upon respondents of assessing, apportioning and certifying Service Company's street railroad property by school districts are taxing statutes and are to be strictly construed. Said statutes are clear and unambiguous, impose no duty of assessment, apportionment or certification of street railroad property by school districts, and should not be extended by construction to so require. Hence mandamus will not lie. (a) The statutes in question are taxing statutes and are to be strictly construed. State ex rel. Natl. Life Ins. Co. v. Hyde, 292 Mo. 352; State ex rel. Compton v. Buder, 308 Mo. 260; State ex rel. Ford Motor Co. v. Gehner, 325 Mo. 29; State ex rel. American Central Ins. Co. v. Gehner, 315 Mo. 1130. (b) In specifically providing how street railroad property shall be assessed, apportioned and certified, with no provision for assessment, apportionment and certification to school districts, the statutes negative the idea that there shall be assessment, apportionment and certification to school districts. State ex rel. Barlow v. Holtcamp, 322 Mo. 268; Ex parte Keane v. Strodtman, 323 Mo. 167. (c) Relator seeks a construction of said statutes so as to require, by inference, the assessment, apportionment and certification of street railroad property to school districts. Said statutes are clear and unambiguous, so that there is no ground for construction. State ex rel. Cobb v. Thompson, 319 Mo. 496; State ex rel. Liggett & Myers Tobacco Co. v. Gehner, 316 Mo. 1082; Betz v. K. C. Southern Ry. Co., 314 Mo. 411; Lauck v. Reis, 310 Mo. 200. (3) Relator is really asking this court to rewrite the railroad tax statutes in order to insert provisions therein not inserted by the Legislature, in order to render the street railroad tax statutes workable. It is simply a matter of casus omissus, which calls for legislative and not judicial action. 11 C. J. 31; 36 Cyc. 1113; Nichols v. Mutual Life Ins. Co., 176 Mo. 376, 62 L. R. A. 657; State ex inf. Crow v. West Side St. Ry. Co., 146 Mo. 170; Clark v. Railroad Co., 219 Mo. 541; Dworkin v. Caledonian Ins. Co., 285 Mo. 363; Re Election of Executive Officers, 31 Neb. 275, 10 L. R. A. 807; D. L. & W. Railroad Co. v. Central S. Y. & T. Co., 45 N.J.Eq. 65; State of Delaware v. Rose, 33 Del. 174, 45 A. L. R. 89; Railroad Co. v. Amos, 94 Fla. 597; Commonwealth v. P. Lorillard Co., 129 Va. 81; King v. Viscoloid Co., 219 Mass. 425; Board of Supervisors of Montgomery County v. Tallant, 96 Va. 726; Board of Councilmen of City of Frankfort v. Stone, 22 Ky. L. Rep. 502, 108 Ky. 400, 58 S.W. 373; Fouracre v. White, 30 Del. 58; State ex rel. Union E. L. & P. Co. v. Gehner, 315 Mo. 671. (4) Relator is really seeking an apportionment, not an assessment of Service Company's street railway property to school districts. All power of apportionment rests in the State Board of Equalization, not the Tax Commission. The mandamus suit is against the wrong party. Sec. 10022, R. S. 1929; State ex rel. Union E. L. & P. Co. v. Baker, 316 Mo. 865; Railway Co. v. Apperson, 97 Mo. 306; State ex rel. Brumbaugh v. Railroad Co., 149 Mo. 644.

OPINION

Ragland, J.

This is an original proceeding in mandamus. The petition for the writ, filed by relator school district of Kansas City, on April 21, 1932, is in two counts. The first count concludes with a prayer for the issuance of an alternative writ commanding the respondent, State Tax Commission, "to assess the property of the Kansas City Public Service Company for the year 1930 within the territorial limits of relator, and to issue its additional or supplemental certificate to the county court of Jackson County, stating the assessed value of the property of said Kansas City Public Service Company in said school district," or show cause, etc. The second count asks the issuance of a writ to compel the performance of like acts for the year 1931. By agreement of the parties, respondent made return to the petition as and for the alternative writ, the issuance of the writ being waived. Upon the return coming in, relator filed its motion for judgment on the pleadings. The facts, therefore, are to be gathered from the return and the allegations of the petition not denied.

The Kansas City Public Service Company (hereinafter called the Service Company) is a corporation and owns and operates a street railroad in Jackson County. The greater portion of its property lies within the corporate limits of Kansas City, but one or more of its lines extend beyond those limits into Jackson County and thence into the city of Independence. A portion of its street railroad lies within the territorial limits of relator school district, but the boundaries of the district and those of Kansas City are not co-extensive or co-terminus.

The respondent in connection with the State Board of Equalization, in 1930 and again in 1931, assessed, adjusted and equalized the aggregate valuation of the property of the Service Company and...