The State at Relation and to Use of Kersey v. Pemiscot Land & Cooperage Company

• Decision Date: 23 May 1927
• Docket Number: 27378
• Parties: The State at Relation and to Use of A. Parker Kersey, Collector of the Revenue in and for Pemiscot County, Appellant, v. Pemiscot Land & Cooperage Company
• Court: Missouri Supreme Court

295 S.W. 78

317 Mo. 41

The State at Relation and to Use of A. Parker Kersey, Collector of the Revenue in and for Pemiscot County, Appellant, v. Pemiscot Land & Cooperage Company

No. 27378

Supreme Court of Missouri

May 23, 1927

Appeal from Pemiscot Circuit Court; Hon. Henry C. Riley Judge.

Reversed and remanded (with directions).

S V. Medling and Von Mayes for appellant.

(1) The Legislature in this State cannot impose taxes for county purposes. Sec. 10, Art. 10, Mo. Constitution. (2) Section 11 of Article 10 of the Constitution only specifies the maximum rates for taxes, and is not a grant of power. Galland v Springfield, 264 Mo. 296; State v. Van Every, 75 Mo. 537. (3) Section 22 of Article 10 of the Constitution vests in the county court a discretion to levy a special tax, and the Legislature is without power to direct the county court to levy such tax. Carthage Special Road District v. Ross, 270 Mo. 76. (4) The right of the Legislature to control the discretion of the county court as conferred by Section 22 of Article 10 of the Constitution is excluded by implication. Martin v. Mott, 12 Wheat. (U.S.) 19, 6 L.Ed. 537; 12 C. J. p. 719, sec. 73; 6 R. C. L. p. 49, sec. 43; 36 Cyc. 1122; State v. Board of Curators, 268 Mo. 598; State v. Boyd, 196 Mo. 52. (5) The proviso of Section 12865, as amended by the Acts of 1921, is unconstitutional in so far as it might apply to the tax mentioned in Section 22 of Article 10 of the Constitution. State v. Duncan, 265 Mo. 26.

Ward & Reeves for respondent.

(1) Some contention is made in appellant's brief, apparently, to the effect that the special road and bridge tax should not be considered a county purpose tax. But this question has been squarely and definitely settled against the contention of appellant by both divisions of this court and by Court en Banc. (2) Court en Banc has held that the ten per cent-increase law of 1921 is valid and constitutional, and that it applies to the entire tax levy for county purposes, regardless of the divisions made in the items of levy by the county court. State ex rel. v. Railroad, 275 S.W. 932.

Gantt, J. All concur, except Graves, J., who dissents.

OPINION

GANTT

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 ten million dollars and under thirty million dollars; and by reason thereof Section 11 of Article 10 of the Constitution of Missouri limits the rate of taxation for general county purposes to fifty cents on the one hundred dollars' 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 twenty-five cents on the one hundred dollars 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 one hundred dollars' valuation, as follows:

For 1922, County tax, 20 cents; Road district tax, 5 cents; Special road and bridge tax, 10 cents, which produced, mathematically, the sum of $ 85,144.65.

For 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.

For 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.

For 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 1921, p. 678; now Act of 1923, Laws 1923, p. 374):

"Provided, however, the county court shall not have the 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, 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 twelve 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 ten 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 ten 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 ten 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 ten 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 levy authorized by Section 22 of Article 10 of the State Constitution. The Legislature has dealt with that question in the Laws of Missouri of 1917, pages 457, 458. In Section 37 of Article II 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, 206 Mo. 211.]

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 of 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...