The St. Louis & San Francisco Railway Co. v. Gracy

• Decision Date: 05 February 1895
• Citation: 29 S.W. 579,126 Mo. 472
• Parties: The St. Louis & San Francisco Railway Company, Appellant, v. Gracy, Collector
• Court: Missouri Supreme Court

29 S.W. 579

126 Mo. 472

The St. Louis & San Francisco Railway Company, Appellant, v. Gracy, Collector

Supreme Court of Missouri, First Division

February 5, 1895

Appeal from Newton Circuit Court. -- Hon. Joseph Cravens, Judge.

Affirmed.

""Edward D. Kenna, L. F. Parker and ""H. S. Abbott for appellant.

(1) There was no order of the circuit court of Newton county authorizing the county court to assess, levy and collect the taxes for school building purposes attempted to be levied and assessed by the order of the county court dated August 4 1890. They are, therefore, absolutely void and illegal. By sections 7653 and 7654 of Revised Statutes, 1889, such order of the circuit court was necessary. A county court has no implied power to levy taxes. ""State ex rel. v Railroad, 83 Mo. 395; ""State ex rel. v. Railroad 87 Mo. 236; ""State ex rel. v. Shortridge, 56 Mo. 126; ""State ex rel. v. Railroad, 110 Mo. 265; ""State ex rel. v. Co., 92 Mo. 157; ""State ex rel. v. Hager, 91 Mo. 455; ""State ex rel. v. Railroad, 97 Mo. 296; Constitution, sec. 11, art. 10. (2) The rate of nine cents per $ 100 valuation for school building purposes, as attempted to be levied, was not obtained in the manner provided by section 7732, Revised Statutes, 1889, giving the county court authority for, and prescribing the manner of, levying a tax for such purposes. It is excessive, illegal and void. Neither were the estimates of the school board made out in compliance with section 8000, Revised Statutes, 1889. ""State ex rel. v. Railroad, 110 Mo. 265. (3) The order for the levy, assessment and collection of the taxes for 1890 was made August 4, 1890. By statute, the plaintiff's taxes were due and payable June 1, 1890. Sec. 7736, R. S. 1889. At that time there were no taxes levied against it and no liability. The plaintiff was entitled to all the time given by statute in which to pay its taxes.

""John T. Sturgis for respondent.

(1) The bill of exceptions in this cause was not filed in time, and is not part of the record. The bill itself recites that the plaintiff was allowed "until the sixteenth day of June, 1892," to file the same. The bill of exceptions must be accepted as an absolute verity. ""Christian v. Wight, 19 Mo.App. 165; ""Wells v. Lea, 20 Mo.App. 352; ""Crosby v. Clary, 43 Mo.App. 222; ""State v. Blunt, 110 Mo. 322. When time is granted "until the sixteenth," it is too late to file it on that day. ""Corbin v. Ketcham, 87 Ind. 139; ""Kendall v. Kingsley, 120 Mass. 95; ""Webster v. French, 12 Ill. 304; ""People v. Walker, 17 N.Y. 503; ""People v. Crissey, 91 N.Y. 631. The vacation order, extending the time to file bill of exceptions "until May 17," expired on May 16, and the second order, extending the time, made on May 17, is void. ""State v. Scott, 113 Mo. 559; ""State v. Mosley, 116 Mo. 545-547. And, if not void, would expire on the fifteenth of June. (2) No motion for new trial "is copied or set forth in the bill of exceptions filed in the lower court," nor does "the bill of exceptions so filed contain a direction to the clerk to copy the same." (R. S. 1889, sec. 2304.) It avails nothing that it is copied by the clerk into the transcript. ""McNeil v. Ins. Co., 30 Mo.App. 306; ""Story v. Ragsdale, 30 Mo.App. 196; ""State v. Griffin, 98 Mo. 672; ""Arnold v. Boyer, 108 Mo. 310; ""Jefferson City v. Opel, 67 Mo. 394; ""Perkins v. Bakrow, 39 Mo.App. 331; ""Donaldson v. Thompson, 25 S.W. 358; ""Kohn v. ""Lucas, 17 Mo.App. 31; ""Ins. Co. v. Hill, 12 Mo.App. 148. No error is assigned on the record proper and none will be considered, especially as no motion in arrest was filed. Cases cited ""supra. (3) Before an injunction to restrain the collection of taxes will be granted, equity requires that the taxes that are justly due must be paid. ""Johnson v. Duer, 115 Mo. 366; ""Arnold v. Hawkins, 95 Mo. 569; ""Dickhaus v. Olderhide, 22 Mo.App. 76; ""Bank v. Kimball, 103 U.S. 732. (4) Injunction waives all irregularities or informalities of assessment and levy. Only matters affecting the substantial justice of the tax itself or the very right to levy the tax in question will be considered. ""Railroad Tax Cases, 92 U.S. 575; ""Valle v. Zeigler, 84 Mo. 214, 217; ""Myer v. Rosenblatt, 78 Mo. 496; High on Injunctions, sec. 355; Cooley on Taxation, secs. 775, 776; ""Chicago v. Frary, 22 Ill. 34; ""London v. Wilmington, 78 N.C. 109; ""Union Trust Co. v. Weber, 96 Ill. 346. (5) Injunction will not lie to restrain the collection of a tax on an illegal and void levy as alleged in the petition in this case. ""McPike v. Pew, 48 Mo. 525; ""Sayre v. Tompkins, 23 Mo. 443; ""State v. County Court, 51 Mo. 368. (6) Taxes "for schools" may be assessed, levied and collected without any order of the circuit court or judge thereof. Taxes for "building purposes," for "sinking fund" and for "annual interest" are taxes "for schools." Constitution of Missouri, art. 10, sec. 11; R. S. 1889, secs. 7653-7654, 7986, 7987, 8006, 8017; ""Railroad v. Lamkin, 97 Mo. 496; ""State ex rel. v. Railroad, 83 Mo. 395. (7) In levying school taxes on railroads, only the rates are to be averaged. Whether the amount of the tax is set forth in the estimate is immaterial. (R. S. 1889, sec. 7732.) In voting tax for erecting school houses, it is necessary for school boards to make an estimate of the rate only, and only an increase of the rate is voted on. (R. S. 1889, sec. 8006.) The same is true of "sinking fund" and "annual interest." (R. S. 1889, secs. 7986, 7987.) When the rate is determined the amount is a mere calculation, which anyone can make. The failure to set out the amount of such tax is, at most, a mere irregularity and is cured by Revised Statutes, 1889, secs. 7708, 7563; ""Raily v. Gunn, 76 Mo. 273; ""State ex rel. v. Bank, 25 S.W. 372; Cooley on Taxation, 283, 284, 290. (8) The fact that the county court made the levy on August 4, 1890, and the tax was due June 1, 1890, is an irregularity caused by a failure of the state board of equalization to complete its labors in time. The county court had to wait till it received the certificate of the action of the state board. (R. S. sec. 7731.) The state board did not complete its labors, and never does, till after June 1. Journal State Board of Equalization, 1890, and other years; R. S. 1889, secs. 7708, 7563; ""Black v. McGonigle, 103 Mo. 200. (9) While the county court correctly added together the rates for the "building fund" proper, the "sinking fund" and "annual interest" since these make one common fund (R. S. 1889, sec. 8017), and, at most, amounts to a mere irregularity, yet this is immaterial in this case, as the aggregate of the rates for "building fund" alone is 2.10c., which, divided by ninety-five -- the number of school districts (R. S. 1889, sec. 7732) -- gives more than the amount of tax tendered, which was 1.76-81 cents on $ 100 valuation. ""Rockland v. Ulmer, 84 Me. 503; ""Railroad v. Scammon, 45 Kan. 481; ""Johnson v. Duer, 115 Mo. 379; ""Arnold v. Hawkins, 95 Mo. 569.

Barclay, J. Brace, C. J., and Macfarlane and Robinson, JJ., concur.

OPINION

Barclay, J.

This cause has been twice argued here.

After the announcement of the first judgment (reported, 28 S.W. 736), a rehearing was granted at the instance of plaintiff. We now agree with the plaintiff's suggestion, on the motion for rehearing, as to the propriety of determining one of the questions left undecided upon the first hearing.

We have also taken the occasion, afforded by a reconsideration of the case, to modify the first opinion in some particulars.

The suit is to enjoin the collection of certain taxes in Newton county.

The pleadings need not be recited. The issues submitted are purely legal, and involve no disputed facts.

The trial at the circuit was upon an agreed statement, which raised the questions hereinafter discussed. They need not be more specifically defined, as counsel do not differ as to the points properly arising for decision on the merits.

1. The result of the suit depends on the proper construction of the revenue laws of this state. Hence the case falls within the appellate jurisdiction of the supreme court under the constitution. Const., 1875, art. 6, sec. 12.

2. A preliminary point of practice is advanced by defendant to prevent any review of the merits of the controversy.

The bill of exceptions was filed after the term of judgment. Its validity depends on whether an order made by the judge, May 17, 1892 (for an extension of time to file the bill) is good, where the prior order, on which it was based, allowed "until May 17, 1892," to have the bill signed. Defendant asserts that the order is not valid, and that the bill of exceptions should be ignored.

He has cited several decisions which appear to give countenance to that contention. At least two directly bear upon the very point. DeHaven v. DeHaven (1874), 46 Ind. 296, and Corbin v. Ketcham (1882), 87 Ind. 138. But there are two cases in another state which assert the counter proposition, namely, that where "until" a certain time is granted to file a motion for new trial, etc., the filing of it at the time named is good. Board v. Dart (1881), 67 Ga. 765; Rogers v. Railroad (1883), 70 Ga. 717.

Resorting to the language of another, "the word 'until' is ambiguous, and may be construed either inclusive or exclusive of the day mentioned, according to the subject-matter and the true intent of the document in which it is used." Watson, B., in Proudman v. Mellor (1859), 4 H. & N. * p. 124, following, King v. Stevens (1804), 5 East, 244.

In Kerr v. Jeston (1842), 1 Dowl. (N. S.) 538, "until" a certain date was given to make an award, and the award on that day was held valid.

The same view has been adopted in an earlier case on similar facts, except that "till" instead of "unt...