State v. Pemiscot Land & Cooperage Co.

• Decision Date: 23 May 1927
• Docket Number: No. 27378.,27378.
• Citation: 295 S.W. 78
• Court: Missouri Supreme Court
• Parties: STATE ex rel. and to Use of KERSEY, Collector of Revenue, v. PEMISCOT LAND & COOPERAGE CO.

295 S.W. 78

STATE ex rel. and to Use of KERSEY, Collector of Revenue, v. PEMISCOT LAND & COOPERAGE CO.

No. 27378.

Supreme Court of Missouri, in Banc.

May 23, 1927.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Suit by the State, at the relation and to the use of A. Parker Kersey, Collector of the Revenue in and for Pemiscot County, against the Pemiscot Land & Cooperage Company, a corporation. Judgment for the defendant on the pleadings, and plaintiff appeals. Reversed and remanded, with directions.

S. V. Medling and Von Mayes, both of Caruthersville, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

GANTT, J.

This is a suit by the collector of Pemiscot county to recover taxes on personal property belonging to defendant for county purposes for the year 1925. Defendant filed a motion for judgment on the pleadings, which was sustained, and plaintiff appealed. The facts are set forth in the pleadings, as follows:

The assessed valuation of all taxable property in Pemiscot county was over $10,000,000 and under $30,000,000; and by reason thereof section 11 of article 10 of the Constitution of Missouri limits the rate of taxation for general county purposes to 50 cents on the $100 valuation, and section 22 of article 10 of the Constitution of Missouri limits the rate of taxation for the special tax for road and bridge purposes to 25 cents on the $100 valuation on the taxable property in said county for said year. The county, through its proper officers and in a lawful manner as to processes, levied taxes for the years 1922, 1923, 1924, and 1925 with rates on the $100 valuation as follows:

                 1922. County tax ....................... 20 cents
                    Road district tax ................ 6 cents
                    Special road and bridge tax....... 10 cents
                which produced, mathematically, the sum
                  of $85,144.65
                 1923. County tax......................... 22 cents
                    Road district tax.................. 5 cents
                    Special road and bridge tax........ 15 cents
                    Judgment tax....................... 3 cents
                which produced, mathematically, the sum
                  of $108,405.42
                 1924. County tax......................... 23 cents
                    Special road and bridge tax........ 25 cents
                    Judgment tax....................... 10 cents
                which produced, mathematically, the sum
                  of $133,167.97
                 1925. County tax........................ 37 cents
                     Road district tax................. 10 cents
                     Special road and bridge tax....... 25 cents
                which produced, mathematically, the sum
                  of $164,090.73
                

The above tax levies include all taxes levied in those years for all county purposes, including the judgment tax levied in the years 1923 and 1924. Of course, taxes were levied for state and school purposes.

Respondent, in its answer, pleads the following provision in the act of 1921 (Laws of Missouri 1921, p. 678), now act of 1923 (Laws of Missouri, p. 374):

"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 year."

Appellant, in the reply, pleads that the above provision of said act is in conflict with section 22 of article 10 of the Constitution of Missouri, and that said provision of said act is unconstitutional in so far as it may have been intended by the Legislature to relate to the special road and bridge tax authorized by section 22 of article 10 of the Constitution. Therefore appellant contends the county court, in complying with the above provision of said statute could lawfully exclude the taxes realized by the levy made under section 22 of article 10 of the Constitution.

In the case of State ex rel. v. Railroad, 310 Mo. 587, 275 S. W. 932, we held the above provision of said act is not in conflict with section 22 of article 10 of the Constitution, and that said provision of said act is only "regulatory as to the manner in which the discretion of county courts (granted in section 22 of article 10 of the Constitution) shall be exercised."

Appellant concedes that under this ruling at least 12 per cent. of the taxes levied for the year 1925 are illegal.

Respondent contends that 30.93 per cent. of the taxes levied for the year 1925 are illegal, although it asks for a reduction of only 30 per cent. This contention is explained as follows:

The court had the right to levy 10 per cent. more taxes for county purposes for the year 1923 than for the year 1922, or 110 per cent. of $85,144.65, which for the year 1923 would be $93,659.11; whereas, the court levied the sum of $108,405.45, amounting to an excess of $14,746.31 over the amount authorized by law to be levied. That the court had the right to levy 10 per cent. more taxes for county purposes for the year 1924 than for the year 1923, or 110 per cent, of $93,659.11, which for the year 1924 would be $103,025.02; whereas, the court levied the sum of $133,177.97, amounting to an excess of $30,142.95 over the amount authorized by law to be levied. That the court had the right to levy 10 per cent. more taxes for county purposes for the year 1925 than for the year 1924, or 110 per cent. of $103,025.02, which for the year 1925 would be $113,327.52; whereas, the court levied the sum of $164,090.73, amounting to an excess of $50,763.21 over the amount authorized by law to be levied.

Therefore respondent contends the levy for county purposes was an illegal levy to the extent of 45.88 per cent., and the amount of the percentage to be deducted from the taxes for county purposes for 1925 is 30.93 per cent.

The assessed valuation of respondent's personal property was $5,750, and it was taxed on said assessment the sum of $41.41. Respondent paid all the taxes demanded of it by appellant except 30 per cent. of $41.41, amounting to $12.41, which it refused to pay; and this, with the interest and penalties, if any, is the amount involved in this case.

Respondent voluntarily paid its taxes for 1923 and 1924, and appellant contends a reduction of 30 per cent. on the amount realized from the levy for 1925 would permit respondent to indirectly recover taxes it had voluntarily paid.

Respondent answers that it is not seeking to recover taxes voluntarily paid, but is seeking to reduce the taxes realized from the levy for 1925 by a reduction of 30 per cent., because the levy for 1925 is the result of progressive increases of 10 per cent., based upon the levy of 1922 and continuing through 1923 and 1924.

Appellant insists that we should reconsider our decision in the case of State ex rel. v. Railroad, supra.

In considering this constitutional question, we are not dealing with the power of the Legislature to regulate the disbursement of the funds for road purposes realized from the tax lavy authorized by section 22 of article 10 of the state Constitution. The Legislature has dealt with that question in the Laws of Missouri 1917, pp. 457, 458. In section 37 of article 2 of said Laws it is provided that all that part or portion of said tax which shall arise from and be collected and paid upon any property lying and being within any road district, shall be paid into the county treasury and placed to the credit of the special road district, from which it arose, and shall be paid out to the respective road districts upon warrants of the county court in favor of the commissioners, treasurer, or overseer of the district, as the case may be.

We have held that the Legislature may direct the disbursement of these funds without contravening section 22 of article 10 of the state Constitution. State ex rel. v. Burton, 266 Mo. 711, 182 S. W. 746.

Section 22 of article 10 of the state Constitution is as follows:

"Special Road and Bridge Tax. 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 discretionary power."

It will be noted that this section of the Constitution, in plain and simple language, provides, in addition to taxes authorized to be levied for county purposes (under section 11 of article 10, Const.), the county courts may levy and collect, as state and county taxes...