State v. Wabash R. Co.

• Decision Date: 17 October 1902
• Citation: 169 Mo. 563,70 S.W. 132
• Court: Missouri Supreme Court
• Parties: STATE ex rel. HILL, Revenue Collector, v. WABASH R. CO.

70 S.W. 132

169 Mo. 563

STATE ex rel. HILL, Revenue Collector, v. WABASH R. CO.

Supreme Court of Missouri, Division No. 2.

October 17, 1902.

TAXATION — CONSTITUTIONAL LIMITATION — SPECIAL TAX — ENFORCEMENT — PARTIES.

1. Where a county levied a tax to meet outstanding warrants, a bank, to which the tax and warrants had been assigned, was not the proper party to bring proceedings to enforce collection of the tax, under Rev. St. 1889, §§ 540, 541, requiring actions to be brought in the name of the real party in interest; as the statute requires that state and county taxes be sued for in the name of the state at the relation and to the use of the collector of the county.

2. Const. art. 10, § 11, limits the rate of taxation to 40 cents on the $100 in certain counties. Section 12 permits a larger tax for certain purposes on assent of two-thirds of the voters. Rev. St. 1899, § 9274, provides that, where a county desires to levy a tax for other than certain specified purposes, the county attorney shall present a petition to the circuit court, and that court, on being satisfied of the necessity for the tax, and that it will not be in conflict with the constitution, shall order the county court to assess the tax. Held, that a county could not proceed, under said section 9274, to levy and collect a tax in excess of that allowed by Const. art. 10, § 11, though the tax was to meet valid outstanding warrants, which the county could not pay because of the large amount of delinquency in the payment of prior valid taxes, the only authority given the county under such statute being to increase the tax levy to the constitutional limit where the tax levied did not come up to it.

Appeal from circuit court, Ray county; E. J. Broaddus, Judge.

Proceedings by the state, on the relation and to the use of Pres. E. Hill, county collector of revenue, against the Wabash Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action to enforce a tax lien against defendant's property in Ray county. The tax sued for was levied by the county court of that county under and in pursuance of an order of the circuit court of said county by authority of section 7654, Rev. St. 1889 (section 9274, Rev. St. 1899), and sections following. The petition is in two counts, the only difference in them being that the first count is for special taxes levied for the year 1896, amounting to $876.91, penalties, commissions, and attorney's fees, and the other for special taxes levied for the year 1897, amounting to $898.14, with penalties, commissions, and attorney's fees. Defendant answered, alleging the law under which the levies were made to be in violation of sections 3 and 11 of article 10 of the state constitution, and "that the pretended taxes sued for in said count of said petition, as well as the county warrants described therein, have been assigned to and are now held by one of the banks located in Ray county, Missouri, to wit, the Ray County Savings Bank; and that the plaintiff in this suit, as well as the county of Ray, in the state of Missouri, are not the proper parties in interest in this case, and are not the real parties in interest in this case, and that the plaintiffs herein have no interest in this controversy, as the pretended taxes here sued for have long since been paid to them by said Ray County Savings Bank." The cause was tried by the court upon an agreed statement of facts, which, leaving off the formal parts, reads as follows: "Now come the parties in the above-entitled cause by their attorneys, and agree to submit the above cause to the court for its determination thereof, and agree that the following are the facts upon which the same is to be decided: Pres. E. Hill is now, and was at the dates mentioned in each and both of the counts of the plaintiff's petition, the duly elected and legally qualified and acting collector of the revenue within and for Ray county, Mo. That said collector, with the approval of the county court of Ray county, has employed James L. Farris, Jr., to aid and assist the prosecuting attorney in conducting and managing this suit, as is provided in section 7746, Rev. St. 1889. That defendant is a railroad corporation duly organized and existing according to law, and that it now is, and at the dates mentioned in plaintiff's petition, and for a long time prior thereto, was, the owner of and had the control of a railroad extending from St. Louis, Mo., to Kansas City, Mo., and that it has, and at said dates had, railroad bed and property located in and running through Ray county, Mo., as described in plaintiff's petition. That said land and property were then and there subject to taxation for state, county, school, and other purposes. That on the 6th day of May, 1896, there were outstanding warrants drawn against the general revenue or contingent fund of Ray county, Mo., issued and protested prior to the 1st day of January, 1896, amounting to forty thousand dollars. That for the years 1892, 1893, 1894, 1895, 1896, 1897, and 1898 the assessed valuation of all property in Ray county, Mo., was more than six million dollars, and less than ten million dollars. That during all of said years there was assessed and levied for county purposes an annual rate on property in said county a tax of forty cents on the one hundred dollar valuation, which levies for each of said years were duly paid by the defendant; and that the proceeds of such levies were entirely exhausted in paying the ordinary, usual, and necessary expenses of the county. That the warrants above mentioned were issued and protested in the years 1893, 1894, and 1895 for services and material rendered and furnished said county that were necessary for its proper management and maintenance. That said warrants were issued within the limit of the revenues receivable for the years of their issues respectively; that is to say, that, had all of the taxes assessed and levied for those years been collected, the amount of such taxes, together with the other revenue and income actually paid into the county treasury for the benefit of the contingent fund, would have exceeded the amount of warrants issued for said years, but that the full amount of said taxes were not so collected, but a portion each year returned delinquent, to such an extent that there remained at the end of each of the above fiscal years a surplus of unpaid and outstanding warrants. That on the 6th day of May, 1896, there were no funds on hand to pay said warrants with. That on the 6th day of May, 1896, the county court of Ray county, Missouri, made and entered of record an order, a true copy of which is set out at pages 5 and 6 of plaintiff's petition. [This was an order requesting the prosecuting attorney of the county to apply to the circuit court for an order authorizing the county court to make a specified levy on all property in the county for the purpose of raising sufficient revenue to pay the past indebtedness of the county.] That on the 20th day of May, 1896, during the session of the regular May term of the Ray circuit court, James L. Farris, Jr., the then prosecuting attorney of said county, in obedience to said order, presented a petition to the said circuit court, a copy of which, with the omission of the formal parts, is set out in plaintiff's petition; and that afterwards, to wit, on the 20th day of May, 1896, said circuit court took up said petition and statement, and, after hearing the evidence and duly considering the same, made and entered of record an order, as set forth at pages 10, 11, 12, and 13 of plaintiff's petition. [This was an order by the circuit court to the county court to levy and assess a special tax of 20 cents on the $100 valuation on all property, real, personal, and mixed, in Ray county, for the purpose of paying past indebtedness.] That on the ____ day of May, 1896, the clerk of the Ray circuit court duly certified a copy of the above order to the county court of Ray county, Mo., and that on the 6th day of June, 1896, at an adjourned term of said county court, and in obedience to said order of said circuit court, the said Ray county court levied and assessed a special tax of twenty cents on the one hundred dollars valuation on all property, real, personal, and mixed, in Ray county, Mo., and that said order is in words and figures as follows, to wit: `In the Ray County Court. Tuesday, June 2, 1896. Adjourned Term. In the matter of petition in the circuit court for power to assess, levy, and collect a tax to pay outstanding warrants or legal indebtedness of said county. In obedience to the order of said circuit court of Ray county directing the county court to levy and collect an additional tax of twenty cents on the one hundred dollars valuation, it is therefore ordered that there be and is hereby levied against all property, personal, real, and mixed, within Ray county, Missouri, a tax of twenty cents on the one hundred dollars valuation, based on the ownership of property June 1st, 1895, and as corrected and fixed by the state and county boards of equalization; and it is further ordered that the county clerk extend said tax in a suitable column in tax book.' That said clerk duly extended said tax on the tax book of said year. That by virtue of the above steps taxes were extended against the above property of the defendant for the fiscal year 1896 for the purposes as set forth in said orders, to wit, for the purposes of paying said outstanding warrants the sum of eight hundred and seventy-six dollars and ninety-one cents. And it is admitted that, if the plaintiff is entitled to recover at all, the amount due under the first count in said petition is eight hundred and seventy-six dollars ninety-one cents, and the penalties provided by law, as well as reasonable attorney's fee, as provided in section 7746, Rev. St. 1889; and that, if plaintiff is entitled to recover at all said judgment shall be as provided by statute. It is...