The State ex rel. Kersey v. Western Union Telegraph Company
| Decision Date | 10 June 1924 |
| Docket Number | 24157 |
| Citation | 263 S.W. 419,304 Mo. 207 |
| Parties | THE STATE ex rel. A. PARKER KERSEY, Collector of Revenue, v. WESTERN UNION TELEGRAPH COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court; Hon. Sterling McCarty Judge.
Reversed and remanded.
Ward & Reeves for appellant.
(1) The record testimony shows that the plaintiff has no cause of action whatever, and the trial court therefore erred in finding for the plaintiff for any sum whatever. The four separate and distinct orders of the county court offered in evidence by the plaintiff, and which the county clerk testified were all the orders made respecting the levy of taxes for the year 1920, show that there was never any levy made upon defendant's distributable property in Pemiscot County. (a) "Laws for the assessment and collection of the revenue should be construed with a reasonable strictness." Noll v. Morgan, 82 Mo.App. 118; Kansas City v. Railway, 81 Mo. 285; State v. St L. County Ct., 13 Mo.App. 53; Mfg. Co. v. St Louis, 238 Mo. 279; State v. Railway, 149 Mo. 645; Railroad v. Apperson, 97 Mo. 300. (b) Telegraph companies are required to be assessed the same way and manner as railroad companies, and all the provisions of law with reference to the assessment and collection of taxes as to railroad companies apply to telegraph companies. Article 14, Ch. 19, R. S. 1919; Sec. 13056, R. S. 1919. (c) The county court must levy the taxes against railroad, telegraph and telephone companies and a legal levy is a necessary prerequisite to a valid railroad tax book. No tribunal or officer other than the county court, can make this levy. Secs. 13030, 13056, R. S. 1919; State ex rel. v. Railway, 135 Mo. 618; Railroad v. Apperson, 97 Mo. 300; City of Kansas v. Railway, 81 Mo. 285; Yost v. County, 236 U.S. 50; Seibert v. Lewis, 122 U.S. 284. (d) A proper extension of the taxes on a book to be known as the railroad tax book is a necessary prerequisite to their collection. State ex rel. v. Railway, 117 Mo. 1; State ex rel. v. Railway, 135 Mo. 77. (e) When these prerequisites are complied with, that is, a proper and valid levy by the county court and a proper and valid extension by the county clerk in the railroad tax book, then, and not until then, are the taxes legally assessed and levied. And thereupon such taxes become a lien upon the property in the county, which property must be described in the assessment. Secs. 13036, 13042, R. S. 1919; State ex rel. v. Ry. Co., 114 Mo.App. 1; State ex rel. v. Davis, 131 Mo. 457. (f) Neither the orders of the county court, nor the railroad tax-bill sued upon contain any description whatever of the defendant's distributable property in Pemiscot County. That is, none of them contained the number of miles or any other description of defendant's distributable property in said county, nor do any of them state or show the value of defendant's distributable property in the county. True, the petition, as amended, does contain this description, that is, the number of miles and the value of defendant's distributable property in Pemiscot County, and in some of its municipal subdivisions; but the petition in this necessary averment must be supported by the evidence, that is, the description as set out in the assessment and levy (which is the order of the county court), in the railroad tax book and in the tax-bill, must sustain and prove the description as laid in the petition. State ex rel. v. Railway, 101 Mo. 136; Railway v. Apperson, 97 Mo. 300; State ex rel. v. Railway, 135 Mo. 618; State ex rel. v. Burroughs, 174 Mo. 700; State ex rel. v. Railway, 114 Mo. 1; State ex rel. v. Liney, 192 Mo. 49; State ex rel. v. Williams, 216 S.W. 535; State ex rel. v. Davis, 131 Mo. 457; Secs. 13029-32, 13036, 13040-42, R. S. 1919. (2) The finding and judgment of the trial court was excessive, and some of the items of taxes for which recovery was permitted cannot stand. (a) The amounts attempted to be levied, or rather the amount sued for herein, for which amounts judgment was entered against defendant, are: road tax, twenty cents; special road and bridge tax, twenty-five cents; county tax, forty cents, making a total of eighty-five cents on the $ 100 valuation, which is ten cents above the constitutional limit. State ex rel. v. Railway, 270 Mo. 261; Board of Com. v. Peter, 253 Mo. 520; State ex rel. v. Railway, 276 Mo. 441; State ex rel. v. Railway, 251 Mo. 134. (b) The school tax sued for is void because the uncontradicted evidence is that the rate obtained by the county court, to-wit, $ 1.46 on the $ 100 valuation, was obtained by including excessive levies of five cents to forty cents on the $ 100 valuation over and above the constitutional limit in nineteen of the fifty-three school districts in the county. Three of these districts were city or town districts and the constitutional maximum was 100 cents, and in one of these the levy was 120 cents; in one 115 cents, and in the other 140 cents. The other sixteen were country districts and the constitutional limit was sixty-five cents, and the levy ranged from seventy cents to 100 cents. The rate thus obtained by the county court is illegal and void as to all of these school taxes. This rate, to-wit, $ 1.46, attempted to be collected on the defendant's property was ascertained by adding together these unconstitutional rates, as shown by the testimony of the county clerk, and in conformity with Sec. 13031, R. S. 1919. The courts have no authority to correct these rates, and the whole levy for school taxes is void. Harrington v. Hopkins, 288 Mo. 1; Jacobs v. Cauthorne, 238 S.W. 443. State ex rel. v. Railway, 149 Mo. 635; State ex rel. v. Railway, 135 Mo. 618; Harrington v. Hopkins, 231 S.W. 263. (c) The state board is required to apportion the aggregate value of the property of the company in the State to each county, municipal township, city or incorporated town in which the property is located, according to the ratio which the number of miles of wire in such county, municipal township, city or incorporated town shall bear to the whole length in the State. Secs. 13024, 13056, R. S. 1919. And this apportionment giving the number of miles and value in each county and local taxing district, must be certified by the state board to the county courts. Section 13026. Cities and towns are also required on or before August 10th of each year to certify to the county courts the rates levied for municipal purposes for that year. Section 13029. After the receipt of these certificates the taxes are required to be levied by the county court. The certificate from the state board offered in evidence by the plaintiff in this case does not show any distributable property of the defendant in Little Prairie Special Road District. In other words, all of the distributable property of the defendant in Pemiscot County is assessed at a rate of forty cents for this local road district, and the defendant is charged with payment of the resulting tax, though less than half of the distributable property in Pemiscot County is located in Little Prairie Special Road District. There can therefore be no recovery for alleged taxes due Little Prairie Special Road District. Sec. 13029, R. S. 1919; State ex rel. v. Railway, 101 Mo. 144; State ex rel. v. Railway, 135 Mo. 77; State ex rel. v. Railway, 135 Mo. 618. (d) There was a certificate filed by the city of Caruthersville, but the county court did not make any levy of taxes thereon. All the orders of the county court were introduced and the clerk testified that he extended the taxes on the railroad tax book under the authority of these orders, which are set out in the abstract. As there was no order of the county court levying the taxes for Caruthersville, the clerk of the county court had no authority to extend them on the tax book and his act was a nullity. Kansas City v. Railway Co., 81 Mo. 285; State v. Railway, 135 Mo. 618; Railway v. Apperson, 97 Mo. 300.
N. C. Hawkins for respondent.
(1) Defendant alleges that "there never was any levy made upon defendant's distributable property in Pemiscot County," for which reason it asserts the judgment should have gone for defendant. On November 5, 1920, the county court made an order, as follows: At the time this order was made the State Tax Commission had returned to the county court a statement of its proceedings, wherein was found the distributable value of defendant's property for Pemiscot County and such paper was on file in the county court at the time this order was made. The defendant had no other property of any kind. This order could not relate to any other than the distributable value of railroad telegraph and telephone property. The property was not required to be described in the order itself, neither was it necessary to call by name the railroad, telegraph and telephone companies to which it would apply. So far as the order itself was concerned, it was alright. Orders levying a tax do not name the landowners or describe their lands. This order was not required to name the defendant or describe the property. (a) Appellant says that "a proper extension of the taxes on the railroad tax book is a necessary prerequisite to their collection." There was nothing wrong with the extension. The taxes...
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