State v. Marion County Court

• Decision Date: 12 March 1895
• Parties: STATE ex rel. DICKASON et al. v. MARION COUNTY COURT et al.
• Court: Missouri Supreme Court

30 S.W. 103

128 Mo. 427

STATE ex rel. DICKASON et al. v. MARION COUNTY COURT et al.

Supreme Court of Missouri, Division No. 1.

March 12, 1895.

LICENSE TAX ON SALOONS — APPLICATION OF PROCEEDS — PAYMENT OF TOWNSHIP INDEBTEDNESS — CONSTITUTIONALITY OF ACT.

1. The court will take judicial notice of the last official United States census to determine the population of a county.

2. Bonds issued by a township funding railroad-aid bonds are "township indebtedness," within the meaning of Rev. St. 1889, § 4575, providing for the application of a portion of the license tax on saloons, in a township which has compromised its indebtedness, in payment of the township indebtedness.

3. It is sufficient to entitle an amendatory act "An act to amend" certain sections of an authorized version of the statutes, without any other description of the subject of the amending act. State v. Ransom, 73 Mo. 80, followed.

4. The title "Of Dramshops" is broad enough to cover a provision as to the application of funds arising from license taxes on saloons.

5. Rev. St. 1889, § 4575, providing for a certain application of the proceeds of license taxes on saloons, in counties having a stated population or less, is not special legislation.

6. Rev. St. 1889, § 4575, authorizing the county court to levy a certain license tax on saloons "for county purposes," and providing that in certain townships a certain proportion of the funds so raised shall be used to pay the "township indebtedness," is not unconstitutional, as diverting the county revenue for township purposes, as such funds are vested in the county only as governmental agent for the township.

7. Such act is not in violation of Const. art. 4, § 45, as a pledging of the state's credit in aid of a municipality.

8. Nor does such act violate Const. art. 12, § 19, which forbids any law for the benefit of any corporation or individual "retrospective in its operation or which shall impose on the people of any county or municipal division of the state a new liability in respect to transactions already past."

9. Nor is such act unconstitutional as a violation of the obligation of contracts.

Appeal from court of common pleas, Hannibal county; Reuben F. Roy, Judge.

Application by the state upon the relation of taxpayers of the city of Hannibal, Marion county, against the county court of Marion county and others, for a writ of mandamus to compel defendants to apply funds in the treasury to the payment of certain debts. From a judgment awarding the writ, defendants appeal. Affirmed.

H. C. Heather, W. M. Boulware, and T. H. Bacon, for appellants. G. A. Mahan and F. L. Schofield, for respondents.

BARCLAY, J.

This is an appeal from a judgment of the court of common pleas of Hannibal awarding a mandamus to the judges of the county court of Marion county. The real issue involved is as to the constitutionality of a certain statute, quoted later. It is unnecessary to go into the particulars of the formal proceedings, except very shortly. The relators are citizens, taxpayers, and owners of real property in the city of Hannibal, in Mason township, Marion county. The defendants are the county court of the county and its judges. The object of the writ is to require defendants, as the county court, to apply particular funds in the treasury of the county towards the payment of certain indebtedness, chargeable upon Marion township, in the form of bonds, issued in 1883, in compromise of earlier alleged obligations (incurred in 1869), upon a subscription to the capital stock of the Hannibal & Central Missouri Railroad Company. The fund sought to be thus applied (over $7,000 in amount) is the two-thirds part of the dramshop license tax collected by the county court upon licenses to dramshop keepers in Mason township for the period of six months, ending July 4, 1893. The relators depend upon the terms of the proviso contained in section 4575, Rev. St. 1889. The defendants insist that the proviso is in conflict with the organic law, and hence they have declined to obey it. Thus the issue is made up. We shall deal with the substance of it, making no further reference to the pleadings by which it is developed than to mention that the trial court sustained a demurrer to defendants' return to the alternative writ, and, upon their refusal to plead further, the writ was made peremptory. The defendants then appealed, after taking the formal steps for a review.

The section wherein the proviso in question appears in the Revised Statutes of 1889 has been since amended (Laws 1891, p. 129, § 7; Laws 1893, p. 151, § 7), but the proviso has remained unchanged. So, for our own present purposes, we refer to the section as contained in the last general statutes, viz.:

"Sec. 4575. License Tax. Upon every such license there shall be levied a tax not less than twenty-five nor more than two hundred dollars for state purposes, not less than two hundred and fifty nor more than four hundred dollars for county purposes, for every period of six months, the amount of tax in every instance to be determined by the court granting the license. It shall be the duty of the county courts of the several counties of this state to cause one-half of all the revenue for county purposes, derived from the tax on dramshop licenses, to be set apart as a special road fund of such county, and cause the same to be divided among the various road districts in the county, in proportion to the number of miles of public road in each district. Said fund shall be expended on the main lines of road in each district, which lead to the most important towns in the county, in proportion to the public utility of such roads, and shall be expended under the supervision of the road overseer of each district, or some one appointed by the county court for that purpose, who shall be a resident taxpayer of the district, and shall give a like bond and shall receive the same per diem for his services as the road overseer of the district: provided, that in counties having fifty thousand inhabitants or less, where such license tax is derived from saloons situated in any township that is indebted, and that have compromised or that may hereafter compromise their indebtedness, then two-thirds of the county tax so derived from said saloons shall be applied by the county court to the payment of the interest and principal of such township indebtedness until such debt is fully paid." Rev. St. 1879, § 5441; amended, Laws 1883, p. 87; amended, Laws 1887, pp. 178, 179.

Under repeated rulings of the supreme court, it should be considered settled that judicial notice will be taken of the last published official census of the United States, for the purpose of determining the population of cities of Missouri. The trial court was therefore right in this case in ruling that Marion county came within the class of counties mentioned in the proviso, for the last United States census shows, and all parties to the cause concede, that the inhabitants of that county do not exceed 50,000 in number.

1. The first objection is that the proviso does not apply to any railroad-aid bonds, or authorize the application of funds, raised from dramshop licenses, towards the discharge of any indebtedness evidenced by such bonds. We shall not attempt to fully state the defendants' contention on this point, but will merely announce our view of it. The township of Mason is not an organized township. It is only a territorial subdivision of the county. Yet, under the positive law of Missouri, particularly under the statutes (Rev. St. 1889, § 835 and following), authorizing compromises of township obligations incurred, or claimed to have been incurred, under former laws, it is very clear that funding bonds issued to perfect those compromises were regarded by the lawmakers as township indebtedness. Strictly speaking, such indebtedness, in its origin, was merely a charge upon the property in the township. The township constituted a sort of benefit district, to which the indebtedness attached by operation of law. Whether the original steps which gave rise to the liability of the township in question were valid or not we need not inquire, since the compromise issue of bonds, on the conceded facts, is a legitimate charge against the township property, under the decision rendered by Judge Black for the court in State v. Hannibal & St. J. R. Co. (1889) 101 Mo. 136, 13 S. W. 505. The words of the proviso under review are to be read in their plain, or ordinary and usual, meaning. Rev. St. 1889, § 6570. In the plain and ordinary sense, no less than in the sense plainly implied by the terms of the statute touching compromises of old bonds, "township indebtedness," when used with such context as here appears, should be held to include the obligations for which the township property is chargeable under the funding act. Id. § 835.

2. The next objection is that section 4575 cannot be made to apply to existing indebtedness, under the plain command of the constitution forbidding legislation retrospective in its operation. Const. art. 2, § 15. The effect of the proviso itself is not retrospective. It provides for the collection of a license tax on dramshops from the time of its enactment. It authorizes the creation of a fund to be applied to certain township indebtedness, but it does not impair any existing vested rights, as will be shown more clearly further on. The particular phrase of the constitution invoked on this point is not new in the present organic law. It formed a part of the constitution of 1820 (article 13, § 17), and was construed adversely to the contention of the appellants in State v. St. Louis County Court (1864) 34 Mo. 546. Since that construction the constitution has been twice revised, and in each instance the same language on this point has been retained. It is hence our duty to hold that the construction given by the court was re-enacted with the old language, unless there is something in other...