State v. Missouri Pac. Ry. Co.

• Decision Date: 30 December 1918
• Citation: 208 S.W. 41,276 Mo. 441
• Parties: STATE ex rel. MASER, Revenue Collector, v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

208 S.W. 41

276 Mo. 441

STATE ex rel. MASER, Revenue Collector, v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 30, 1918.

Appeal from Circuit Court, Cole County; G. Slate, judge.

Action by the State, on the relation of A. E. Blaser, Collector of Revenue of Cole County, Mo., against the Missouri Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded. This action was commenced in the circuit court of Cole county, Mo., on May 21, 1915, by the state, at the relation of A. E. Blaser, collector of the revenue of Cole county, Mo., to collect from defendant $17.07 of back taxes alleged to be due for the year ending June 1, 1913.

It appears from the record that the assessed valuation of Cole county for the years 1912 and 1913 was over $6,000,000 and under $10,000,000. By virtue of section 11 of article 10 of the Constitution of 1875 of Missouri, the county court of said county was authorized to levy, and did levy, 40 cents on the $100 assessed valuation of property in said county for county purposes. The county court of said county, in making said levy, entered of record the following order:

"Ordered by the court that a tax be, and the same is hereby, levied upon the assessed valuation of railroad, telegraph, telephone, and bridge companies in Cole county, Mo., for 1913, as follows: "State Rev. 15c. State Int. 2c. State Cap 2c. Total, 19c. on the $100.00 assessed valuation. County Rev. for current expenses 40c. Inst. 5c. Sinking Fund 5c. Total 50c. on the $100.00 assessed valuation. Special road and bridge tax under constitutional amendment, 25c. on the $100.00 assessed valuation.

                            "I. D. Bond, Presiding Judge."
                

At the trial it was stipulated and agreed that $17.07, the amount of the taxes sued for, exclusive of penalty, interest, fees, and costs, was equal to the amount of taxes produced by a levy of 10 cents on the $100 assessed valuation of the railroad property of the defendant for 1913 in the towns of Russellville, Centertown, and Lohman, and that said towns were incorporated in Cole county, Mo., and were not in any special road district.

The contention of respondent was, and is, that the above levy was not authorized by law; that the statutes of Missouri required a levy of at least 10 cents on the $100 valuation for road district purposes on all property outside of incorporated cities, towns, and villages in any special road district; that Cole county could levy, for county purposes, only 30 cents on the $100 valuation on respondent's property in Russellville, Centertown, and Lohman; and that the respondent company did not, therefore, owe the $17.07 which represented the difference between the amount produced by a 40-cent levy and the amount produced by a 30-cent levy on defendant's railroad property in said towns.

Appellant, by the reply and by declarations of law, attacked the constitutionality of section 10481, Rev. St. 1909, as amended by an act of the General Assembly approved March 25, 1913 (Laws 1913, pp. 667, 668).

At the trial appellant offered to show by the county clerk, deputy clerk, and presiding judge of the county court of said county, as well as by the records thereof, that a levy of 30 cents on the $100 valuation for county purposes for the year 1913 would not have produced a sufficient amount of taxes to pay the actual running expenses of said county. Counsel for respondent admitted the testimony of said witnesses to be as offered by appellant, and that the records of said county would show the same thing.

It is conceded that defendant paid all of its taxes, except that sued for in this action. Respondent offered no evidence.

The judgment of the lower court was for respondent, and appellant, after motions for a new trial and in arrest of judgment were filed and overruled, appealed to this court.

D. F. Calfee and H. J. Westhues, both of Jefferson City, for appellant.

Roy D. Williams, of Boonville, for respondent.

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

I. There appears to be no controversy over the facts in this case. The county court of Cole county, by an order entered of record, levied for county purposes 40 cents on the $100 for 1912 and 1913. As the assessed value of the property in said county was more than $9,000,000 and less than $10,000,000, the levy was made for the maximum amount authorized by section 11 of article 10 of our Constitution. In addition to the levy for state purposes, there was levied under the constitutional amendment of 1908 25 cents on the $100 assessed valuation as a special road and bridge tax.

Respondent relies upon the act of 1913, at pages 667 and 668, which provides that:

"The county court in the several counties of this state, at the May term thereof in each year, shall levy upon all real and personal property made taxable by law, outside of incorporated cities, towns and villages, a tax of not more than twenty cents, nor less than ten cents, on the one hundred dollars valuation as a road tax, which levy shall be collected and paid by the, collector into the county treasury as other revenue, and the county treasurer shall place the same to the credit of the road district from which said tax was collected, and pay the same to the overseer of said district on the warrants of the county court. * * *"

Sector. 10481 of Rev. St. 1909, of which the above act is amendatory, did not require a levy of at least 10 cents on the $100 valuation.

The validity of the above act of 1913 is assailed on the ground that its enforcement would not leave the county with sufficient revenue to meet its current expenses on a 30-cent levy.

We have heretofore held that tie road tax contemplated by said section 10481 and the amendatory act of 1913 are considered a part of the county funds, and hence must be governed by the provisions of section 11 of article 10 of our Constitution, limiting the rate in this case to 40 cents on the $100 assessed valuation of property in said county. State ex rel. v. Railroad, 270 Mo. loc. cit. 261, 192 S. W. 990; State ex rel. Love v. Hannibal & St. J. By. Co., 101 Mo. 120, 13 S. W. 406. Leaving out of consideration the act of 1913, supra, and considering the situation under section 10481, as unamended, it is clear that the county court might have made a nominal levy for road purposes, under said section, and could have furnished funds out of the 25-cent levy for road purposes under the constitutional amendment of 1908 (see section 10482, Rev. St. 1909, as amended by Acts 1913, pp. 669, 670) to supply the deficiency, if necessary. If, therefore, the act of 1913 (pages 667 and 668) be considered unconstitutional it necessarily follows from the foregoing that relator would be entitled to recover in this action.

II. Is the relator entitled to maintain this action, regardless of the constitutionality of the act of 1913, supra? The county court levied the full 40-cent limit in this case. If it had set apart...