State v. Hemenway

• Decision Date: 17 November 1917
• Docket Number: No. 20076.,20076.
• Citation: 198 S.W. 825,272 Mo. 187
• Parties: STATE ex rel. MORGAN, Collector of Revenue, v. HEMENWAY.
• Court: Missouri Supreme Court

198 S.W. 825

272 Mo. 187

STATE ex rel. MORGAN, Collector of Revenue, v. HEMENWAY.

No. 20076.

Supreme Court of Missouri, In Banc.

November 17, 1917.

Appeal from Circuit Court, Howard County; Alexander H. Waller, Judge.

Action by the State, on relation of John B. Morgan, Collector of Revenue of the City of Glasgow, against Ida E. Hemenway. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

On January 14, 1916, this action was commenced in the circuit court of Howard county, Mo., by the state, on behalf of John B. Morgan, as collector of the revenue of Glasgow, a city of the fourth class, against defendant, Ida E. Hemenway, for delinquent taxes of the year 1915, assessed against 38 acres of land, situated in section 9, township 51, range 17, located in said city, and belonging to her. It is conceded that the petition is in the usual form.

Answer: The answer admits: The incorporation of Glasgow as a city of the fourth class; that said Morgan is the legally qualified and acting collector of said city; that defendant, at the time of the institution of this suit, and at all the dates mentioned in petition, was the owner of the real estate described in petition; that said city has taken all proper steps in the collection of taxes against defendant's property to entitle it to recover in this suit, provided the property is subject to levy and collection of city taxes. The answer then pleads as a defense:

"First. That the city of Glasgow was originally organized and incorporated under a special charter, by an act of the Legislature, approved February 27, 1845, entitled `An act to incorporate the city of Glasgow,' and by an act amendatory thereof, approved January 31, 1853, entitled `An act to amend an act to incorporate the city of Glasgow,' approved February 27, 1845.

"Second. That said city by virtue of said acts became and remained a city under a special charter, until the 23d day of March, 1915, when it elected to become a city of the fourth class, under the laws of the state of Missouri.

"Third. That the original act incorporating said city under special charter did not include defendant's said real estate, but that said real estate, together with much other real estate of the same character, was first included in the city limits by the act of the Legislature of 1853, amending said original act.

"Fourth. That by provisions of the amendatory act of 1853, and by which alone defendant's land became a part of the city of Glasgow, it was expressly provided that the mayor and councilmen of said city should not have the power to collect taxes on any real estate, annexed to the city by said act, unless the same was then, or should thereafter, be laid off into lots.

"Fifth. That defendant's said real estate was not at that time, and never has been, laid off into lots.

"Sixth. That defendant's said land was at the time of the passing of said amendatory act, and is now, and has at all times been adapted, fitted, and used only as farm and pastoral lands; that it is of uniform width of 582 feet, fronting south on the public road, and extending back to Bear creek, the northern boundary of the city, and containing about 38 acres.

"Seventh. That no other road, street, or thoroughfare of any kind, save the public road extending along the south boundary of said land, traverses or touches it.

"Eighth. That said land contains only a single habitation, the abode of defendant.

"Ninth. That the lands adjacent to defendant's said land are used only as farm and pastoral lands, and have not been subdivided into lots or blocks.

"Tenth. That there has been no increase in the population of the city of Glasgow, since the adoption of said amendatory act of 1853, creating a demand for defendant's land, or lands adjacent thereto, for residence or other city purposes, or adding to said lands, any value distinct from its natural use for farm and pastoral lands.

"Eleventh. That by said amendatory act of 1853 the Legislature of the state recognized that it would be unfair and unjust to allow lands of the character of defendant's land, used only for farm and pastoral lands, to be taxed for city purposes, and by said act withheld from the city of Glasgow the power to tax said lands until such time as it should be laid off into lots, and that said lands were brought into the city of Glasgow upon the express terms and conditions that the same were to be exempt from city taxes, until such time as they should be laid off into lots.

"Twelfth. That the terms and conditions of said act of 1853, and all of them, were and are now a binding obligation and contract on the part of the city of Glasgow, and the owners of the lands therein, and that said terms and conditions were not and could not be annulled or abrogated by the city of Glasgow on becoming a city of the fourth class, or otherwise, but still remain a binding limitation upon its power, and that an attempt of the city to tax this property is an unlawful, unreasonable, and arbitrary exercise of power.

"Thirteenth. That the city of Glasgow in assuming to tax defendant's lands, contrary to the terms of the act of the Legislature which brought the land into the city limits, is an attempt to impair the obligation of the contract contained in said act, and to deprive defendant of her property without due process of law, in violation of section 10, art. 1, of the Constitution of the United States, and sections 15 and 30 of article 2, of the Constitution of the state of Missouri, and take private property for public use without due compensation, contrary to section 21, art. 2, of the Constitution of Missouri."

A general demurrer was interposed by plaintiff to said answer, on the ground that it failed to controvert the allegations of said petition and because it did not contain facts sufficient to constitute a valid defense in this case. On September 28, 1916, the above demurrer was by the court overruled; plaintiff declined to plead further, and a general judgment was rendered in favor of defendant. Plaintiff, in due form, appealed from said judgment to this court.

Calfee & Westhues, of Jefferson City, for appellant. James A. Collet, of Salisbury, and James H. Denny, of Glasgow, for respondent.

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

I. The only question involved in this appeal is whether or not respondent's land is subject to taxation by the city of Glasgow. A determination of this issue involves the consideration of disputed questions of law.

The city of Glasgow, in Howard county, Mo., was incorporated under a special act of the Missouri Legislature, approved February 27, 1845, and its original charter provisions will be found in the Acts of 1844-45, at page 141 and following. It is conceded that the land in controversy was not included within the boundaries of Glasgow, by the terms of the special charter of 1845 supra. The Legislature, by a special act, approved January 31, 1853, reported in the Acts of 1852-53, at pages 251-252, amended the act of 1845, so as to include within the boundaries of Glasgow the land in controversy. Section 1 of the amendatory act describes the boundaries of said city and need not be set out here. Sections 2, 3, and 4 of same read as follows:

"Sec. 2. The mayor and councilmen of the city of Glasgow are hereby authorized and empowered to do all acts and things, and to have the same jurisdiction within the limits hereby established, that were conferred by the act of incorporation to which this is amendatory, except as hereinafter provided.

"Sec. 3. The mayor and councilmen shall not have the power to levy and collect taxes on any real estate unless the same is laid off into lots, or may hereafter [be] laid off into lots; and no taxes shall be levied or collected on any personal property situated upon any real estate not laid off into lots within the above limits.

"Sec. 4. Not less than one-half of the amount of taxes levied and collected from the new limits incorporated within said city, shall be expended in improvement of the new limits.

"This act shall be in force from and after its passage."

It is conceded by counsel upon both sides—and properly so—that when the act of 1845, as well as that of 1853, supra, were passed, there was no provision in our Constitution, as it then stood, which forbade the Legislature from passing said acts, or either of them, nor from exempting defendant's land aforesaid from taxation, as provided in the act of 1853. On the other hand, without the consent of defendant, the Legislature, in 1853, if it had seen fit to do so, could have included defendant's property within the boundaries of Glasgow, and have subjected the same to the payment of city taxes like those sued for in this suit. There was no contractual obligation upon the part of the General Assembly to exempt defendant's property in said city from taxation, at the time of the passage of the amendatory act of 1853. Nor was there any express or implied agreement upon the part of the Legislature to refrain from repealing, amending, or otherwise changing said acts or either of them, in the future, so that defendant's property might be subjected to the payment of city taxes. The Constitution of 1820 was in operation when both the above acts were passed. It contained no language or provisions which precluded the General Assembly of this state from repealing, amending, or changing said laws by appropriate future legislation. In the absence of any constitutional provision to the contrary, the Legislature was vested with the inherent power to repeal the exemption of 1853 supra, by permitting the inhabitants of the city of Glasgow, as shown by the record, to become a city of the fourth class, and to be governed thereafter by the provisions of same. City of St. Louis v. Russell, 9 Mo. loc. cit. 511, 512; Walden v. Dudley, 49 Mo. loc. cit. 422; Giboney v. City of Cape Girardeau, 58 Mo. 141; State ex rel. v. McReynolds et al., 61...