State v. Shipman

• Decision Date: 08 July 1921
• Docket Number: No. 22,523.,22,523.
• Citation: State v. Shipman, 234 S.W. 60, 290 Mo. 65 (Mo. 1921)
• Parties: STATE ex rel. TOMPKINS v. SHIPMAN.
• Court: Missouri Supreme Court

234 S.W. 60

290 Mo. 65

STATE ex rel. TOMPKINS v.SHIPMAN.

No. 22,523.

Supreme Court of Missouri, in Banc.

July 8, 1921.

Motion for Rehearing Overruled October 8, 1921.

Application by the State of.Missouri, on the relation of W. M. Tompkins for a writ of mandamus against Aubrey Shipman.On motion for judgment on the pleadings.Writ of mandamus denied.

W. V. Draffen, of Boonville, for relator.

Dorsey W. Shackleford, of Jefferson.Henry W. Chalfant, of Linn Creek, and Barney Reed, of Ulman, for respondent,

GRAVES, J.

Original action in mandamus.The petition, by stipulation, was taken as and for our alternative writ, and return was duly made thereto.Relator moved for judgment on the pleadings.The cause was then taken as submitted on briefs to be filed later.Thereafter some friends of court were permitted to file briefs.The petition succinctly states most of foe facts, and reads:

"To the Honorable Judges of said Court:

"The petition of W. M. Tompkins respectively represents that one Aubrey Shipman is now, and was at all the times mentioned in this petition, the duly elected, qualified, and acting recorder of deeds within and for the county of Camden, in the state of Missouri; that this petitioner does now, and did at all the times mentioned in this petition, reside it said county of Camden, in the state of Missouri.

"That on the 30th day of April, 1921, one John M. Cooper did sign, seal, and deliver unto this petitioner his bond and obligation for the payment of money, to wit, fifty dollars ($50), with interest thereon at the rate of 8 per cent. per annum from the date thereof, which bond and obligation for the payment of money, by its terms, is not payable within one year from the date of issue thereof, and the payment thereof is not and was not secured by the deposit or pledge of any collateral security, nor by a mortgage or deed of trust wholly or in part upon real estate; that on the 2d day of May, 1921, this petitioner took said bond to the office of the recorder of deeds of said county of Camden, in the state of Missouri, and offerred to pay to the said Aubrey Shipman, an such recorder of deeds for said county, for the account of the general revenue fund of the state, a tax at the rate of 10 cents on each $100 or fraction thereof of the face value of said bond and obligation for the payment of money, to wit, the sum of 10 cents, and demanded that the said Shipman, as such recorder of deeds, accept said sum and affix stamps of the proper denominations equal in face value to the amount of the tax on said bond and obligation for the payment of money, to wit, the sum of 10. cents, and further demanded that said Shipman, as such recorder of deeds, cancel said stamp or stamps.

"Your petitioner further states that notwithstanding said tender and demands by this petitioner, the said Shipman, as such recorder of deeds, refused to receive said sum and to affix and cancel the said stamps, and stated that he would continue to so refuse.Petitioner further states that unless and until petitioner shall have paid the above-mentioned tax he is liable to and will be compelled to pay in lieu thereof a tax under the general revenue laws of this state in a sum far greater than the amount of the tax above mentioned.

"Petitioner further states that he it remediless in the premises by or through ordinary process or proceedings at law, and he therefore prays this honorable court to award against said Aubrey Shipman, as such recorder of deeds of the county of Camden, in the state of Missouri, a writ of mandamus, commanding and requiring him to accept payment of said tax, and to affix to said bond and obligation for the payment of money said stamps, and to cancel said stamps, in accordance with the provisions of article 119, chapter 20,Revised Statutes of the state of Missouri 1919; and for such other process, orders, and remedies as to the court may seem meet and proper."

The return admits that all the facts stated in the petition are true, but adds the following material facts:

"That the relator at all times mentioned in his petition was, and now is, a resident of the village of Linn Creek, in the county of Camden and state of Missouri:

"That the rates of taxes authorized by law now levied upon real and personal property in said village of Linn Creek aggregate $2.43 on each $100 valuation;

"That a `secured debt,' as defined in article 20, chapter 119, of the Revised Statutes of 1919, of the state of Missouri, which matures a greater length of time after payment of taxes thereon, under said article 20, is not of less value than another `secured debt' of the same amount and like character in every respect, except that it matures in a short time after the payment of taxes thereon under said article 20."

The return then attacks from many angles the constitutionality of the "(Secured Debt Tax Law" upon which relator relies for his cause of action.Such of these attacks as are deemed pertinent will be noticed in the course of the opinion.By filing motion for judgment on the pleadings, relator admits all well-pleaded facts in the return, and hence the inclusion of those facts, supra.This outlines the case.

I.The statute before us in this case is article 20, chapter 119, R. S. 1919.This is the act of 1917(Session Laws of 1917, p. 539).By it the General Assembly undertook to select the following three subdivisions of property, and place them into a class for taxation, viz.:

"(1) Any and all bonds, notes, debentures or obligations for the payment of money, whether forming a part of a series or otherwise, which are secured by collateral security deposited with a trustee under a deed of trust or collateral agreement to secure the payment of, such bonds, notes, debentures or obligations.

"(2) Any and all bonds, debentures or similar obligations for the payment of money, whether forming part of a series or otherwise, which by their terms are not payable within one year from their date of issue, and the payment of which is not secured by the deposit or pledge of any collateral security, nor by a mortgage or deed of trust, wholly or in part, upon real estate.

"(3) Any and all bonds, notes, debentures, or obligations for the payment of money, whether forming a part of a series or otherwise issued by any state or political subdivision thereof.

"Securities as thus defined, shall constitute a separate and distinct class of property for purposes of taxation."

The bond upon which relator in this case sought to pay the tax falls within the second subdivision, supra.The suit must be governed by the act of 1917, because the amendments made to article 20 of chapter 119, R. S. 1919, in 1921(Laws 1921, p. 667), were not in force at the institution of the suit.Respondent's refusal to act must be justified, if at all, by the law then in force, so that we shall construe the act of 1917, and none other.Respondent says this act is unconstitutional, and thus justifies his action.After taking these three subdivisions of property, and putting them in a single class for the purposes of taxation, the General Assembly fixed the following tax rates:

"After this article takes effect any person may take or send to the office of the recorder of deeds of the county in which he resides any secured debt and may pay to the said recorder for the account of the general revenue fund of the state a tax at the rate of 5c on each $100 or fraction thereof of the face value of such secured debt which shall mature not more than one year from the date of the payment of such tax; a tax at the rate of 100 on each $100 or fraction thereof of the face value of such secured debt which shall mature more than one year and not more than two years after the payment of such tax; a tax at the rate of 15c on each $109 or fraction thereof of the face value of such secured debt which shall mature more than two and not more than three years after the payment of such tax; a tax at the rate of 20c on each $100 or fraction thereof of the face value of such secured debt which shall mature more than three years and not more than four years after the payment of such tax; a tax at the rate of 25c on each $100 or fraction thereof of the face value of such secured debt which shall mature more than four years after the payment of such tax.Any contract or agreement, by which the time of the payment of any such indebtedness shall be extended or deferred, shall be deemed to be a secured debt for the purpose of this act, and shall be taxed as such upon the amount for which the extension of the time of payment is granted at the rates hereinbefore specified for the period of such extension.In addition to the tax above provided for the account of the general revenue fund of the state, each county in the state and the city of St. Louis, as a county, may levy for the account of the general revenue fund of the county and for the account of special funds, distributed in such manner as the county court may determine, a like tax on secured debts owned by residents of the county, the total of which shall in no event exceed for all purposes the amount herein provided to be levied for the account of the general revenue fund of the state.The cities and incorporated towns of the state may in addition to the tax herein provided to be levied fat, the account of the general revenue fund of the state and the tax authorized by the counties (of the state, levy a further tax on secured debts owned by residents of the city or incorporated town, for the account of the general revenue fund of the cities and incorporated towns and for the account of special funds, distributed as the levying authorities of the cities and incorporated towns may direct, which tax by cities and incorporated towns shall in no event for all purposes exceed the rate herein provided to be levied for the account of the general revenue fund of the state.After the payment of the tax, levied and authorized by this act,...