State v. Missouri Pac. Ry. Co.

• Decision Date: 01 April 1887
• Citation: 92 Mo. 137,6 S.W. 862
• Parties: STATE ex rel. BROWN, Collector, v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

6 S.W. 862

92 Mo. 137

STATE ex rel. BROWN, Collector, v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

April Term, 1887.

1. RAILROAD COMPANIES — TAXATION — RATE OF LEVY.

Under Act Mo. March 15, 1875, relating to taxing railroads, in levying such a tax the same rate must be applied as to the general property of individuals.

2. SAME — POWER OF COUNTY COURT.

A county court cannot levy taxes on railroad property to pay interest on railroad bonds, except according to the provisions of Rev. St. Mo. § 6799, requiring an order from the circuit court authorizing the levy, made upon proper application.

3. SAME — CONSTITUTIONAL LAW — EQUAL AND UNIFORM TAXATION.

Rev. St. Mo. § 6880, regulating the levying of taxes on railroad property by ascertaining from the returns in the office of the county clerk, the average rate levied for school purposes by the local boards, and charging to the railroad taxes at such average rate on the proportionate value of the railroad property certified to the clerk by the state, is not in conflict with article 10, § 11, of the state constitution, limiting the rate of taxation for school purposes, or with the fourteenth amendment to the constitution of the United States.

4. SAME — TAXES PAID UNDER ILLEGAL LEVY — CREDITS ON LEGAL LEVY.

Where the levy for taxes by the county court on the property of defendant railroad was illegal, because made at a different rate from that applied to the property of individuals, but such taxes were paid, such payment should be allowed defendant as a credit in an action against it under a new levy made on its property under a later act.

5. SAME — STATUTES — REPEAL.

Act Mo. 1878, p. 65, § 12, (Rev. St. § 6880,) relating to the taxation of railroads, is not repealed by the act of 1875, p. 119, amending certain sections of the former act, not including said section 12, either expressly or by necessary implication; there being no irreconcilable conflict between the two.

Appeal from circuit court, Pettis county; JOHN P. STROTHER, Judge.

Action by the state, at the relation of Brown, collector, against the Missouri Pacific Railway Company, to collect an alleged balance of taxes due from defendant for certain years. There was judgment for plaintiff below, and defendant appeals.

T. J. Portis and T. G. Portis, for appellant. George P. B. Jackson, for respondent.

NORTON, C. J.

This suit was brought to recover an alleged balance of taxes due from defendant for the years 1876, 1877, 1878, and 1879. Plaintiff obtained judgment in the circuit court, from which defendant has appealed. It appears from the record before us that the property of defendant, on the first day of August, 1875, was assessed in May, 1876, by the state board of equalization, in pursuance of section 7, Acts 1875, p. 121; that, after the completion of the work by the board, the state auditor certified its action to the clerk of the county court of Pettis county, setting forth the description, valuation, and location of all of defendant's railroad property in said county as assessed, equalized, and apportioned by said board to said county, and the various townships, cities, and incorporated towns therein, and the amount of taxes due the state upon such property in said county. It further appears that the county court, in levying taxes upon the property thus assessed, and its value as ascertained by the state board, levied the rate of taxes which had been levied on general property owned by individuals on the first day of August, 1874, instead of the rate levied upon property owned by individuals on the first day of August, 1875.

This was an erroneous levy, under the ruling of this court in the case of State v. Trust Co., 68 Mo. 463, where it held that the tax year extends from the first day of August in one year to the first day of August in the ensuing year; and that in levying taxes on railroad property the same rate must be applied to it as is applied to general property. Under the revenue law as it stood in 1875, it is made the duty of the county assessor, between the first day of August in each year and the first day of January, to assess for taxation property owned by individuals on the first day of August of each year, and return his assessment to the county court by the twentieth of January; whose duty it is to meet in April thereafter, and equalize the valuation of the property, and, as soon as may be, fix and levy the rate of taxes thereon. The taxes thus levied are required to be paid by the thirty-first of December of the year in which they are levied, so that, as to the individual property owned on the first day of August, 1875, and assessed for taxation, the tax, when imposed, is for the year 1876. While the county court of Pettis county pursued the law in levying taxes on individual property owned on the first day of August, 1875, it failed to do so in levying taxes on the railroad property owned by the defendant on the first day of August, 1875, but levied taxes thereon at the rate which it had levied on general property owned on the first day of August, 1874. Notwithstanding this illegal levy, defendant paid the tax thus imposed. To correct the mistake thus made, the county court, in 1879, by virtue of section 2, Acts 1879, p. 175, treated the levy thus made as a nullity, and levied upon the property owned by defendant the same rate which it had levied on property owned by individuals on the first day of August, 1875, thus making it the tax for 1876; and it is for an alleged balance of this tax due by defendant for which plaintiff sues in the first count of the petition. It further appears that on the assessment made by the state board in 1877 of the property owned by defendant on the first day of August, 1876, the county court, instead of levying the same rate of taxes which it had levied on individual property owned on the first day of August, 1876, levied the rate which had been levied on individual property owned on the first day of August, 1875. The taxes thus levied were paid by defendant, and in the receipt given were designated as the taxes of 1876, when, under the ruling of this court in the case of State v. Trust Co., supra, if the proper rate had been levied, the tax should have been designated as the tax of 1877, and not that of 1876. In 1879 the county court, to correct the mistake, treated said levy as a nullity, and levied upon the property of defendant owned on the first day of August, 1876, the same rate of taxes which it had levied on property owned by individuals on the first day of August, 1876; and it is for the recovery of an alleged balance of their tax for which plaintiff sues in the second count of the petition. It further appears that, on the assessment made by the state board of equalization in 1878 of the property owned by defendant on the first day of August, 1877, the county court levied thereon, for the taxes of 1878, the same rate which had been levied on other property for the year of 1878; and it is for the whole of the taxes thus levied for which plaintiff sues in the third count of his petition. It further appears that on the assessment made by the state board in 1879 of the property of defendant owned on the first day of August, 1878, the county court levied a tax for the year 1879; and it is for an alleged balance due by defendant on this tax for which plaintiff sues in the fourth count of the petition. It appears from the record before us that defendant paid taxes on the property owned by it on the first day of August, 1875, not at the rate imposed upon general property owned by individuals on the first day of August, 1875, but at the rate levied on property owned by individuals on the first day of August, 1874. While the tax paid by individuals on property owned by them on the first day of August was called, and properly called, the "tax for 1876," the tax paid by defendant on property owned by it on the first day of August, 1875, was improperly called the "tax of 1875."

One of the controlling questions arising on this state of facts is whether the tax paid by defendant on the improper levy made by the county court on the property owned by defendant the first day of August, 1875, should be applied as a credit on the tax levied by the county court on defendant's property owned by it on the first of August, 1875, and which is sued for in the first count of plaintiff's petition. It is contended by defendant that it should be so applied, inasmuch as, under the ruling of this court in the case of State v. Trust Co., supra, the property owned by defendant on the first...