The State ex rel. Johnson v. Chicago, Burlington & Quincy Railroad Co.

• Decision Date: 30 March 1906
• Citation: 93 S.W. 784,195 Mo. 228
• Parties: THE STATE ex rel. JOHNSON, Collector of Revenues, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

93 S.W. 784

195 Mo. 228

THE STATE ex rel. JOHNSON, Collector of Revenues, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant

Supreme Court of Missouri

March 30, 1906

Appeal from Macon Circuit Court. -- Hon. Nat. M. Shelton, Judge.

Reversed.

O. M Spencer, Ben Eli Guthrie and H. J. Nelson for appellants.

(1) The entire constitutional amendment in question is void because the exemption of St. Louis, Kansas City and St. Joseph is an unjust discrimination in favor of those cities against all other cities, towns and villages in the State, and is therefore a violation of the fifth and fourteenth amendments to the Constitution of the United States, which provide that no person shall be deprived of property without due process of law and guaranteeing to all persons the equal protection of the law, etc. State v. Bergsh, 170 Mo. 117; Russell v. Croy, 164 Mo. 97; State ex rel. v Ashbrook, 154 Mo. 393. (2) And the amendment is in conflict with section 3, article 10, of the Constitution of Missouri, which says that taxes "shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax," because in Jackson and Buchanan counties there are other incorporated cities "within the territorial limits" of said counties respectively, so that the county courts of those counties cannot obey the amendment without violating section 3 article 10, of our Constitition. Russell v. Croy, 164 Mo. 103. (3) The amendment is also in conflict with section 7, article 10, of the Missouri Constitution, which prohibits the exemption of particular cities from taxation. (4) This amendment, except the part exempting St. Louis, Kansas City and St. Joseph, is the same old amendment the people of Missouri have repeatedly defeated. Judson on Taxation in Mo., 86-7. That the exemption of St. Louis, Kansas City and St. Joseph was tacked on as a trick to prevent the voters of those cities from again defeating the amendment, is a matter of common knowledge and plain on the face of the amendment, and should render the whole amendment void.

Sydney J. Roy and Ben F. Glahn for respondent.

(1) An amendment cannot be declared void because its provisions conflict with the provisions of the original Constitution. Russell v. Croy, 164 Mo. 104; In the Matter of Executive Communications, 15 Fla. 739; Buckner v. Street, 1 Dill. (U.S.) 257; People v. Angle, 109 N.Y. 564; 6 Am. and Eng. Ency. Law (2 Ed.), 927. This amendment is to be treated as adopted with reference to existing laws. People v. Potter, 47 N.Y. 375; Cass v. Dillon, 2 Ohio St. 607; 6 Am. and Eng. Ency. Law (2 Ed.), 930; Lamar W. & El. Co. v. Lamar, 128 Mo. 188; Fusz v. Spaunhorst, 67 Mo. 255. (2) The taxation of different classes of property by different modes is not forbidden by the requirements of equality and uniformity. And in regard to the enforcement of the collection of taxes, one rule may be adopted for one class of property, and another rule for another class of property. Railroad v. Pennsylvania, 134 U.S. 232; Pacific Express Co. v. Seibert, 142 U.S. 339; Home Insurance Co. v. New York, 134 U.S. 594; Western Union Tel. Co. v. Indiana, 165 U.S. 304; State ex rel. v. Severance, 55 Mo. 387. Railroad property may be separately classed. Railroad v. Walker, 47 F. 686.

MARSHALL, J. Brace, C. J., and Gantt, Burgess, Valliant, Fox and Lamm, JJ., concur.

OPINION

In Banc

MARSHALL J.

This is an action to recover $ 1,175.48, and penalties thereon, together with a reasonable attorney's fee, being a part of the taxes levied for the year 1901 on the property of the defendant in Marion county, "for county purposes . . . to be used for road and bridge purposes, but for no other purposes whatever." There was a judgment for the plaintiff for the taxes and interest and penalties and $ 200 attorney's fee, and the defendant appealed.

The petition alleges the official character of the relator as the collector of the revenue for the county; the incorporation of the defendant as a railroad; the fact that it owns certain property, fully described, in Marion county, and then avers "that there was legally assessed and levied against such property for the year ending June 1, A. D. 1901, for State, county, school and other municipal purposes, the aggregate sum of $ 10,780.65; that there is now due and unpaid for county purposes, the sum of $ 1,175.48, which sum was levied to be used for road and bridge purposes, and for no other purpose whatever, which the defendant had failed to pay as required by law."

The answer admits the incorporation of the defendant and the ownership of the property; denies every other allegation in the petition, and then avers that the taxes sought to be recovered were not levied in pursuance to any law; that the levy of the tax is illegal and void because not authorized by the statutes or Constitution of the State, and not made in accordance with, or by virtue of, any law whatever; and then further alleges that prior to the 31st of December, 1901, the defendant paid all taxes which had been legally levied against its property in Marion county, for the year 1901.

The reply is, in effect, a general denial.

The case was submitted to the court without a jury upon an agreed statement of facts, which recites the official character of the relator; that the attorneys for relator were regularly employed to prosecute this action; that the defendant is a corporation and the owner of the property described in the petition, all of which is situated in Marion county; that the total taxable wealth of that county for the year 1901 was more than six million dollars and less than ten million dollars, and that the county was entitled to levy upon the property of the defendant, for the year 1901, a maximum rate of 40 cents on the one hundred dollars valuation for county purposes, out of which it was entitled to a portion for road purposes, not less than five nor more than twenty cents on the one hundred dollars valuation of the property of the defendant situated outside of the cities, towns, and villages; that on the 16th of May, 1901, the county court of Marion county made, by order of record, a levy of taxes for State and county purposes as follows:

"State tax, 15 cents on the one hundred dollars valuation; State interest tax, 10 cents on the one hundred dollars valuation; county tax, 30 cents on the one hundred dollars valuation; county road tax, 10 cents on the one hundred dollars valuation; special road and bridge tax, 15 cents on the one hundred dollars valuation; courthouse tax, 10 cents on the one hundred dollars valuation," etc.

The valuation of the property of the defendant in that county was then set out in the agreed statement of facts, but as no question is made in reference thereto, it is not necessary to further refer to it. The total assessed valuation of the property of the defendant in Marion county was then agreed to be $ 783,608.37. It was further agreed that upon that valuation, a county revenue tax of 30 cents was levied and extended on the railroad tax books for that year, amounting to $ 235.83; a road tax at the rate of 10 cents on the value of the property outside the cities, which was agreed to be $ 671,708.89, amounting, therefore, to $ 671.71; a special road tax at the rate of 15 cents on the value of all property in the county, including property inside of the cities, of the total value aforesaid, aggregating $ 1,175.48. It was further agreed that before December 31, 1901, the defendant paid all of said taxes, except the special road tax. It was further agreed that the city of Palmyra and the city of Hannibal are both within the county of Marion, that said county is not organized under township organization, and that defendant paid the taxes levied by said cities on the part of its property located therein for the year 1901. It was further agreed that in attempting to levy and collect said special taxes, the county court of that county "proceeded on the theory that said levy was authorized by the constitutional amendment adopted at the general election held in November, 1900, designated as the 'second constitutional amendment,' found on page 381, of the Laws of Missouri of 1899, and reading as follows: 'Section 1. In addition to taxes authorized to be levied for county purposes, under and by virtue of section 11, article 10, of the Constitution of this State, the county courts 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 a special tax not exceeding fifteen cents on each one hundred dollars valuation, to be used for road and bridge purposes, but for no other purpose whatever; and the power hereby given said county courts, and township boards, is declared to be a discretionary power. This constitutional amendment shall not apply to the cities of St. Louis, Kansas City and St. Joseph.'"

It was further agreed that on the 26th of March, 1901, there went into effect an act of the Legislature of the State of Missouri, entitled, "An Act to amend chapter 151 Revised Statutes of Missouri of 1899, by adding thereto a new article, to be known as article 12," etc., which act is found on pages 237 to 244 of the Laws of Missouri of 1901; and that during the year 1901, the county court never made any order adopting said new article 12, and did not proceed thereunder, but in making the levy of ten cents out of the rates allowed for county purposes, for the item designated as "road tax," the county court acted under article 1 of chapter 151, Revised Statutes 1899, and in attempting to make a levy of 15 cents for the item designated "special road tax," proceeded on the theory that the...