State v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 20 February 1917
• Docket Number: No. 18122.,18122.
• Citation: 270 Mo. 251,192 S.W. 990
• Parties: STATE ex rel. and to Use of VAUGHT, County Collector of Revenues, v. ATCHISON, T. & S. F. RY. CO.
• Court: Missouri Supreme Court

192 S.W. 990

270 Mo. 251

STATE ex rel. and to Use of VAUGHT, County Collector of Revenues, v. ATCHISON, T. & S. F. RY. CO.

No. 18122.

Supreme Court of Missouri, Division No. 1.

February 20, 1917.

Opinion Modified and Motion for Rehearing Denied March 12, 1917.

Appeal from Circuit Court, Scotland County; Chas. D. Stewart, Judge.

Suit by the State of Missouri, on the relation of Alfred Vaught, Collector of Revenues of Scotland County, against the Atchison, Topeka, & Santa Fé Railway Company, Judgment for the plaintiff, and defendant appeals. Affirmed.

This is a suit for taxes amounting to $574.12, with penalties and attorneys' fees, in which the judgment was for the plaintiff. The defendant appeals.

The petition states that the taxes sued for were assessed and levied "for county purposes for the general road fund." The defendant, after the ordinary general denial, answers as follows:

"Defendant further answering said petition states that the sum of five hundred seventy-four and 12/100 ($574.12) dollars alleged as owing by this defendant to the county of Scotland and designated in plaintiff's petition as the `general road fund' is obtained by an attempted levy of two mills per dollar on the right of way owned by this defendant in said Scotland county, Missouri; and that this tax levy apparently is made under authority of section 10481, Revised Statutes of Missouri 1909, said provision being known as the `general road tax.'

"Defendant further states that all taxes that may be levied by county courts are designated in article 10 of the Constitution of the state of Missouri; that no such tax as provided by said section 10481 of the Revised Statutes of Missouri 1909, is anywhere authorized in said Constitution, and that said levy of two mills on the dollar, as provided for in section 10481, is without authority and void because it is contrary to and violative of article 10 of the Constitution of the state of Missouri.

"Defendant further states that the total valuation of taxable property in said Scotland county, Missouri, for the year 1912 is less than six million ($6,000,000.00) dollars, and that by reason thereof under the limitations of article 10, section 11, of the Constitution of the state of Missouri, the amount of taxes that can be lawfully levied upon property in said county is five (5) mills on the dollar, and defendant states that the attempted tax levy of two mills on the dollar for road purposes is in excess of the lawful rate of taxes in said Scotland county, Missouri, and is therefore specifically a direct violation of section 11, article 10, of the Constitution of the state of Missouri, and is for that reason without authority and void."

The plaintiff replies, among other things, as follows:

"Plaintiff for further reply states that said county court in addition to the amount they could levy under section 11 of article 10 of the Constitution saw proper to make a special levy, as provided by section 22 of said article of the Constitution of Missouri, and that the taxes sued for by plaintiff in his petition are the said taxes so levied and provided by said section 2 of article 10 of the Constitution and was in force at the time of the levying of said taxes."

The order of the county court for Scotland county levying these taxes is as follows:

"In compliance with section ____ of article ____, chapter ____, of the Revised Statutes of 1909 of the state of Missouri: It is ordered by the court that there be and is hereby levied on the assessed valuation of the railroad, telegraph and telephone property of the county for the year 1912 as adjusted and equalized by the state board of assessment and equalization as shown by the certificate of the state auditor for said year, the following taxes, to wit: For state purposes, one and nine-tenths (1.9) mills on each dollar valuation. For the purpose of paying the current expense of the county for the ensuing year to be known as the county revenue fund, there is levied five (5) mills on each one dollar valuation to be apportioned as follows, to wit: For officers' salary fund, one and one-half (1½) mills. For jury and election fund, one-half (½) of a mill. For road and bridge fund, one and one-half (1½) mills. For contingent fund, three-fourths (¾) of a mill. For the payment of interest on funding bonds as per order of the Scotland county circuit court at its February term, 1893, there is levied a tax of six (6) mills on each one dollar valuation to be known as the bond interest fund. For the special road and bridge fund there shall be levied and collected one-half (½) mill on each one dollar valuation. For the purposes estimated in the name prescribed by law there shall be levied and collected a tax of two (2) mills on each one dollar valuation to be apportioned when collected to the several road districts as provided by law, to be known as the road tax fund."

The case was tried to the court, Hon. D. Stewart, judge of First judicial circuit, presiding, on May 17, 1913. Motions for new trial and in arrest were filed the same day and continued to the November term, when they were overruled and leave granted the defendant to file bill of exceptions during the following May term, at which, on May 15, 1914, it was signed by Judge Stewart and duly filed, being "approved and agreed to" by the plaintiff by writing under the signature.

Thomas R. Morrow, George J. Mersereau, and John H. Lathrop, all of Kansas City, and J. D. M. Hamilton, Jr., of Topeka, Kan., for appellant. J. M. Jayne, of Edmond, Okl., and H. V. Smoot, of Memphis, for respondent.

BROWN, C. (after stating the facts as above).

The defendant contests the validity of the tax sued for on the ground that it exceeds the amount limited in section 11 of article 10 of the Constitution for county purposes, and does not come within the authority granted by the amendment of 1908 embodied in section 22 of the same article. In support of its position it leans to some extent upon the form of the order of the county court making the levy, which was given in evidence, but not set out in the pleadings. The plaintiff challenges the bill of exceptions because it is signed by Judge Stewart of the First judicial circuit before whom the cause was tried in that circuit, while Scotland county was a part of it, instead of being signed by Judge Pettingill who had been appointed judge of the new Thirty-Seventh judicial circuit, to which that county had been attached.

It will be seen that the point made is quite technical, the bill of exceptions having been signed by the judge, who alone held in his own breast the proceedings, and being admitted to be true.

It is apparently conceded that before the enactment, in 1889, of the provisions of section 2032 of our present Revision, the judge who tried the cause was the only one competent to sign the bill, and that his death or retirement from office before signing it would preclude the unsuccessful party to the judgment from a review of any matter of exception by appeal or writ of error. It was evidently to remedy this condition that the section was enacted. Its necessity flowed naturally from those provisions of our Code relaxing the common-law rule that exceptions must be written out and signed during the progress of the trial. This section provides:

"In any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding acting judge of the court where the case was heard."

That this section was enacted to secure as effectually as possible the right of review of decisions of the trial courts is evident, and that its remedial provisions should be construed in harmony with that evident purpose goes without saying. It only remains to notice its application to the facts of this case.

The Constitution (article 6, § 24) provides that the state shall be divided into circuits, in each of which one circuit judge shall be elected, and that whenever a circuit is abolished the office of the judge of such circuit shall cease. Section 29 of the same article is as follows:

"If there be a vacancy in the office of judge of any circuit, or if the judge be sick, absent, or from any cause unable to hold any term or part of term of court, in any county in his circuit, such term or part of term of court may be held by a judge of any other circuit; and at the request of the judge of any circuit, any term of court or part of term in his circuit may be held by the judge of any other circuit, and in all such cases, or in any case where the judge cannot preside, the General Assembly shall make such additional provision for holding court as may be found necessary."

We have quoted this section fully to call attention to the fact that the office of circuit judge is, by the terms of the Constitution which created it, a state and not in any sense a local office, and that the circuit and its courts are the judicial instruments of the state and not of any particular locality. The judge is a judicial officer of the state, and may exercise his functions as such in proper cases in any county. The circuit is simply the territorial unit of his creation, and when it is abolished the office which depends upon its existence ceases (Id. § 24), but the territorial unit of the court is the county.

We note particularly the clause in section 29 of the same article, which provides that at the request of the judge of any circuit any term of court or part of term in his circuit may be held by the judge of any circuit. Under this provision the request may originate in the caprice of the judge of the circuit in which the court is held as well as in any other condition. In Riggs v. Owen, 120 Mo. 176, 25 S. W. 356, De Kalb county, which constituted a part of the Twelfth judicial circuit of which Hon. O. M. Spencer was judge, was...