The State ex rel. O'Briant v. Keokuk & Western Railroad Company
Decision Date | 19 December 1899 |
Citation | 54 S.W. 559,153 Mo. 157 |
Parties | THE STATE ex rel. O'BRIANT, COLLECTOR OF REVENUE FOR SCHUYLER COUNTY, v. KEOKUK AND WESTERN RAILROAD COMPANY, Appellant |
Court | Missouri Supreme Court |
Appeal from Schuyler Circuit Court. -- Hon. Andrew Ellison, Judge.
Affirmed.
Felix T. Hughes and Edward Higbee for appellant.
(1) Section 18, chap. 63, G. S. 1865, on the subject of railroad subscription provides that "upon the making of such subscription by any county, city or town as provided for in the previous section, such county, city or town shall thereupon become like other subscribers to such stock and entitled to the privileges granted and subjected to the liabilities imposed by this chapter." If the county could under the guise of taxation or otherwise withhold or collect back from the corporation or its property any part of the price of its stock, in so far it would be paying less for its stock than other stockholders, such a claim violates the statute and is inequitable and unjust. Rorer on Railroads, p 1500; Applegate v. Ernst, 3 Bush (Ky.) 648; Louisville & N. R. Co. v. Hopkins Co., 9 S.W. 76; Owensboro & N. R'y Co. v. Logan Co., 11 S.W. 76; Macon v. Jones, 67 Ga. 439; Murray v Charleston, 96 U.S. 432. (2) If the revenue laws of the State in force when the tax in question was levied authorize such levy, then such laws are in bad faith, violate the contract of subscription, impair the obligation of said contract and are therefore in violation of the Constitution of the United States and void. Murray v. Charleston, 96 U.S. 432; Hartman v. Greenow, 107 U.S. 769; Miller v. Wilson, 60 Ga. 505; Macon v Jones, 67 Ga. 489; Dillon on Mun. Corp. (5 Ed.), secs. 742 and 786. (3) The refunding of the original bonds created no obligation on the defendant to pay taxes levied to pay such refunding bonds. It is not claimed that either the defendant or the Missouri, Iowa and Nebraska Railway Company were in anywise parties to such refunding scheme. Therefore, as to these parties, refunding does not pay the original price of the stock. Randolph on Com. Sec., 1151 and 1571; Lipold v. Held, 58 Mo. 213; Christian v. Newberry, 61 Mo. 451; Wemer v. Peacock, 31 Mo.App. 245; Lee v. Hollister, 5 F. 752.
Fogle & French and Thomas W. Baird for respondent.
(1) As this defendant is the successor of the M., I & N. Railway Company, and as that road was not and could not be exempt from taxation under the Constitution of the State of Missouri, of 1865 and 1875, the defendant is taxable the same as other property in the State. K. & W. Railway Co. v. State, 152 U.S. 450; Atlantic & Gulf R. Co. v. Georgia, 98 U.S. 59; Maine Central R. Co. v. Maine, 96 U.S. 499; Memphis & L. R. R. Co. v. Berry, 112 U.S. 609; St. Louis, I. M. & S. R. Co. v. Berry, 113 U.S. 465; State ex rel. v. Keokuk & Western Ry. Co., 99 Mo. 30; State v. Atlantic & G. R. Co., 60 Ga. 268. (2) It is elementary law that the law of taxation, like all other law, enters into and becomes a part of a contract; that is, the contract is made subject to the power of taxation and changes thereof, otherwise why have an examination clause in a charter? State v. Railroad, 60 Mo. 143. (3) In order to exempt property from taxation, there must be a law clearly granting the exemption. State ex rel. v. K. & W. Ry. Co., 99 Mo. 30; Bank v. Billings, 4 Pet. 514; McCullaugh v. Maryland, 4 Wheat. 428; Nathan v. Louisiana, 8 How. 82; Phil. & Will. R. R. Co. v. Maryland, 10 How. 393; K. & W. R. R. Co. v. State, 152 U.S. 450. (4) The power of a sovereign government to impose taxes extends to all the persons and property belonging to the body politic, and has its foundation in the very nature of society itself. It is granted by all, for the benefit of all, and resides in the government as a part of itself. Bank v. Billings, 4 Pet. 514; Charles River Bridge v. Warner Bridge, 11 Pet. 420; Nathan v. Louisiana, 8 How. 73; State ex rel v. Shortridge, 56 Mo. 126; Hannibal & St. Joseph R. R. Co. v. State Board, 64 Mo. 294. (5) Every statute will be presumed to be constitutional until the contrary plainly appears, and it is only when it manifestly infringes some provision of the Constitution, that it can be declared void. State v. Cape Girardeau & State Line R. Co., 48 Mo. 468; Phillips v. Railroad, 86 Mo. 540; Railroad v. Shambaugh, 106 Mo. 557; Deal v. Miss. Co., 107 Mo. 464; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Yancey, 123 Mo. 391. (6) The exercise of the taxing power must become wanton and unjust -- be so grossly perverted as to lose the character of a legislative function -- before the judiciary will feel invited to interpose on constitutional grounds. To arrest the legislation of a free people, especially in reference to burdens self-imposed for the common good, is to restrain the popular sovereignty, and should have clear warrant in the letter of the fundamental law. Schenly v. Alleghany City, 25 Pa. St. 128; Broadhead v. Milwaukee, 19 Wis. 624; Speer v. School Directors, 50 Pa. St. 150.
Felix T. Hughes and Edward Higbee for appellant in reply.
No claim is made that the railroad company was exempt from taxation by the Legislature of the State for the general taxes; but the simple proposition is that that company can not be made to pay any portion of the subscription made by the county under section 18, chapter 63, G. S. 1865. Under this section the Legislature authorized the county to subscribe for stock in the railroad company and provided the conditions upon which subscription could be made and positively stated that upon taking such subscriptions the county would be entitled to the privileges granted and subjected to the liabilities of other stockholders. Now there is no possible way to avoid this language; either the county must pay as much for its stock as other subscribers and have the same dividends and privileges as other subscribers or else this statute has no meaning.
In Banc.
-- This is a suit for delinquent taxes assessed for the year 1894, against property of the defendant corporation in Schuyler county. The pleadings are in due form and the cause was submitted to the court upon the following agreed statement of fact:
The finding and judgment were for the plaintiff for $ 1,128.81, upon which a motion for new trial followed, which was overruled, and this appeal taken. The statement of the case on behalf of the respondent contains a history of the transactions relating to the county's subscription, issuance of original and afterwards refunding bonds, foreclosure sale of the original railroad, its purchase by the defendant, etc. But appellant's counsel in their supplemental brief object to those details as no part of the record and insist that the review of the case on this appeal should be limited to the agreed statement of facts, and we will do so.
The proposition of the appellant is that the county having subscribed to the capital stock of the railroad company to assist in the construction of its road, has no right to include the railroad company's property in the assessment levied...
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