The State ex rel. Tompkins v. Shipman

• Decision Date: 08 October 1921
• Citation: 234 S.W. 60,290 Mo. 65
• Parties: THE STATE ex rel. W. M. TOMPKINS v. AUBREY SHIPMAN
• Court: Missouri Supreme Court

234 S.W. 60

290 Mo. 65

THE STATE ex rel. W. M. TOMPKINS v. AUBREY SHIPMAN

Supreme Court of Missouri

October 8, 1921

Writ denied.

W. V Draffen for relator, W. M. Tompkins.

(1) Section 4, Article X, of the Constitution, does not apply to a tax upon a franchise, license or privilege, and the "Secured Debt Tax Law" is a tax upon a privilege. Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339; Glasgow v. Rowse, 43 Mo. 479; Maguire v University of Missouri, 271 Mo. 359; State ex rel v. Henderson, 160 Mo. 190; State v. Bengsch, 170 Mo. 81; Kansas City v. Richardson, 90 Mo.App 450; State v. Fuel & Iron Co., L. R. A. 1915A, 185; Collieries Co. v. Commonwealth, 113 Va. 108; Bradley v. Richmond, 110 Va. 521; Saville v. Va. Railroad & Power Co., 114 Va. 444; Mutual Ins. Co. v. County of Martin, 104 Minn. 179; State v. North & Scott, 27 Mo. 483; 12 C. J. 971. (2) The "Secured Debt Tax Law" does not operate unequally upon the same class of subjects within the territorial limits of the authority levying the tax, and the classification as therein defined is within the power of the Legislature. Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 357; White v. Railroad, 230 Mo. 287; Humes v. Railroad, 82 Mo. 231; Daggs v. Ins. Co., 136 Mo. 382; Geist v. St. Louis, 156 Mo. 647; Hamman v. Coal Co., 156 Mo. 232; State ex rel. v. Henderson, 160 Mo. 216. (3) The "Secured Debt Tax Law" does not exempt property from taxation as that term is used in Section 7, Article X, of the Constitution. Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 356; State ex rel. v. Schramm, 271 Mo. 227; State v. St. Louis, Kansas & Northern Railroad, 77 Mo. 202; Russell v. Croy; 164 Mo. 97. (4) The "Secured Debt Tax Law" does not deny to anyone the equal protection of the law. Cases under Point 2; 12 C. J. 1151.

Mahan & Mahan, Wallace W. Greene, Spencer & Donnell and Charles & Rutherford for relator John T. Doneghy, Jr.

(1) Suggestions in reply to argument of respondent Shipman that the Constitution has classified in one single class all property subject to taxation. Commonwealth v. Bank, 168 Pa. St. 309; Hilger v. Moore, 182 P. 477; Wheeler v. Weightman, 96 Kan. 50. (2) Argument of respondent Shipman relative to bonds of fractional amounts overlooks fact that the Secured Debts Law is an optional law, that its constitutionality cannot be attacked by the holder of such fractional securities because he is not injured, and that the constitutional requirement of taxation "in proportion to value," as used by the framers of the Constitution, is fully complied with by the Secured Debts Law. In re Watson, 226 N.Y. 384; Danciger v. Express Co., 247 Mo. 212. (3) There is no exemption from taxation granted by the Secured Debts Law. In re Wolverine Oil Co., 154 P. 362. (4) Sections 11 and 22 of Article 10 are not violated. Brooks v. Schultz, 178 Mo. 227. (5) Similar act in force in other states for years, and decisions sustaining them. Mutual Ins. Co. v. County, 104 Minn. 179; Trustees v. Hooton, 157 P. 293; State v. Fuel & Iron Co., 188 Ala. 487, L. R. A. 1915A, p. 185; Union Trust Co. v. Detroit, 170 Mich. 692; People v. Gass, 206 N.Y. 609; Matter of Watson, 226 N.Y. 404.

Dorsey W. Shackleford, Henry W. Chalfant and Barney Reed for respondent.

(1) "When any article of property is selected for taxation it shall be taxed in proportion to its value, and not specifically." State v. North, 27 Mo. 483; Hamilton v. St. L. Co. Ct., 15 Mo. 24; Glasgow v. Rowse, 43 Mo. 489; Life Assn. v. Board, 49 Mo. 521; St. Louis v. Spiegel, 75 Mo. 145; Wire Co. v. Wollbrinck, 275 Mo. 353; Verdery v. Summerville, 82 Ga. 138; Mayor v. Weed, 84 Ga. 686; Atlanta Assn. v. Stewart, 109 Ga. 91; Wheeler v. Weightman, 96 Kan. 65; Ewert v. Taylor, 160 N.W. 802; Reelfoot v. Dawson, 34 L. R. A. 725; Sec. 4, Art. 10, Mo. Const. (2) The Legislature has no power to exempt property from taxation, except such as is mentioned in Section 6, Article X, of the Constitution. This inhibition precludes commutations and partial exemptions, as well as exemptions in toto. Sec. 7, Art. 10, Mo. Const; Life Assn. v. Board, 49 Mo. 512; Georgia v. Savannah, 109 Ga. 63; Atlanta v. Stewart, 109 Ga. 80; Hogg v. Mackay, 23 Ore. 339; State v. Ins. Co., 100 N.W. 405; State v. Ins. Co., 99 N.W. 37; Huntington v. Worthen, 120 U.S. 97; Louisiana Cotton Co. v. New Orleans, 31 La. Ann. 440. (3) Even if it should be held that the taxes levied by the act under consideration were in fact excise taxes, which we deny, still said act would be void, because of exemptions contained in the last clause of Section 13138 thereof. Secs. 7, 22, Art. 10, Mo. Const.

GRAVES, J. J. T. Blair, C. J., not sitting; D. E. Blair, J., concurs in result.

OPINION

In Banc.

Mandamus

GRAVES J.

Original action in mandamus. The petition, by stipulation, was taken as and for our alternative writ, and return was duly made thereto. Relator moved for judgment on the pleadings. The cause was then taken as submitted on briefs to be filed later. Thereafter some friends of the court were permitted to file briefs. The petition succinctly states most of the facts, and reads:

"To the Honorable Judges of said Court:

"The petition of W. M. Tompkins respectfully represents that one Aubrey Shipman is now and was at all the times mentioned in this petition the duly elected, qualified and acting Recorder of Deeds within and for the County of Camden, in the State of Missouri; that this petitioner does now and did at all the times mentioned in this petition reside in said County of Camden, in the State of Missouri.

"That on the 30th day of April, 1921, one John M. Cooper did sign, seal and deliver unto this petitioner his bond and obligation for the payment of money, to-wit, fifty dollars, with interest thereon at the rate of eight per cent per annum from the date thereof, which bond and obligation for the payment of money, by its terms, is not payable within one year from the date of issue thereof, and the payment thereof is not and was not secured by the deposit or pledge of any collateral security, nor by a mortgage or deed of trust wholly or in part upon real estate; that on the 2nd day of May, 1921, this petitioner took said bond to the office of the Recorder of Deeds of said County of Camden, in the State of Missouri, and offered to pay to the said Aubrey Shipman as such Recorder of Deeds for said county, for the account of the general revenue fund of the State, a tax at the rate of ten cents on each one hundred dollars or fraction thereof of the face value of said bond and obligation for the payment of money, to-wit, the sum of ten cents, and demanded that the said Shipman, as such Recorder of Deeds accept said sum and affix stamps of the proper denominations, equal in face value to the amount of the tax on said bond and obligation for the payment of money, to-wit, the sum of the cents, and further demanded that said Shipman, as such Recorder of Deeds, cancel said stamp or stamps.

"Your petitioner further states that notwithstanding said tender and demands by this petitioner, the said Shipman, as such Recorder of Deeds, refused to receive said sum and to affix and cancel the said stamps, and stated that he would continue to so refuse. Petitioner further states that unless and until petitioner shall have paid the above-mentioned tax he is liable to and will be compelled to pay in lieu thereof a tax under the general revenue laws of this State in a sum far greater than the amount of the tax above mentioned.

"Petitioner further states that he is remediless in the premises by or through ordinary process or proceedings at law, and he, therefore, prays this Honorable Court to award against said Aubrey Shipman, as such Recorder of Deeds of the County of Camden, in the State of Missouri, a writ of mandamus, commanding and requiring him to accept payment of said tax and to affix to said bond and obligation for the payment of money, said stamps and to cancel said stamps, in accordance with the provisions of Chapter 119, Article 20, Revised Statutes of the State of Missouri of 1919; and for such other process, orders and remedies as to the court may seem meet and proper."

The return admits that all the facts stated in the petition are true, but adds the following material facts:

That the relator at all times mentioned in his petition, was, and now is, a resident of the village of Linn Creek, in the County of Camden and State of Missouri; that the rates of taxes authorized by law now levied upon real and personal property in said village of Linn Creek aggregate $ 2.43 on each $ 100 valuation; that a 'secured debt' as defined in Article XX, Chapter 119, of the Revised Statutes of 1919 of the State of Missouri, which matures a greater length of time after payment of taxes thereon, under said Article XX, is not of less value, than another 'secured debt' of the same amount and like character in every respect, except that it matures in a short time after the payment of taxes thereon under said Article XX."

The return then attacks from many angles the constitutionality of the "Secured Debt Tax Law" upon which relator relies for his cause of action. Such of these attacks as are deemed pertinent will be noticed in the course of the opinion. By filing a motion for judgment on the pleadings, relator admits all well pleaded facts in the return, and hence the inclusion of those facts, supra. This outlines the case.

I. The statute before us in this case is Article XX, Chapter 119, Revised Statutes 1919. This is the Act of 1917, Laws 1917, page 539. By it the General Assembly undertook to select the following three subdivisions of property, and place them into a class for taxation, viz.:

"(1) Any and all bonds, notes, debentures or obligations for the payment of money, whether forming a...