The State ex rel. Greene County v. Gideon
| Decision Date | 15 March 1919 |
| Parties | THE STATE ex rel. GREENE COUNTY, Appellant, v. J. J. GIDEON, Mayor, and E. F. JAMES et al., Commissioners |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Guy D. Kirby, Judge.
Affirmed.
Warren L. White and Oliver J. Page for appellant.
(1) Of the two conflicting provisions of the Act of 1917, the one which provides for the payment to county of the fixed sum of $ 400 is the law, because, first, it is the last in order. Second, it was put into the act as an amendment after the introduction of the bill. State ex rel. v. Gideon, 273 Mo. 79. Third. The condition of the existing law should be considered in construing new statutes. Under the prior law (Laws 1915, p. 345), the State and county received nothing from dramshop licenses in Springfield, and the obvious intention of the Legislature was to remedy that defect. State ex rel. v. McQuillin, 246 Mo. 534; Grimes v. Reynolds, 184 Mo. 688. (2) The Act of 1917 does not violate Section 28 of Article 4 of the Constitution. The distribution of funds collected by the city is clearly related to the matter of city government and is within the subject as expressed in the title. Hannibal v. Marion County, 69 Mo. 571; Elting v. Hickman, 172 Mo 237; Barnes v. Kirksville, 266 Mo. 270; State ex rel. v. Gordon, 261 Mo. 631, 639; State ex rel. v Taylor, 224 Mo. 393, 468; State ex rel. v Clayton, 226 Mo. 292. (3) Dramshop licenses are not taxes within the meaning of the Constitution but are an exercise of the police power. Laws providing for licensing dramshops are not subject to Article 10 of the Constitution, which relates to taxation. State ex rel. v. Hudson, 78 Mo. 302; State v. Distilling Co., 236 Mo. 219; Winona v. Whipple, 24 Minn. 61; State ex rel. v. Burton, 266 Mo. 712; Elting v. Hickman, 172 Mo. 237, 258. (4) The provision of the Act of 1917 that the State and county shall receive a part of the dramshop licenses collected by the city is not an unlawful grant of public money to an individual, association or corporation in violation of Sections 46 or 47 of Article 4 of the Constitution. Funds so collected do not belong exclusively to the municipality. It is competent for the Legislature to make the municipality an agent of the State for the purpose of collecting such revenue. A county is not an "individual, association or corporation" within the clauses of the Constitution forbidding a grant of public money to "any individual, association or corporation." State ex rel. v. Burton, 266 Mo. 721; State ex rel. v. Gordon, 261 Mo. 641; State ex rel. v. Taylor, 224 Mo. 468; Elting v. Hickman, 172 Mo. 258; State ex rel. v. County Court, 128 Mo. 427; Winona v. Whipple, 24 Minn. 61; State v. Spokane, 25 P. 903; County v. Aberdeen, 31 N.W. 735; Sibley County v. Gibbon, 131 N.W. 786; 23 Cyc. 151.
Fred A. Moon for respondents.
(1) The Act of 1917, Laws 1917, p. 357, is unconstitutional because it conflicts with that provision of the Constitution which reads, "No bill shall contain more than one subject which shall be clearly expressed in its title." Wolf v. Taylor, 13 So. 688; Thompson v. Luverne, 29 So. 326; Douglas v. Hays, 49 A. 372; State ex rel. v. Revelle, 165 S.W. 500; Williams v. R. R. Co., 233 Mo. 676; State ex rel. v. Gordon, 188 S.W. 576; Shivley v. Lankford, 174 Mo. 544; St. Louis v. Wortman, 213 Mo. 138. Courts take judicial notice of fact that the members of the Legislature, on account of the great number of bills introduced and the limited time in which they have to consider the same, are forced to rely on the title of the bills for information as to their contents. State v. Rawlings, 232 Mo. 558. Even though the subject-matter of a certain provision of an act be germane to the subject specified in the title, still it is not "clearly expressed in the title" if it be misleading. State v. Rawlings, 232 Mo. 556. The history of the development of the dramshop act shows the licensing and taxing of dramshops for county and State purposes is a power that has been consistently vested in the county court by provisions contained in that act. R. S. 1855 to 1909; Laws 1917, p. 317. Hence the dramshop act had become a separate subject of our statutory law. Naturally then, a member of the Legislature would expect to find any provision of law which had as its purpose the fixing the amount of the State and county dramshop license tax and providing for its collection under a title which purported to amend the dramshop act, and obviously not in an act the title of which gave notice of an intention to amend an act, providing for the government of cities. That the latter title would be misleading is perfectly apparent. (2) The Act of 1917, Laws 1917, p. 357, is unconstitutional because violative of Sections 1 and 10 of Article 10 of the State Constitution, in this: It levies a direct tax upon the city of $ 400 per year for each saloon license issued. That a dramshop license tax is not a tax within the meaning of the foregoing provision of the Constitution does not preserve the constitutionality of the provision of the act in question, for the reason that the tax is not on the dramshop, but is on the city. In other words, it is not a dramshop tax because not levied on the saloon, but on the city. Courts must not go contrary to the plain meaning of words even to preserve a statute from unconstitutionality. Austin v. Cahill, 99 Tex. 172; Sec. 8057, R. S. 1909; 36 Cyc. 1115; State ex rel. v. Gammon, 73 Mo. 421; State v. Riley, 203 Mo. 187; Henry v. Evans, 97 Mo. 55; Martin v. Hunter, 14 U.S. 326; Johnson v. Railroad Co., 196 U.S. 1. (3) Or, if not a tax, then the Act of 1917 is a grant of the city's money (public money) by the Legislature, contrary to Section 46 and 47 of Article 4 of the Constitution. State v. Court, 142 Mo. 575. A county is a municipal corporation. Rathbone v. Hopper, 45 P. 610; Ex parte Selma & G. R. Co., 45 Ala. 696; Railway Co. v. Porter, 74 Cal. 261; West Plains Tp. v. Sage, 69 F. 943; In Re Dowlen, 36 Minn. 430. (4) Where there is an irreconcilable conflict in meaning between two provisions of the same act, the one destroys the other and renders nugatory the act. In Re Hendricks, 57 P. 965.
OPINION
In Banc
The County of Greene, as relator, brought this action by mandamus in the Circuit Court of Greene County against the respondents herein, who constitute the mayor and the commissioners, respectively, of the city of Springfield, said city being under a commission form of government. Upon a trial nisi plaintiff lost, and after the conventional procedure has appealed.
The facts of the case are few and simple. In 1917 the Legislature amended a certain section of the chapter of the Revised Statutes of Missouri which governs cities of the second class, in such wise, it is averred and contended by appellant, as to require cities of the second class -- such as the city of Springfield is -- to pay to the county wherein such a city is located the sum of $ 400 per annum for every dramshop license issued. This action is brought by Greene County for the purpose of compelling respondents to audit and pay to that county the sum of $ 5900, which is caeteris paribus its proportionate part of all the dramshop license taxes which were collected by the city of Springfield during the period embraced in this controversy. Respondents having refused to pay the above sum of $ 5900, which is conceded to be correct if the act under which the same is demanded is valid, Greene County instituted this action and, as stated, having lost below, has appealed.
The defenses, among others urged by respondents, as excusing their refusal to pay the amount demanded, are that the act under which appellant bottoms its demand for payment is unconstitutional. The grounds of unconstitutionality of the Act of 1917 so urged by respondent are, (a) because the act is in conflict with Section 28 of Article 4 of the Constitution, which provides that "no bill shall contain more than one subject, which shall be clearly expressed in its title"; (b) because said act violates Sections 1 and 10 of Article 10 of the Constitution, in that it levies a direct tax upon cities of the second class of $ 400 per year for the benefit of the county in which a city of the second class is located, for each and every saloon license issued by such city, and (c) because, if such levy of the tax aforesaid is not in fact a tax, then the Act of 1917 is a grant of the public money of the city by the Legislature to the county in which the city is located, contrary to Sections 46 and 47 of Article 4 of the Constitution of Missouri.
Other contentions, as forecast, are made, but since one of these at least has already been decided against respondent, and as in the view we take of the case mention of others is unnecessary, we content ourselves with the above recital of respondents' contentions. We think the above facts, together with such others as we shall find it necessary to refer to in our discussion of the points made in the case, will be sufficient to an understanding thereof.
Appellant bottoms its right to demand from the city of Springfield payment of the sum here in dispute upon Subdivision 40 of Section 8 of "An Act to amend an act approved on the 26th day of March, 1915, entitled, 'An act to amend section 8 of an act, approved on the 25th day of March, 1913 entitled, "An act to repeal article 3 of chapter 84 of the Revised Statutes of Missouri of 1909, with all amendments thereto, said article being entitled 'Cities of the second class,' and to enact in lieu thereof a new article providing for the government of cities of the second class,"' by repealing subdivision fortieth of said act and enacting a new subdivision in...
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