The State ex rel. Morgan County v. Wilder

• Decision Date: 22 November 1906
• Citation: 97 S.W. 864,199 Mo. 503
• Parties: THE STATE ex rel. MORGAN COUNTY et al. v. WILDER, State Auditor
• Court: Missouri Supreme Court

97 S.W. 864

199 Mo. 503

THE STATE ex rel. MORGAN COUNTY et al. v. WILDER, State Auditor

Supreme Court of Missouri

November 22, 1906

Peremptory writ denied.

H. E Neville, W. T. S. Agee, B. F. Glahn and E. W. Nelson for relators.

Section 5 of the act of 1868 provides that in all cases where railroads are built under the provisions contained in said act, the proceeds of all state taxes levied upon such railroad shall be paid into the treasury of the county where collected and apportioned to the payment of the bonds issued by such county for the construction of such railroad. Morgan county having erroneously paid the taxes so raised and collected into the State Treasury, the Legislature in 1905 directed the State Auditor to draw his warrant on the State Treasurer for said sums of money payable to the county treasurer of Morgan county. (1) The act of 1868 is constitutional. State ex rel. v. Linn Co. Court, 44 Mo. 504; Cass Co. v. Johnson, 95 U.S. 360; Cass Co. v. Jordan, 95 U.S. 373; Daviess Co. v Huidekoper, 98 U.S. 102; Douglass v. Pike Co., 101 U.S. 677; Knox Co. v. Bank, 147 U.S. 91. (2) Some weight should be given to the legislative construction of the act. Webb v. LaFayette Co., 67 Mo. 369; secs 9257, 9386, R. S. 1899; Laws 1899, p. 30. (3) The act of 1905 does not contravene section 53, article 4, Constitution of 1875, providing that "the General Assembly shall not pass any local or special law ... remitting fines, penalties and forfeitures or refunding moneys legally paid into the treasury." (b) Neither is it violation of section 46, article 4, Constitution of 1875, prohibiting the Legislature from "making any grant, or authorizing the making of any grant of public money or thing of value to any individual, association of individuals, municipal or other corporations whatsoever ... except in case of public calamity," for the reason that this act does not make any grant, or authorize the making of any grant of public money. This money is not public money, but Morgan county's money inadvertently and illegally and erroneously paid into the State Treasury, and this act simply provides for the taking from the State Treasury money that does not belong to the State but to Morgan county. (c) Neither does this act contravene sections 45 and 47 of article 4, Constitution 1875. The credit of the State or township is not loaned; they act in the capacity of agents. State ex rel. v. Linn Co. Court, 44 Mo. 504. The court is respectfully and earnestly requested to reconsider its opinion in State ex rel. v. Walker, 85 Mo. 41, which announces to the contrary. The constitutionality of the act of 1868 was affirmed by this court very soon after its passage. State ex rel. v. Linn Co. Court, 44 Mo. 504. This case was decided at the October term, 1869. This court decided the act to be constitutional, and granted the writ compelling the issuance of the bonds. Other counties relying on that opinion of this court, among them Morgan county, issued bonds under the provisions of said act of 1868, and this court will hesitate to interfere with previous adjudications where, on the faith of such decisions, property has been acquired or money invested. State ex rel. v. Sutterfield, 54 Mo. 391; State ex rel. v. Woodson, 67 Mo. 338; Douglas v. Pike Co., 101 U.S. 687; Ralls Co. v. Douglas, 105 U.S. 728. When these bonds were issued they had the sanction of (a) the Legislature; (b) the judiciary as announced in the case of State ex rel. v. Linn County Court, 44 Mo. 504. (c) Since that time bonds issued under the same law have been upheld in many cases in the Federal circuit courts, and in the United States Supreme Court. They continued to receive the sanction of the courts of this State until the United States Supreme Court, in Horshman v. Bates County, 92 U.S. 469, held the law of 1868 unconstitutional, and notwithstanding the fact that that eminent tribunal at the earliest opportunity, in Cass County v. Johnson, 95 U.S. 360, about one year later, expressly overruled its former opinion, this court has never adopted the latest ruling of the United States Supreme Court.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

The act approved April 12, 1905, is void and unconstitutional. State ex rel. v. Walker, State Auditor, 85 Mo. 41; secs. 46, 47, 48 and 53, art. 4, Const. 1875; Webb v. Lafayette County, 67 Mo. 353.

FOX, J. Lamm, J., dissents.

OPINION

In Banc

Mandamus.

FOX, J.

-- This is an original proceeding in this court instituted by Morgan county in the State of Missouri, and J. W. Johnson, treasurer of Morgan county, by which it is sought to obtain a peremptory writ of mandamus to compel the respondent, as State Auditor, to issue two warrants in favor of relator, J W. Johnson, Treasurer of Morgan county, one for the sum of $ 2,139.80, and the other for the sum of $ 1,933.25, according to the provisions of an act of the General Assembly, approved April 12, 1905.

The provisions of said act are as follows:

It is entitled, "An act for the reimbursement of Morgan county, out of the State revenue and State interest funds, for moneys heretofore paid into the State treasury belonging to said county."

Section 1 provides: "That there shall be and is hereby appropriated out of the State revenue fund the sum of two thousand one hundred and thirty-nine dollars and eighty cents to reimburse Morgan county for moneys paid into the State Treasury by said county for the benefit of said State revenue fund between the years 1880 and 1902, inclusive, on account of proceeds of tax paid by the Osage Valley and Southern Kansas Railroad, now called the Boonville, St. Louis and Southern Railway, and which, under the provisions of section 5 of an act entitled, 'An act to facilitate the construction of railroads in the State of Missouri,' approved March 23rd, 1868, said county was entitled to and should have retained.

"Sec. 2. That there be and is hereby appropriated out of the State interest fund the sum of one thousand nine hundred and thirty-three dollars and twenty-five cents, to reimburse Morgan county for moneys paid into the State Treasury by said county for the benefit of said State interest fund between the years 1880 and 1902, inclusive, on account of proceeds of tax paid by the Osage Valley and Southern Kansas Railroad, now called the Boonville, St. Louis and Southern Railway, and which under the provisions of section 5 of an act entitled, 'An act to facilitate the construction of railroads in the State of Missouri,' approved March 23, 1868, said county was entitled to and should have retained.

"Sec. 3. The State auditor is hereby authorized and directed to draw warrants on the State treasurer for the respective amounts as specified and provided in sections 1 and 2 of this act, in favor of the treasurer of Morgan county, and the State treasurer is hereby authorized and directed to pay the same upon presentation."

The State Auditor having refused to issue the warrants as provided by the act as herein indicated, upon application of relators this court on the 4th day of June, 1906, issued its alternative writ of mandamus, directed to the State Auditor, the respondent in this proceeding. The respondent filed the following return to the alternative writ:

"Comes now the respondent and for his return to the alternative writ of mandamus herein, says that he admits that the respondent is the duly elected, qualified and acting auditor of the State of Missouri; admits that the relator, J. W. Johnson, is the duly elected qualified and acting treasurer of Morgan county, Missouri; admits that the General Assembly of the State of Missouri passed the act of Mach 23, 1868, referred to in the alternative writ of mandamus; admits that the General Assembly of the State of Missouri passed the act of April 12, 1905, referred to in the alternative writ of mandamus, and admits that Morgan county paid into the State Treasury of Missouri the amount of money and at the time as stated in the alternative writ of mandamus.

"And for his other and further return respondent says that said act of the General Assembly, passed and approved April 12, 1905, is unconstitutional and void, because in conflict with and in violation of section 46 and section 53 of article IV of the Constitution of Missouri.

"Wherefore the respondent prays the court that no peremptory writ of mandamus issue, and that he may be discharged and go hence without day."

This constitutes the record in this proceeding, and it is now before us for consideration.

OPINION.

The proposition presented for consideration by the record in this proceeding is by no means a new one. For more than a quarter of a century the question now presented by relators has been regarded as settled by the former adjudications of this court. The act of the Legislature approved April 12, 1905, has for its foundation the act of the General Assembly approved March 23, 1868, entitled, "An act to facilitate the construction of railroads in the State of Missouri," and it is manifest that if the act of 1868 is unconstitutional and void it logically follows that the act of 1905, upon which this proceeding is predicated, is without force or vitality. The foundation having fallen the structure upon which it rests must necessarily fall with it.

The first time that the act of 1868 was brought to the attention of this court was in the case of State ex rel. v. Linn County Court, 44 Mo. 504. The conclusions reached in that case were predicated upon substantially the following state of facts: In 1869 Linn county, in pursuance of the provisions of the act of 1868, voted a subscription to the North Missouri Central Railroad Company, but the county court refused to issue and deliver the...