The State ex rel v. Atchison, Topeka & Santa Fe Railway Co.

• Decision Date: 07 October 1925
• Docket Number: 24202
• Citation: 275 S.W. 932,310 Mo. 587
• Parties: THE STATE ex rel. LOUIS JOHNSON, Collector of Revenue of Clark County, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

275 S.W. 932

310 Mo. 587

THE STATE ex rel. LOUIS JOHNSON, Collector of Revenue of Clark County, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 24202

Supreme Court of Missouri

October 7, 1925

Appeal from Clark Circuit Court; Hon. N. M. Pettingill Judge.

Reversed and remanded.

Cyrus Crane, Geo. J. Mersereau, John H. Lathrop, Richard S. Righter and T. L. Montgomery for appellant.

(1) The taxes sued for are illegal, void and uncollectible to the extent of $ 841.81. (a) The Missouri law prohibiting the levy of county taxes for 1921 in an amount more than ten per cent greater than the amount of county taxes for 1920, includes all county taxes except those specifically excluded. Laws 1921, pp. 677, 678, re-enacting Sec. 12865, R. S. 1919; Secs 10683, 12866, R. S. 1919; Secs. 11, 22, Art. 10, Mo Constitution; Laws 1921, pp. 666, 517, 518, 520-522; State ex rel. Sedalia v. Weinrich, 236 S.W. 873. (b) Under the Missouri decisions, the words "for county purposes," as used in Section 12865 as amended, Laws 1921, should be broadly construed. Board of Commrs. v. Peter, 253 Mo. 520; State ex rel. Conrad v. Piper, 214 Mo. 439; State ex rel. Clark Co. v. Hackmann, 280 Mo. 686; State ex rel. Burgess v. Railroad, 145 Mo. 596; State ex rel. Hirni v. Railroad, 123 Mo. 72. (c) Statutes similar to the statute here in question (Sec. 12865, Laws 1921, p. 678) have been given in other states the construction for which appellant contends. Arizona Railroad Co. v. Graham Co., 170 P. 792; Northern Pac. Railroad v. Tucker, 184 N.W. 782; Cottle v. Union Pac. Railroad, 201 F. 39. (d) Cases from other states have construed "for county purposes" broadly in similar circumstances. People v. Chicago Ry. Co., 110 N.E. 720; People ex rel. Weber v. Railroad, 94 N.E. 128; People ex rel. Murray v. Railroad, 295 Ill. 214. (2) Relator cannot recover any penalty, costs or attorneys' fees in this action. Walker v. St. Louis, 15 Mo. 563; People ex rel. Stuckart v. Ry. Co., 110 N.E. 720; People ex rel. Stuckart v. Lamb, 277 Ill. 584; State v. Hoffman, 201 S.W. 653; Northern Pac. Ry. Co. v. Franklin County, 203 P. 27; State ex rel. Superior Court v. Stephens Co., 161 P. 77. (a) Relator cannot recover any costs in this action. Sec. 1711, R. S. 1919. (b) Relator cannot recover any attorneys' fees in this action.

James H. Talbott, Marion L. Clay and John M. Dawson for respondent.

(1) The taxes sued on and the levies of the county court are presumed to be correct and the burden is on the defendant to show to the contrary. Sec. 12865, R. S. 1919. (2) The State Constitution is a limitation upon the taxing powers. But the Constitution has always made a distinction in regard to the road-and-bridge fund. Sec. 22, Art. 10, State Constitution; Secs. 11, 23, Art. 10, Laws 1921. The road-and-bridge fund, or taxation for the road-and-bridge fund are a separate and distinct levy and are not to be construed with the other county levies nor included therein. Road District v. Ross, 270 Mo. 76; State ex rel. v. Everet, 245 Mo. 706. (3) Section 22 of Article 10, of the Constitution provides that the road-and-bridge tax is a special tax, and is in addition to taxes authorized to be levied for county purposes, under and by virtue of Section 11, of said article. Therefore the provisions of Sec. 12865, R. S. 1919, as amended by Laws 1921, p. 678, does not include the road-and-bridge fund, and cannot be taken into consideration in the computation authorized under that section. State ex rel. v. Ross, 270 Mo. 76; Harris v. Compton Bond Co., 244 Mo. 664. The organic law of the State makes a distinction as to the special road-and-bridge fund and the other county tax for county purposes. State ex rel. Road Dist. v. Burton, 283 Mo. 41. The Legislature when it enacted Section 12865 in 1921 (Laws 1921, p. 678) did not intend to include this special road and bridge tax. This special road and bridge tax is not to be considered like the other county taxes. State ex rel. v. Burton, 283 Mo. 41, 266 Mo. 711; Laws 1921, Ex. Sess. p. 172.

Graves, C. J. Blair, C. J., and White and Woodson, JJ., concur; Ragland, J., dissents in opinion filed, in which Walker and Atwood, JJ., concur.

OPINION

GRAVES

Action by the Collector of Clark County to recover from the defendant the sum of $ 11,165.46, claimed to be due for taxes for the year 1921. Defendant refused to pay on the ground that under the law of 1921 (Laws 1921, p. 677), the levy for 1921 for county purposes in Clark County exceeded the levy for like purposes in 1920 by more than ten per cent. On December 31, 1921, before such taxes became due, there was a tender of $ 10,144.03, which the defendant claimed was all that it legally owed. In January there was a second tender of $ 10,245.48, which included the amount of the first tender ($ 10,144.03) plus $ 105.45, being a penalty of one per cent for the month of January, 1922. There was a third tender, the purpose of which is stated in appellant's statement of the case thus: "Appellant then discovered that the amount tendered did not equal the full amount of taxes legally due the county from appellant for the year 1921 after deducting appellant's proportion of the excess over the ten per cent increase for the previous year, and, on February 10, 1922, appellant made a tender of $ 10,245.48, and an additional tender of $ 179.62, being the difference between the amount already tendered and the amount which appellant owed after deducting the excess over and above the ten per cent increase of the amount of taxes for the preceding year, plus two per cent penalty. The said Louis Johnson, relator herein, refused to accept each of the several tenders and claimed and demanded the said sum of $ 11,165.46. The last of these three tenders was made after this action had been commenced."

The real contention here involves only the sum of $ 841.81 or even less, but as the case involves the construction of the revenue laws of the State, this court has jurisdiction.

Appellant contends that excluding a judgment levy, the total county levy for 1920, was only $ 83,789.82, and that the total levy for county purposes in 1921 was $ 110,713.26, and that the latter exceeds ten per cent of the former by $ 18,544.47.

The petition says: "That there was legally assessed and levied against such property for the year ending June 1st A. D. 1920, for state, county, school and other municipal purposes, the aggregate sum of $ 11,165.46; that of the taxes so assessed and levied, there is now due and unpaid for state purposes, the sum of $ 1,197.46; for county purposes, the sum of $ 5,322.57, of which said county tax $ 2,394.92 is denominated the county fund tax; the sum of $ 1,131.46 of said county tax is denominated road fund tax; the sum of $ 1,436.95, of said county tax is denominated special road-and-bridge fund tax; the sum of $ 359.24 of said county tax is denominated special-levy-judgment-fund tax; for school purposes in said county, the sum of $ 4,550.35; for city, town and other municipal purposes the sum of $ 95.08, amounting in the aggregate to the sum of $ 11,165.46, which sum the defendant has failed to pay as required by law.

"The plaintiff is entitled to recover from defendant, a penalty of two per cent per calendar month on the amount so due and unpaid, from the 1st day of January A. D. 1922 until the same shall be paid; together with the collector's commission of two per cent on the whole amount."

The answer pleads the following provision in the Act of 1921 (Laws 1921, p. 678), which reads:

"Provided, however, the county court shall not have power to order a rate of tax levy on real or personal property for the year 1921 which shall produce more than ten per cent in excess of the amount produced, mathematically, by the rate of levy ordered in 1920, and in no subsequent year may any county court, or any officer or officers acting therefor, order a rate of tax levy that will produce, mathematically, more than ten per cent in excess of the taxes levied for the previous years."

Relator, the county collector, challenges this provision of the law as being violative of the State Constitution, giving the provisions of the Constitution alleged to have been violated in the enactment of such provision.

The court rendered judgment as follows:

"Now at this day this cause coming on for hearing both plaintiff and the defendant appearing by counsel; upon the pleadings, evidence and counsel before the court both parties waiving jury and the court being duly advised in the premises the court finds that the allegations contained in the plaintiff's petition are true, that all the funds sued on therein are due the plaintiff from the defendant, except as to the sum of $ 161.65, which the court finds has been excessively taxed against the defendant on the Clark County revenue fund.

"Wherefore it is ordered, considered and adjudged by the court that the plaintiff have judgment for the sum of $ 11,165.46, less $ 161.65 and that plaintiff's judgment is therefore for the sum of $ 11,003.81; together with interest thereon from January 1, 1922, in the sum of $ 660.23, and that plaintiff have judgment in the sum of $ 223.28 collector's commission on said taxes sued on in plaintiff's petition, and that plaintiff have judgment in the sum of $ 200 attorney's fees for plaintiff's attorney in managing and conducting his suit, taxed as costs, and that plaintiff have judgment in toto including the taxes sued on, interest thereon and plaintiff's commission thereon and plaintiff's attorney fee therein, aggregating the sum of $ 12,097.32; that same be a lien against defendant in favor of the State of Missouri and costs; and that plaintiff have special execution therefor."

Further specific admission and pleas in the answer can...