The State ex rel. Hirni v. The Missouri Pacific Railway Company

• Decision Date: 18 June 1894
• Parties: The State ex rel. Hirni, Collector, v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

27 S.W. 367

123 Mo. 72

The State ex rel. Hirni, Collector, v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

June 18, 1894

Appeal from Bates Circuit Court. -- Hon. James H. Lay, Judge.

Reversed.

R. T Railey for appellant.

(1) The intent of the framers of the constitution should govern in interpreting its provisions. Cooley's Const. Lim. [6 Ed.], 69. (2) In determining such intent it is proper to consult the status of public affairs at the time and the causes which led to its adoption. (3) The constitutional limitation prescribed in section 11 of article 10 applies to townships as fully as if in terms they had been designated therein. State, etc., v. Brassfield, 67 Mo. 331; see, also, State, etc., v. Columbia, 111 Mo. 365; Barnard v. Knox Co., 105 Mo. 382; Black v McGonigle, 103 Mo. 192; Arnold v. Hawkins, 95 Mo. 569; Book v. Earl, 87 Mo. 246; Center Bldg Co. v. St. Joseph, 108 Mo. 304. (4) If the court should hold that there is no limitation in our constitution on the taxing power of township organizations, except that provided by the legislature, then we insist that the taxes thus collected are special and can only be collected by complying with the "Cottey" law, as set forth in sections 7653 and 7654 of the Revised Statutes of 1889. Section 7656 construes the preceding section and we think covers the case at bar. If it is a special tax, as contended for, then, under the agreed statement of facts, the appellant is entitled to a judgment herein. State ex rel. v. Railroad, 87 Mo. 236; State ex rel. v. Hager, 91 Mo. 452.

C. F. Boxley, Prosecuting Attorney, and C. A. Denton for respondent.

(1) Townships in counties not under township organization are mere geographical subdivisions of a county and in no sense a corporation, while townships in counties under township organization, are corporate bodies. Webb v. Lafayette Co., 67 Mo. 353; R. S. 1889, sec. 8429. (2) The constitution of Missouri (1875) expressly empowers the legislature to enact such laws, as shall be deemed necessary to enable counties, to adopt township organization. Sec. 8, art. 9, Const. Mo. 1875; (Compare) sec. 5, art. 10, Const. Ill. 1870. (3) A township in a county that has adopted township organization as provided by the acts of the general assembly of this state, chapter 162, Revised Statutes, 1889, is a municipal corporation, within the meaning and intent of sections 1 and 10, article 10, of the constitution of this state. R. S. 1889, sec. 8429; Railroad v. McCleave, 108 Ill. 368; State ex rel. v. Leffingwell, 54 Mo. 458; State ex rel. v. Board, 112 Mo. 213; Wilson v. Board, 133 Ill. 477; 27 N.E. 203; 15 Am. and Eng. Encyclopedia of Law, pp. 953, 954, and notes; Agr. Soc. v. Houseman, 81 Mich. 609; 46 N.W. 15. (4) A township in a county under township organization, as a municipal corporation, is empowered under general laws to levy and collect taxes, for its corporate purposes. Secs. 1, 10, art. 10, Const. Mo. 1875; (Compare) sec. 9, art. 9, Const. Ill. 1870; Railroad v. McCleave, 108 Ill. 368; Wright v. Railroad, 120 Ill. 544; 12 N.E. 240; Macon Co. v. United States, 134 U.S. 332. (5) The fact that the county court may have levied the taxes here sought to be recovered, detracts nothing from their validity. R. S. 1889, secs. 8482, 7730, 7731; Railroad v. McCleave, 108 Ill. 368; State ex rel. v. Byers, 67 Mo. 706; State ex rel. v. Clerk, 85 Mo. 156. (6) The legislature of this state has the power and authority, unless expressly restrained therefrom by the constitution, to create municipal corporate townships and provide for their maintenance. Cooley on Const. Lim. [5 Ed.], pp. 105, 106, 228, 229; Wilson v. Board, 133 Ill. 477; 27 N.E. 203; Harris v. Board, 105 Ill. 445; 44 Am. Rep. 808. (7) In construing the constitution of a state, it is to be presumed that language has been employed with sufficient precision to convey the intent of the people, who adopted it, and, unless an examination demonstrates that the presumption does not hold good in the particular case, nothing will remain, except to enforce it. Possible, or even probable, meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere. Cooley on Const. Lim. [5 Ed.], 68; People v. Purdy, 2 Hill, 35; Hamilton v. Co. Court, 15 Mo. 3; Murphy Glover Test Oath Cases, 41 Mo. 339.

Brace J. Black, C. J., Sherwood, Macfarlane and Burgess, JJ., concurring. Barclay and Gantt, JJ., dissenting.

OPINION

In Banc

Brace, J.

This is an action by the collector of Bates county to recover unpaid taxes for the years 1889 and 1890 in which the plaintiff obtained judgment in the trial court and the defendant appeals. Bates county is under township organization. The assessed value of the property in that county on which taxes were levied for those years was over $ 6,000,000 and under $ 10,000,000. In addition to a county tax of fifty cents on the $ 100 levied upon the property of the defendant in those years, there was levied an additional tax of twenty cents on the $ 100 called a township tax. The former the defendant paid, but refused to pay the latter, to recover which this suit is brought.

The facts are agreed to. The question of difference is as to the authority of the county court of Bates county to levy the above named township tax amounting to the sum of $ 654.50. The plaintiff contends that the county court has authority to levy for county purposes not exceeding forty cents on the $ 100 valuation, and also the right to levy a township tax at a rate not to exceed twenty cents on the $ 100 valuation. The defendant contends that the township tax sued for is a tax for county purposes within the meaning of the constitution, and the county court, having levied forty cents on the $ 100 valuation, for county purposes, thereby exhausted its power under the constitutional limitation and the tax sued for, being in excess of forty cents on the $ 100 valuation, levied for said purposes, is void.

Under the township organization act the moneys necessary to defray the township charges of each township are required to be levied of the taxable property in such township in the manner prescribed in the general revenue law for state and county purposes (R. S. 1889, sec. 8478), and to this end the township board of directors is required to make out an account of the amount of money necessary to defray the expenses of the ensuing year, prior to the meeting of the county court at which the assessment for county purposes is to be made; said account signed by the president of the board and attested by the clerk is to be filed with the clerk of the county court on or before the first day of said court, who shall cause the same to be placed upon the tax books of said township, "provided that said expenses shall not, together with the amount levied for road purposes and special bridge tax, exceed in any one year twenty cents on the one hundred dollars valuation." Section 8482.

Taxes to meet such charges are levied by the county court. Sections 7660 and 7731. The purposes for which they are raised and to which they must be applied are township expenses, and for roads and bridges. The township expenses being compensation of township officials, and incidental expenses in discharging official functions which in counties not under township organization are discharged by the county officials, and all the charges are such as in counties under normal organization would come under the head of expenditures for county purposes. Prior to 1872 township organization was unknown to our laws. Townships had no corporate existence; they were "mere geographical divisions of a county, made principally for election purposes, in each of which, the people might elect a constable and two justices of the peace." Webb v. Lafayette Co., 67 Mo. 353. The first act of the legislature providing for such organization was approved March 18, 1872. Sess. Acts, 1872, p. 180. In the following year that act was repealed and a new one adopted. Sess. Acts, 1873, p. 94.

Prior to the adoption of the latter act, which was in effect a revision of the former one, the opinion of the judges of this court was solicited by a resolution of the house of representatives as to the constitutionality of the act, in answer to which a majority of the judges replied that "Counties are subdivisions of the state for governmental purposes, and there can be no doubt about the constitutional power of the general assembly to create, alter, abolish and regulate them as expediency may demand, so that no vested rights are interfered with. This township organization law contains no provision, so far as we are able to see, prohibited by the constitution." 55 Mo. 295. While by its provisions townships were made bodies corporate in such counties as might adopt it, their powers were limited simply to the discharge, through township officers, of some of those governmental functions within its borders, which in other counties were exercised by the county as a whole through county officers. The autonomy of the county government was not disintegrated or destroyed thereby. Some of its powers, duties and burdens were simply distributed to its townships. In other words, townships under this organization existed, not for any separate and independent corporate purposes, but simply as integral parts of a county exercising a part of the functions of the county government. The county sustained the same relation to the state at large as before. The townships existed only for the purpose of county government. At the time of the adoption of the constitution of 1875, this scheme of township organization was a new and untried experiment, with which the people of the state were, as a rule, unfamiliar. The idea of a township as...