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

• Citation: 275 S.W. 932
• Decision Date: 07 October 1925
• Docket Number: No. 24202.,24202.
• Court: Missouri Supreme Court
• Parties: STATE ex rel. JOHNSON, County Revenue Collector, v. ATCHISON, T. & S. F. RY. CO.

275 S.W. 932

STATE ex rel. JOHNSON, County Revenue Collector, v. ATCHISON, T. & S. F. RY. CO.

No. 24202.

Supreme Court of Missouri, in Banc.

October 7, 1925.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

Action by the State, on the relation of Louis Johnson, Collector of the Revenue in and for Clark County, against the Atchison, Topeka & Sante Fé Railway Company, for taxes for the year 1921. From a judgment for plaintiff for the sum of $11,165.46, defendant appeals. Reversed and remanded.

Cyrus Crane, George J. Mersereau, John H. Lathrop, and Richard S. Righter, all of Kansas City, and T. L. Montgomery, of Kahoka, for appellant.

James H. Talbott, Marion L. Clay, and John M. Dawson, all of Kahoka, for respondent.

GRAVES, C. J.

Action by the collector of Clark county to recover from the defendant the sum of $11,165.46, claimed to be due for taxes for the year 1921. Defendant refused to pay, on the ground that, under the law of 1921 (Laws of Missouri for 1921, p. 677), the levy for 1921 for county purposes in Clark county exceeded the levy for like purposes in 1920 by more than 10 per cent. On December 31, 1921, before such taxes became due, there was a tender of $10,144.03, which the defendant claimed was all that it legally owed. In January there was a second tender of $10,245.48, which included the amount of the first tender ($10,144.03) plus $105.45, being a penalty of 1 per cent. for the month of January, 1922. There was a third tender, the purpose of which is stated in appellant's statement of the case thus:

"Appellant then discovered that the amount tendered did not equal the full amount of taxes legally due the county from appellant for the year 1921, after deducting appellant's proportion of the excess over the 10 per cent. increase for the previous year, and, on February 10, 1922, appellant made a tender of $10,245.48, and an additional tender of $179.62, being the difference between the amount already tendered and the amount which appellant owed after deducting the excess over and above the 10 per cent. increase of the amount of taxes for the preceding year, plus 2 per cent, penalty. The said Louis Johnson, relator herein, refused to accept each of the several tenders, and claimed and demanded the said sum of $11,165.46. The last of these three tenders was made after this action had been commenced."

The real contention here involves only the sum of $841.81 or even less, but, as the case involves the construction of the revenue laws of the state, this court has jurisdiction.

Appellant contends that, excluding a judgment levy, the total county levy for 1920, was only $83,789.82, and that the total levy for county. purposes in 1921, was $110,713.26, and that the latter exceeds 110 per cent. of the former by $18,544.47. The petition says:

"That there was legally assessed and levied against such property for the year ending June 1, A. D. 1920, for state, county, school, and other municipal purposes, the aggregate sum of $11,165.46. That of the taxes so assessed and levied there is now due and unpaid for state purposes the sum of $1,197.46; for county purposes, the sum of $5,322.57; $2,394.92, of which said county tax is denominated the county fund tax, the sum of $1,131.46 of said county tax is denominated road fund tax, the sum of $1,436.95, of said county tax is denominated special road and bridge fund tax, the sum of $359.24 of said county tax is denominated special levy judgment fund tax; for school purposes in said county, the sum of $4,550.35, for city, town, and other municipal purposes the sum of $95.08, amounting in the aggregrate to the sum of $11,165.46, which sum the defendant has failed to pay as required by law. The plaintiff is entitled to recover from defendant, a penalty of 2 per cent. per calendar month on the amount so due and unpaid, from the 1st day of January, A. D. 1922; until the same shall be paid, together with. the collector's commission of 2 per cent. on the whole amount."

The answer pleads the following provision in the act of 1921 (Laws of 1921, loc. cit. p. 678), which reads:

"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 years."

Relator, the county collector, challenges this provision of the law as being violative of the state Constitution, giving the provisions of the Constitution alleged to have been violated in the enactment of such provision. The court rendered judgment as follows:

"Now at this day, this cause coming on for hearing, both plaintiff and the defendant appearing by counsel; upon the pleadings, evidence, and counsel before the court, both parties waiving jury, and the court being duly advised in the premises, the court finds that the allegations contained in the plaintiff's petition are true, that all the funds sued on therein are due the plaintiff from the defendant, except as to the sum of $161.65, which the court finds has been excessively taxed against the defendant on the Clark county revenue fund.

"Wherefore it is ordered, considered, and adjudged by the court that the plaintiff have judgment for the sum of $11,165.46 less $161.65 and that plaintiff's judgment is therefore for the sum of $11,003.81, together with interest thereon from January 1, 1922, in the sum of $660.23, and that plaintiff" have judgment in the sum of $223.28 collector's commission on said taxes sued on in plaintiff's petition, and that plaintiff have judgment in the sum of $200 attorney's fees for plaintiff's attorney in managing and conducting his suit, taxed as cost, and that plaintiff have judgment in toto including the taxes sued on, interest thereon, and plaintiff's commission thereon and plaintiff's attorney fee therein, aggregating the sum of $12,097.32, that same be a lien against defendant in favor of the state of Missouri and costs, and that plaintiff have special execution therefor."

Further specific admission and pleas in the answer can be noted if necessary in the opinion. The judgment of the trial court cut down the claim of $841.81 by over $165, as will be seen..

I. The first question is as to the validity of the act of 1921 (Laws of 1921, p. 677), in so far as it undertakes to limit the taxes of 1921 to 10 per cent. more than those levied for the year 1920. The lawmakers in 1921 passed a series of laws having similar restrictions. The law we are dealing with applies to counties. We, however, have dealt directly with a law applying to one class of cities, which law contains the same proviso as to the limitation of city taxes. State ex rel. City of Sedalia et al. v. Weinrich, City Treasurer, 291 Mo. 461, 236 S. W. 872. Section 11 of article 10 of the Constitution is a limitation on the power of a county court in levying taxes for county purposes, but this does not exclude the Legislature from further limiting the tax levy. To be more explicit, if the constitutional provisions limit the tax to 50 cents upon the $100, such limitation does not preclude the lawmakers from limiting it to 40 cents on the $100. The constitutional purpose was to fix a limit beyond which the lawmakers could not go, and not that the lawmakers could not further limit the levy, or increase a former levy, so long as the increase was within the constitutional limit. The Constitution at this point is not dealing with limitations upon assessments, but is only dealing with the limits of taxation, upon the property, whatever the assessed value may be, upon which the tax is to be levied. This is the force of the opinion in the Sedalia Case, supra, as is evident from its reference to Calland v. Springfield, 264 Mo. 298, 174 S. W. 396. The proviso of the act of 1921 (Laws of 1921 p. 678) is a legislative limitation. It does not undertake to confer a power to increase the tax levy, because the limitation of the tax levy is found in section 11 of article 10 of the Constitution. This proviso means that the former tax levy may be increased, but not to exceed an increase of 10 per cent. in any one year over the preceding year, but all such increases must be within the constitutional limitation. So construed, the proviso is not unconstitutional.

II. I do not understand that respondent urges that, with the construction which we have given section 11 of article 10, and the proviso of the act of 1921, supra, this would render the act and the proviso. therein unconstitutional. Their contention is (as we gather it) that, if the special road and bridge tax, provided for by section 22 of article 10 of the Constitution, is to be considered as a part and parcel of the taxes for county purposes, and the proviso of the act of 1921 is to be so construed as to include this special road and bridge tax as a part of the county tax, then with such construction it would violate section 22 of article 10 of the Constitution. This question is one of easy solution. Section 22 of article 10, reads:

"In addition to taxes authorized to be levied for county purposes under and by virtue of section 11, article 10 of the Constitution of this state, the county court in the several counties of this state not under township organization, and the township board of directors in the several counties under township organization, may, in their discretion, levy and collect, in the same manner as state and county taxes are collected, a special tax not exceeding twenty-five cents on each $100 valuation, to be used for road and bridge purposes, but for no other purpose whatever; and the power hereby given said county courts and township boards is declared to be a...