The State ex rel. Glenn v. The Mississippi River Bridge Co.
| Decision Date | 26 May 1896 |
| Citation | 35 S.W. 592,134 Mo. 321 |
| Parties | The State ex rel. Glenn, Collector, Appellant, v. The Mississippi River Bridge Company et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Pike Circuit Court. -- Hon. R. F. Roy, Judge.
Affirmed.
Ras. Pearson, Jas. W. Reynolds, and Fagg, Ball & Hicks for plaintiff, appellant.
(1) This case has once been heard by the supreme court, and is reported in 109 Mo., page 253. In that opinion the court decided expressly and emphatically that the Mississippi bridge, here in question, was included within the language no less than the spirit and intent, of section 7765, Revised Statutes, 1889. Therefore we insist that it is not now open to further adjudication, but is res adjudicata as to all questions decided in that opinion. Perkens v Fielding, 119 Mo. 149; In re Estate of Meeker, 45 Mo.App. 186. (2) The Chicago & Alton Railroad Company was not a proper or necessary party and was so decided in this case, 109 Mo. page 253, therefore is now res adjudicata. See above authority. Besides it could not of its own motion be made a party with or without consent of plaintiff, but as a matter of fact plaintiff denied the right of the road to be made a party. 21 Mo.App. 520; 29 Mo.App. 271. (3) It does not appear from the evidence in the case, when the bonded indebtedness was created or when the bonds were issued therefore it will be presumed that the debt was created and bonds issued prior to enactment of section 7654, Revised Statutes, 1889. State ex rel. v. Railroad, 113 Mo. 297. But in addition to this we insist that the records of the county court show that an order was issued in 1879 by Hon. G. Porter on the county court of Pike county to make the levy. (4) Since the adoption of the constitution of 1875, townships can not become indebted in any manner in aid of railroads; therefore the presumption that this debt was created prior to the enactment of section 7654. This section has been declared unconstitutional so far as it applies to debts prior to this statute. Sibert v. Lewis, 122 U.S. 284; State ex rel. v. Railroad, 113 Mo. 297. (5) We also insist that section 7654 does not apply to the city of Louisiana taxes. State ex rel. v. Railroad, 113 Mo. 239; State ex rel. v. Railroad, 101 Mo. 136, and authority there cited.
M. J. Scrafford and J. G. Trimble for defendants, appellants.
(1) Plaintiff's objection to the introduction of any evidence was properly overruled, as the Chicago & Alton Railroad Company is "the real party in interest," and hence a proper party to the suit. Section 1990, Revised Statutes, 1889. This question, however, is not before the court, as no exception was taken at the time motion to be made party was sustained. State v. Reid, 89 Mo. 168, and authorities cited. (2) Objections to Stewart's testimony were properly overruled. His testimony was not concerning the contents of a record, but that there was no record. Sweet v. Maupin, 65 Mo. 65. (3) The finding as to Louisiana city tax is right. First. The levy was not authorized because no certificate therefor was filed. Section 7730, Revised Statutes, 1889; City of Kansas v. Railroad, 81 Mo. 285. Second. And because no order of circuit court was made commanding levy. See authorities under point 4. (4) Judgment as to Buffalo township tax is erroneous. Taxes other than state, school, and county expenditure levied without order of circuit court are invalid. Section 7654, Revised Statutes, 1889; State ex rel. v. Railroad, 87 Mo. 236; State ex rel. v. Hager, 91 Mo. 452; State ex rel. v. Railroad, 92 Mo. 137; State ex rel. v. U. T. Co., 92 Mo. 157; State ex rel. v. Railroad, 97 Mo. 296. (5) The bridge is not taxable as a separate property. First. It is not a toll bridge. State ex rel. v. Railroad, 97 Mo. 348. Second. It is not owned by a "joint stock company." If the Mississippi River Bridge Company be an entity and the owner of the bridge it is a corporation. A "joint stock company" is not a corporation. 1 Bouvier's Law Dict. 757; 11 Am. and Eng. Encyclopedia of Law, 1036, et seq.; Frank v. Drenkhahn, 76 Mo. 508. Third. A bridge used exclusively for railroad traffic is a part of the railroad and not a separate property. Anderson v. Railroad, 117 Ill. 26. (6) Even if the Mississippi River Bridge Company were an entity and the owner of the bridge, its conveyance makes the Chicago & Alton Railroad Company the owner. A lease in perpetuity is equivalent to an absolute conveyance. Anderson's Law Dict. 606; 2 Bouvier's Law Dict. 17; Arms v. Burt, 1 Vt. 306; Railroad v. Boyd, 118 Ill. 73. (7) From inception to completion everything was done by the Chicago & Alton Railroad Company at its own expense. It used other names when compelled to, but always for itself. It is and always has been the owner of the bridge. The Mississippi River Bridge Company is and always has been a myth -- a name -- and incapable of ownership.
This is a suit under the statute to recover taxes assessed for state, county, municipal, and township purposes, by the county court of Pike county for the year 1889, on the Missouri portion of the railroad bridge and approaches at Louisiana, Missouri.
Previous to the first trial of this cause in the lower court, the Chicago & Alton Railroad Company, upon its own application, was made a party defendant, and filed its answer setting out a state of facts that it claimed made it the real party in interest, and the one to whom the property should have been assessed. It then claimed the use of the entire bridge property under and by virtue of a perpetual lease executed to it, by the Mississippi River Bridge Company at the time of the construction of the bridge. That by said lease in perpetuity, the entire bridge across the Mississippi became the property of the railroad, and a part of its line of railroad from Chicago in the state of Illinois to Kansas City in the state of Missouri, and that by the terms and conditions of said lease, the defendant, the Chicago & Alton Railroad Company, became responsible to the defendant bridge company for the payment of all taxes and assessments, state, county, and municipal, which might be lawfully assessed against the bridge company, and that the Chicago & Alton Railroad was in the exclusive possession, use, and control of said bridge, and that it, in connection with its main and leased line of railroad, was used solely for railroad transportation. It was further contended upon the first hearing, that the bridge in question was neither owned by a joint stock company, nor was it a toll bridge, but that it should be taxed merely as a part of its railroad line.
On the issues as then made the trial court, at its first hearing, found for the defendants, on the theory that the bridge property was improperly assessed, and should have been treated for taxation as a portion of the line of the Chicago & Alton Railroad Company.
The case on reaching this court was reversed and remanded, and in the opinion then rendered, reported in the 109 Mo. 253, it was decided that the bridge was subject to be taxed as the property of the Mississippi River Bridge Company under section 7755 of the revenue laws of 1889; that the mere fact that the bridge was built for railroad trains to pass over and upon, and was used exclusively as and for a railroad bridge, did not entitle it to be assessed as railroad property unless it was in fact owned by the railroad company. And in construing the lease from the Mississippi River Bridge Company, to the defendant Chicago & Alton Railroad Company, made in perpetuity in terms, this court then held, that by reason of the defeasance clause of the lease, the bridge, and not the railroad company, still held the paramount legal title to the property, subject only to the lease of the railroad, and was subject to be assessed as such under section 7755 and not as railroad property; that whether a toll bridge or not, under the authority of State ex rel. v. Railroad, 89 Mo. 98, such corporations as the Mississippi River Bridge Company are intended to be embraced within the term joint stock companies.
When the case was first before this court on appeal the sole and only question presented was as to the authority of the assessment; that is, that the bridge property was not subject to the tax imposed. No challenge was then made, as now, as to the irregularity of the assessment by the state board of equalization and the levy by the county court.
The case on the issues thus presented being decided against this appellant (then respondent) was sent back to be retried in accordance with the opinion then delivered, when the defendants filed an amended answer, setting up substantially the same facts which had been relied upon by the defendant Chicago & Alton Railroad Company on the first trial to show its right and interests in the premises, to which opinion reference has been made for the ascertainment of the facts as then and now plead, and as disclosed by the testimony on that branch of the controversy, and, in addition, defendants now claim that the bridge with all its property belonged of right to the Louisiana & Missouri River Railroad Company, subject to whatever rights, if any, the Mississippi River Bridge Company had to its exclusive possession, and that by reason of an agreement between the Louisiana & Missouri River Railroad Company and the Chicago & Alton Railroad Company, the latter had such an interest as to make it a necessary party still.
And it was further alleged that, under the act of congress authorizing the location and construction of the said bridge the Mississippi River Bridge Company had no right or authority to do any of the said work except as...
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