The State ex rel. Gottlieb v. Metropolitan Street Railway Company
| Decision Date | 26 March 1901 |
| Citation | 61 S.W. 603,161 Mo. 188 |
| Parties | THE STATE ex rel. GOTTLIEB, Collector, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Edward P. Gates, Judge.
Affirmed.
Frank Hagerman, Daniel B. Holmes and Willard P. Hall for appellant.
(1) There was no lawful assessment of defendant's property. The assessment, as expressly charged in the petition was made in pursuance of the Act of 1897. Laws 1897, pp. 215, 216. That assessment was absolutely null and void for two reasons First, the act does not apply to the defendant. (a) Because the defendant's line of railroad is not located solely in a city, but extends not only through the streets of Kansas City, but from the limits of said city through country portions of the county to the villages of Independence and Westport. The act by its very terms is confined to street railroads located in a single city. (b) Because defendant's line of railroad is located in some considerable part in the country, outside of all cities towns and villages. The act by its very terms does not, nor by any possible construction can it be made to apply to any street railroad outside of a city. See section 1 thereof. (c) The assessment included the property outside of the cities as well as that inside of them. This clearly vitiated the entire assessment. Second, this act is unconstitutional and void. (a) It applies to street railroads in cities alone. The title of the act so recites. The language of the act expressly so provides. Street railroads of the State, which for purposes of taxation constitute a single class, are thus divided into two classes, and one tax is imposed upon one, and another tax upon the other. This taxation is not uniform. The same tax must be imposed upon all members of the same class. Art. 10 sec. 3, Constitution; Brookfield v. Tooey, 141 Mo. 619; State v. Switzler, 45 S.W. 245; Worth v. Railroad, 89 N.C. 291; Gatlin v. Tarboro, 78 N.C. 119; Cooley on Taxation, 194; State v. Burchart, 144 N.W. 83; Kentucky Railroad Tax Cases, 115 U.S. 337; 23 Ency. of Law, 941; Elliott on Roads and Streets (2 Ed.), sec. 732. (b) The Constitution of the State requires that all property must be taxed in proportion to its value. Art. 10, sec. 4. (c) The Constitution prohibits the enactment of local or special laws in a large number of enumerated cases. Art. 4, sec. 53. A law is special that applies only to a portion of the members of the same class. A general law applies to all members of any given class, and unless the law does so apply it is special. Dunne v. Railroad, 131 Mo. 1, and cases cited. (2) The levy was unlawful. Even if the assessment was lawful, it does not follow that the tax is valid. There must also have been a lawful levy. Now, we insist that the levy was unlawful. The assessment was made in pursuance of the Act of 1897, and in the manner provided by statute for assessing the property of railroads generally; that is to say, by the state board of equalization. But the levy was made by the county court in the same manner that it levied school taxes against property of individuals, which had been valued by the county assessor. The school taxes sued for in this case are absolutely illegal, null and void, because, if such concessions be correct in law and in fact, then, by very reason of them, the levy should have been made by the county court in the same manner that the statute required school taxes to be levied against railroad property. It was unlawful to assess defendant's property like railroad property, and to tax it like the property of an individual. This question lies in a very small compass, and depends upon the construction of sections 2 and 3 of the Act of 1897.
Hunter M. Meriwether for respondent.
(1) The Act of March 11, 1897, is constitutional, and the assessment is valid. It seems almost unnecessary to refer to this point, as the act was passed upon directly by the court in Banc in the case of State ex rel. Board of Equalization v. Southwest Missouri Electric Railway Co. This was a test case brought by the street railroads at the time the board of equalization first undertook to assess them. The opinion was rendered by the court orally, and I believe has never been put in written form. Appellant seems to be confused by the language of the act in that it provides for the assessment and taxation of street railroads "in cities in this State." Appellant thinks that the act would apply only to a street railroad which existed wholly inside of a city, and had none of its property outside of a city, but there is no such language used, and no reasonable construction could read the act in this way. A street railroad is essentially a product of cities, because streets exist only in cities. We never speak of a passageway in the country as being a street, though it may be to all essential purposes the same. It is probably true that every street railroad has its home in a city; it is organized to do business in a city. The act does not mean to limit its application to street railroads in cities, which have all their property located in such cities. In this case it would probably be inapplicable to any street railroad in the State. (2) The levy of the tax is valid. Section 9364, Revised Statutes 1899, provides how school taxes shall be levied against the property of railroads. It will be seen on the reading of this statute, and the other sections of the railroad tax law, that the property of steam railroads is divided into two distinct classes, one of which is known as the distributable property of the railroads and the other as the local property. The school rate to be levied upon the distributable property is the average rate for school purposes levied by the various school districts throughout the county, while the rate to be levied upon the local property is the same rate as that levied upon the property of private persons in the school district where the property is located. The county court of Jackson county, in making the levy in this case, exercised the very greatest care in order to make no mistake. The written opinion was taken of the county counsellor and of the Attorney-General of the State, and the levy was made in accordance with these opinions. It was held that inasmuch as the act under which the levy was being made against the property of street railroads provided that said property should be "subject to taxation to the same extent as the real and personal property of private persons," and inasmuch as the property owned by the street railroad was essentially local property, the levy to be made upon such property should be the local rate levied in the several districts where the property owned by the said street railroads was located. The levy was made in this way, and this is the act most complained of by the appellant. In Jackson county there are 116 school districts, and many of these outlying districts have a very small tax rate. If the average rate of the school districts is taken, the school tax against the defendant would be about one-half of the amount it is with the levy made according to the local rate of the district in which the property is situated. But if the average rate were taken, it would follow, as a matter of course, that the tax raised in this way should be distributed to the several districts in the county; that is to say, the Metropolitan Street Railroad, which exists only as a citizen of Kansas City, Missouri, so made by its charter and business offices, would pay to the school district of Kansas City a very small part of its taxes, while the districts in the surrounding country, some of which are twenty to thirty miles distant from the most extended branch of the said Metropolitan Street Railroad, would all receive a part of these school taxes. There is no reason for any such ruling except that it would reduce the taxes of the Metropolitan Street Railroad Company. The property of street railroads is essentially local, and we contend that it ought to be taxed just as the local property of steam roads is taxed and the local property of private persons is taxed. Sec. 9364, R. S. 1899; State ex rel. v. Railroad, 92 Mo. 155. We contend that a construction which would place the property of street railroads under the class of distributable property would be a violation of the Constitution, and that even if the act itself contained nothing to indicate on this point, such a construction would not be warranted. In the matter of apportionment of railroad school taxes, see 78 Mo. 596; Railroad v. Lamkin, 97 Mo. 501.
OPINIONIn Banc
This is an action in the name of the State by the collector of the revenue of Jackson county, to recover delinquent taxes for the year 1898, assessed and levied on the property of the defendant in that county, as follows:
For school taxes, of the school district of Kansas
City
$ 9,233.56
For school taxes for the school district of Independ-
ence
117.19
For school taxes for the school district of Westport
384.23
For school taxes for district No. 4-49-33
24.97
For school taxes for district No. 3-49-33
117.78
For school taxes for district No. 9-49-32
94.02
For school taxes for district No. 2-50-32
amounting in the aggregate to the sum of $ 10,153.32, for which amount with interest, penalties and costs, the plaintiff obtained judgment in the circuit court, and the defendant appeals.
These taxes were assessed and levied in pursuance of the provisions of an act of the General Assembly approved March 11, 1897, entitled "An act to provide a more uniform assessment and taxation of street railroads in cities of this State," which is as follows:
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