Livingston County v. Hannibal & St. Joseph Railroad

Napton, Judge, delivered the opinion of the court. This cause was decided on a demurrer to the petition, which was sustained. It would subserve no useful purpose to recite the petition or its numerous counts, which occupy twenty closely printed pages of the record. The object of the petition is to recover the amount of the county tax and school tax, levied on the road under the act of March 11,1871, the State auditor having assessed the road at $587,328 between the years 1861 and 1872. The demurrer asserts that the charter of the road exempts the road from all county taxation ; that the act of the General Assembly in 1852 is a contract, and exempts the defendant from taxation except as is specified in the 3rd section of said act, and that the school tax is in violation of the provision of the Constitution of Missouri, which requires all property to be taxed in proportion to its value. This demurrer was sustained and the case is brought here by appeal. The only important question presented is whether the Han. & St. Jo. R. R. is exempt from county taxes and from school taxes. The case of Han. & St. Jo. vs. Shacklett, (30 Mo., 550); State vs. Han. & St. Jo. R. R. (37 Mo., 265); State to use of, etc. vs. Shacklett, (Id., 80) and City of St. Jo. vs. Han. & St. Jo. R. R. Co., (39 Mo., 476.) are referred to as conclusive of the questions presented bjr the demurrer. We have no disposition to depart from the points decided in any of these cases. Whether decided properly or not, the corporation now sued had a right to assume that the construction therein given to their charter would be adhered to, and upon the faitli of these decisions stock may have been purchased. [519] It was conceded in all these cases, that the legislature could levy a State tax on this road, after the act of September 20, 1852, which was accepted by the company. The form in which this tax might be ascertained and levied was not deemed material in the case of Bailey, Seligman, &c. vs. Pac. R. R. Co., (U. S. Sup. Ct.), nor was it considered essential by this court in the case of the State vs. Han. & St. Jo. R. R. Co., decided at the present term. And in the case of Han. & St. Jo. R. R. vs. City of St. Joseph, (39 Mo., 476), it was held that a city tax on the railroad was valid, on the ground that municipal taxation for local purposes was not within the exemption from county taxes. The original exemption of this road from county taxes has never been rescinded by the acts of the parties. The demurrer, therefore, in regard to so much of the petition as related to county taxes, was properly sustained. In regard to school taxes, they may be considered as originating since the charter ; and, therefore, nothing was said in it concerning them. Like the municipal taxes of St. Joseph, in 39 Mo., 176, they may be regarded as not within the exemption. It is, however, urged that the 3rd section of the act of 1871, so far as it has been applied to school taxes, is retrospective, and therefore prohibited by our State Constitution. This section does not undertake to subject to taxation property, which at the date of the ordered assessment was not liable to taxation ; but merely to declare that in case property, which has been subject to taxation prior to the passage of the act, has escaped taxation either through the inattention of the owner or of the county officers, these back taxes shall be assessed and collected. It is only applying to railroad property the same system of revenue collections which applies to all other property in the State. It does not operate retrospectively in the sense of this word, as used in the Constitution. The mode of assessment which seems.from the statement in the petition to have been adopted in this case, under the 13th section of the act of March 10th, 1871, is undoubtedly objectionable and not authorized or intended to be- authorized by [520] that section. The statement in the petition is, “that the said County Court at the said meeting thereof, held at the court house in said county, on the 5th day of August, 1872. from the returns in the office of the clerk of said County Court, ascertained the average rate of taxation for school purposes on each $100 worth of property in said county, as the same had been listed and assessed, levied by the several township school boards, trustees, directors and other proper authorities of the township in said county in which respondent’s property was situate, and the said County Court from said returns in said clerk’s office ascertained, determined and declared that the average rate of taxation levied for school purposes on each $100 worth of property, in such townships, districts and sub-districts, for each of the several years on the respective amounts stated in said court.” It is not easy to determine exactly what is meant by this allegation. The phraseology is obscure, and that of the 13th section is perhaps equally so, but we do not suppose it was intended that the road should pay school taxes in any other school districts, except such as it passed through, or. in which the company owned property. A person or corporation owning property in one school district is not taxed to support schools in any other district, although such other district may be in the same county. The legislature had no intention of making railroad companies pay any taxes except such as individual citizens had to pay on the same amount of property. It is stated by counsel that this county has twelve school districts, and the road passes through only four of the twelve. It was not designed that the road should pay taxes in all the districts of the county, but only in such districts wherein its property was located. This is clear, and if the 13th section was construed to authorize a taxation of the roads in districts where there was no property of the company, the construction was, we think, erroneous. Or, if the average spoken of was determined by the rate of taxation for schools in all the twelve schuol districts, that would be equally erroneous. The [521] average should be determined by reference' only to the four districts through which the road passed. This is made quite apparent in the act of March 24, 1873. The first section of that act expressly declares, what indeed was manifestly intended by the act of 1871, “ that railroads shall be subject to taxation for State, county or other municipal or local purposes to the same extent as the property of private persons.” The 12th section of the act of 1873 very clearly provides for the mode of assessing school taxes on railroad corporations, and is in conformity to the construction we have supposed should be given to the act of 1871. A point has been made, that this suit should have been brought under the act of 1873, in the name of the State ; but we think the suit was properly brought in the name of the county. An examination of section 17, of the act of 1873, shows that the remedy therein provided applied only to taxes levied under the provisions of that act; and did not affect the right to sue in the name of the county, for taxes assessed under the act of 1871. The judgment is reversed and the cause remanded; the other judges concur.