State ex rel. v. St. Louis & San Francisco Railroad
| Decision Date | 03 October 1928 |
| Docket Number | No. 28161.,28161. |
| Citation | 10 S.W.2d 918 |
| Court | Missouri Supreme Court |
| Parties | THE STATE at Relation and to Use of TOM K. JOHNSON, Treasurer and Ex-Officio Collector of Revenue of Cass County, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY. |
Appeal from Cass Circuit Court. — Hon. C.A. Calvird, Special Judge.
AFFIRMED.
Thomas N. Haynes, Allen Glenn & Son and George R. Chamberlin for appellant.
(1) The occasions and mode of exercising the power of taxation are within the discretion of the lawmaking authorities, which are here delegated to the county court, limited to the constitutional requirements. Boonville Nat. Bank v. Collector, 298 S.W. 792; State ex rel. v. Springer, 134 Mo. 212; Taylor v. L. & N. Ry. Co., 88 Fed. 373. (a) The question of what was a proper rate of tax to produce the amount required, is a matter which rests within the discretion of the county court, as it is by no means certain what the deficiencies in collection will amount to. Sec. 13030, R.S. 1919; People v. Wabash Ry. Co., 129 N.E. 826; People v. Standberg Co., 115 N.E. 741, 118 N.E. 469; State ex rel. Kersey v. W.U. Tel. Co., 304 Mo. 207. (b) All right to tax is legislative; this is delegated to the county court. Courts will not interfere with this unless manifestly abused. The constitutional questions raised in amended answer are also answered in these cases. Keith v. Bingham, 100 Mo. 307; Heman v. Schulte, 166 Mo. 417; Moberly v. Hogan, 131 Mo. 19; St. Joseph v. Ferrell, 106 Mo. 437; State ex rel. v. Wheeler, 5 L.R.A. (N.S.) 1142; Bank v. Staats, 155 Mo. 55; In re Birmingham Dr. Dist., 274 Mo. 150; State ex rel. v. Burton, 266 Mo. 711. (2) The courts cannot interfere with the rate of taxation which is levied by the Legislature, or agencies provided by the Legislature. Watson v. Kerr, 279 S.W. 695; State v. Wheeler, 5 L.R.A. (N.S.) 1142; State ex rel. v. Andree, 216 Mo. 617; State ex rel. v. Goodbar, 195 Mo. 561; State ex rel. v. Vaile, 122 Mo. 34; Decker v. Diemer, 229 Mo. 296. (4) The levy of a rate which would raise an excess is not lost to taxpayers, and the power to so levy is delegated by the Legislature to county courts. Baltimore Ry. Co. v. People (Ill.), 66 N.E. 150; People v. C.B. & Q. Ry. (Ill.), 125 N.E. 314; People v. Sandberg Co. (Ill.), 115 N.E. 741; State ex rel. v. Ellison, 285 Mo. 301; Pope v. Lockhart, 299 Mo. 141; Decker v. Diemer, 229 Mo. 331; State ex rel. Johnson v. St. L. & S.F. Ry. Co., 286 S.W. 360; St. Louis Elec. Co. v. Koeln, 287 S.W. 427. (5) Tax bill shall be prima-facie evidence that the amount claimed in said suit is just and correct. Sec. 12945, R.S. 1919; State ex rel. v. Ry. Co., 116 Mo. 15; State ex rel. v. Wabash Ry. Co., 251 Mo. 134; State ex rel. v. Dungan, 265 Mo. 353; State ex rel. v. Ry. Co., 101 Mo. 136; Holloway v. Howell Co., 240 Mo. 613; Pope v. Lockhart, 299 Mo. 141. (6) The judgment of a court of competent jurisdiction cannot be impeached collaterally in another court, in an action between the same parties, and upon a point once put in issue and decided. The party must apply to the court which pronounced the judgment to have it vacated. This judgment is valid until the same is set aside. Johnson v. Realty Co., 167 Mo. 325; Morrill v. Morrill, 11 L.R.A. 159; Levitt v. Russell, 138 Mo. 474; York v. Stigall, 204 Mo. 407; Hartzfield v. Taylor, 207 Mo. 236; State ex rel. v. Bank, 279 Mo. 228; Raley v. Guinn, 76 Mo. 263; Dunham v. Wilfong, 69 Mo. 355; Wellshear v. Kelley, 69 Mo. 343; State ex rel. v. Tel. Co., 165 Mo. 502; Smith v. Black, 231 Mo. 681; State ex rel. v. Ellison, 285 Mo. 301.
E.L. Miller, L.E. Durham, Henry S. Conrad, D.C. Barnett and Hale Houts for respondent.
(1) The case was tried before the court without a jury. Neither party requested any findings of fact, nor was any declaration of law asked, other than a general declaration asked by each party that the finding and judgment be in its favor, which, of course, amounted to no request for declaration of law. (2) The case is not one in equity but is an action at law, under the statutes, for the collection of the tax in question. Sec. 13040, R.S. 1919; Kansas City v. Field, 285 Mo. 253. The finding of the trial court, sitting as a jury, is conclusive. State ex rel. Arnold v. McCune, 252 S.W. 657. As in all actions at law tried by the court sitting as a jury, the judgment is not to be disturbed "if upon any reasonable theory of the law and the facts it can be sustained," and the judgment is conclusive if it "can be sustained under any permissible view of the law and the facts." (3) Upon the former appeal the law of the case was settled by this court. It clearly appeared from the evidence not only that the funds were not in danger of being lost, but that the court, as a matter of fact, considered them entirely secure and collectible and that it was not induced to make the excessive levy in question by reason of the failure of the bank or any fear as to the security of the funds. Even had the oral testimony tended to show that the funds were insecure and the county court was fearful that they would be lost and was actuated by such reason in making the levy, and, even had there been no countervailing evidence by the defendant, the question of fact was one for the court, sitting as a jury, and the finding of the court against the plaintiff would have been conclusive. Union Trust Co. v. Hill, 283 Mo. 278.
This is a suit upon a tax bill to recover a balance alleged to be due from defendant under a levy, made in 1920, by the County Court of Cass County, of fifty cents on the $100 upon the assessed valuation of all property in said county, for interest and sinking fund purposes, on account of the bonded indebtedness then existing against said county.
In 1908 Cass County funded its then existing indebtedness, and issued bonds in the sum of $390,000, bearing four per cent interest. In May, 1920, the time when the general levy was made, there were outstanding and unpaid of said bonds, the sum of $76,000 of which, bonds in the sum of $30,000 had been called for payment. There was at that time a balance of $23,686.17 belonging to the bonded debt fund, remaining from previous levies; but this fund, with other county funds, had been on deposit with the Bank of Harrisonville, the county depository, which, about the first of February, 1920, had been taken in charge by the State Finance Department as an insolvent bank, and the fund was not then immediately available. The Bank of Harrisonville, the depository, had given a bond as such, with thirteen individuals as sureties. Through cooperation of the individual depositors of the failed bank, and the sureties upon the depository bond, there was a reorganization, and the incorporation of a new bank, the State Bank of Harrisonville, through which all the county deposit, including the bonded debt fund, was paid in full. In this transaction the sureties on the depository bond of the old bank raised and paid into the new bank the sum of $150,000. This transaction was completed, and the restoration of all the county moneys made complete on July 12, 1920. Afterward, on August 9, 1920, and after receipt of the certificate of the State Auditor showing action of the State Board of Assessment and Equalization, and as provided by Section 13030, Revised Statutes 1919, the county court made the levy of fifty cents on the $100 of assessed valuation upon the property of defendant, and other railroad companies. The total assessed valuation on which the levy was made, including defendant's property, was $18,238,111, and the total tax levied for bond purposes was therefore $91,190.55. Under that levy, the tax against defendant's property was $2306.41. On December 29, 1920, the defendant paid upon this tax the sum of $1522.23, which would have been the amount of defendant's tax had such tax been levied at the rate of thirty-three cents on the $100 valuation, the contention of defendant being that the tax resulting from a levy of thirty-three cents on the $100 for bond purposes, with the fund already on hand, would have been ample for the redemption of all the outstanding bonds.
The cause has been tried twice and this is the second appeal. Upon the first trial there was judgment in favor of the defendant. The determination of the issues presented upon that appeal may be seen in the former opinion, 315 Mo. 430. The cause was submitted upon the second trial upon the same pleadings as at the first trial. Upon the first trial, three defenses were made. The first was, that a levy of fifty cents on the $100, in addition to the other county taxes which were levied, exceeded the maximum rate as fixed by the Constitution. This defense was determined against the defendant. The next defense was that the county court, at the time of the issuance of said funding bonds, by its order, had fixed the rate of twenty-five cents as the rate at which taxes were to be levied for the payment of annual interest on the bonds, and the creation of a sinking fund for their redemption when due, and that therefore, no higher rate than twenty-five cents could be levied for such purposes. This defense was also determined against the defendant. The other defense made was, that the levy of fifty cents on the $100 valuation was grossly excessive, and wholly unnecessary to pay off the amount of bonds then outstanding, and was an illegal and void levy.
Upon the rulings made in the first trial arising upon the last mentioned issue, the judgment was reversed, and the cause remanded. The correctness of the ruling in favor of defendant at the second trial, upon the defense last mentioned, is the issue presented upon this appeal. The evidence was that out of the proceeds of the levy in question, together with the balance on hand belonging to the fund at the time that levy was made, all of the outstanding bonds and accrued interest were paid, and that after such complete payment there remained in the said fund on ...
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