State ex rel. Hirni v. Missouri Pacific Railway Co.

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 hot to exceed twenty cents on the $100 valuation. The — 76 — 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.77 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 — 77 — 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 govermental 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 sim — 78 — ply 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 a separate and independent municipal corporation with power to levy taxes had no place in the public mind. But the idea of a township having the power, by virtue of an act of the general assembly, to contract a debt which the county court was required to provide for by a levy of taxes upon the property within said township had become painfully prominent through the operation of the township act of 1868 (Sess. Acts, p. 92), and of special charters of some railroad corporations. It will be well to keep these facts in mind when considering the constutional provisions decisive of this controversy. Prior to the constitution of 1875, the power of the legislature to impose taxes was practically unlimited. It is unnecessary to recall the history of the times which led to the call of the convention which framed it, to impress the mind with the fact that one of the great purposes for which it was assembled was to put a check upon that power. It stands out upon the face of the instrument as the most novel and significant fact in it, and the purpose to limit that power whether exercised immediately for state purposes, or mediately for local purposes is alike apparent. Section 8 of article 10 fixes the rate which is not to be exceeded for state purposes, and section 11 of the same article, the rates that are not to be exceeded for local purposes. That section reads as follows: — 79 — “Sec. 11. Bates for local purposes — limits—how increased for schools and erecting public buildings, — Taxes for county, city, town and school purposes may be levied on all subjects and objects of taxation; but the valuation of property therefor shall not exceed the valuation of the same property in such town, city or school district for state .and county purposes. For county purposes the annual rate on property, in counties having $6,000,000 or less, shall not, in the aggregate, exceed fifty cents on the hundred dollars valuation; in counties having $6,000,000 and under $10,000,000, said rate shall not exceed forty cents on the hundred dollars valuation; in counties having $10,000,000 and under $30,000,000, said rate shall not exceed fifty cents on the hundred dollars valuation; and in counties having $30,000,000 or more, said rate shall not exceed thirty-five cents on the hundred dollars valuation. For city and town purposes the annual rate on property in cities and towns having thirty thousand inhabitants or more shall not, in the aggregate, exceed one hundred cents on the hundred dollars valuation; in cities and towns having less than thirty thousand and over ten thousand inhabitants, said rate shall not exceed sixty cents on the hundred dollars valuation ; in cities and towns having less than ten thousand and more than one thousand inhabitants, said rate shall not exceed fifty cents on the hundred dollars valuation; and in towns having one thousand inhabitants or less, said rate shall not exceed twenty-five cents on the hundred dollars valuation. For school purposes in districts, the annual rate on property shall not exceed forty cents on the hundred dollars valuation : Provided, the aforesaid annual rates for school purposes may be increased, in districts formed of cities and towns to an amount not to exceed one dollar on the hundred dollars valuation, and in other districts to — 80 — an amount not to exceed sixty-five cents on the hundred dollars valuation, on the condition that a majority of the voters who are taxpayers, voting at an election held to decide the question, vote for said increase. For the purpose of erecting public buildings in counties, cities or school districts, the rates of taxation herein limited may be increased when the rate of such increase and the purpose for which it is intended shall have been submitted to a vote of the people, and two-thirds of the qualified voters of such county, city, or school district, voting at such election, shall vote therefor. The rate herein allowed to each county shall be ascertained by the amount of taxable property therein, according to the last assessment for state and county purposes, and the rate allowed to each city ór town by the number of inhabitants according to the last census taken under the authority of the state, or of the United States; said restrictions as to rates shall apply to taxes of every kind and description, whether general or special, except taxes to pay valid indebtedness now existing, or bonds which may be issued in renewal of such indebtedness.” It can not be doubted that the restrictions contained in this section were intended to apply to every county in the state, whatever its internal organization might be, and that all taxes of every kind and description levied for county purposes, it matters not by whom or how levied and the purposes for which levied, must be within the limits of the rates therein fixed; what is called a township tax, levied in a county under township organization, having been known and recognized from the beginning of the state government as within that class of purposes; the limitation of this section must apply to taxes levied for such purposes, the same as to those for any other county purpose, unless, elsewhere in the constitution is to be found some provision taking counties under township organi — 81 — zation from the operation of its provisions. As having this effect we are pointed to section 8, article 9, of the constitution, which reads as follows: “Sec. 8. Townshyp organisation — comity justices. The general assembly may provide, by general law, for township organization, under which any county may organize whenever a majority of the legal voters of such county, voting at any general election, shall so determine; and whenever any county shall adopt township organization, so much of this constitution as provides for the management of county affairs, and the assessment and collection of the revenue by county officers, in conflict with such general law for township organization, may be dispensed with, and the business of said county, and the local concerns of the several townships therein, may be transacted in such manner as may be prescribed by law: Provided, that the justices of the county court in such case shall not exceed three in number.” We fail to discover anything in this section tending to support the contention that by it, counties under township organization might be removed from the limitations imposed by section 11, article 10. The only dispensation provided for therein is “of thé management of county affairs, and the collection of revenue by county officers.” There is not a word in the section to give color to the idea that any limitations imposed by the constitution upon the revenue to be raised for any purpose could be dispensed with, but simply the mode by which the revenue is to be collected. Nor does the fact that townships are named in section 12, article 10, limiting municipal indebtedness, andnotinsection 11, tend to show that the limitations of the latter section might be dispensed with in counties under township organization. It was not necessary that taxes for township — 82 — purposes should be mentioned in section 11, for, as we have seen, they were included in taxes for county purposes. But it was necessary in section 12, for the reason that the legislature, through county organizations, had before the adoption of the constitution, in many instances undertaken to impose upon the property of the citizens of a township as such, burdensome debts for purposes other than governmental, and the purpose of this section was to place a limit upon the power to do so in the future. As before intimated, townships, as independent, tax levying powers for governmental purposes were unknown to the people of the state. But as geographical subdivisions of a county on whose account it was supposed debts might be incurred under the authority of the legislature through the county organization for purposes other than governmental, they occupied no small share of popular attention at the time. The improvident exercise of this legislative power was another one of the great wrongs which the constitution of 1875 undertook to remedy for the future, in the enactment of section 12. Hence township’s are named in that section and not in section 11. It was necessary in the one case and not in the other and plaintiff’s contention receives no support from this fact. We fail to discover, anywhere in the language of the constitution, an intention to make any distinction between counties that might adopt township organization 'and those that remained under their, original county organization, as to the rate of taxation that should be allowed to be levied in each for governmental purposes. No reason can be given why any such distinction should be made. The exigencies of each class are the same, and the same reasons exist for a limitation upon the taxing power to meet them in the one case as in the other. The mote change of the — 83 — mode of administering county government does not, and can not, change the purpose for which taxes are raised to conduct that government, and as the purpose remains the same in each, so the limitations must be the same in each. This must be so, or the framers of our constitution have wrought in vain to limit the expenses of county government, and their whole legislation on this subject may be set at naught. For, to defeat it entirely, it will only be necessary for all the * counties of the state to adopt township organization, and the legislature may then authorize them in addition to the taxes allowed by the constitution for county purposes to levy township taxes ad libitum. A construction of the constitution which would thus authorize the defeat of one of its main purposes, can not be entertained for a moment. Counsel for plaintiff, in support of their contention, cite Macon County v. Huidekoper, 134 U. S. 332, and Railroad v. McCleave, 108 Ill. 368, and somesubsequent eases in that state recognizing its authority. In the Macon county case, which was mandamus to the county court to compel the levy of additional taxes to pay a judgment upon interest coupons detached from certain bonds issued May 2, 1870 by that county to the Missouri & Mississippi Railroad Company under the authority of the thirteenth section of the act incorporating the company, approved February 20,1865, Justice Field, in delivering the opinion of the court,-said: “In this case it appears that for the year 1885 the county had levied only thirty cents on every one hundred dollars of property, but it set up in its answer that it had levied fifty cents, treating the twenty cents which had been levied by the boards of townships for township and bridge purposes as part of the fifty cents. The township is a separate organization from that of the county, with . authority to purchase and hold real — 84 — estate and make contracts and control its corporate property, and its taxes levied for those purposes over which it has control can in no just sense be termed taxes for county purposes. There can be, therefore, no valid objection to the county’s levy of an additional twenty cents on the one hundred dollars to make up the fifty cents-which it is authorized to levy to meet its expenses and liabilities.” The foregoing extract contains the whole of the consideration given the subject in that case. It simply assumes that townships in this state are independent-municipal corporations with power to levy taxes for its own purposes, and therefore taxes levied for such purposes are hot county purposes. "While this conclusion might be predicated upon the powers of “townships” known as “towns” in the laws of Illinois, and the New England states, it can not be of townships under township organization in this state, which, as before stated, exist here, not as separate and independent municipal corporations, but simply as adjuncts or branches of county government, all of whose purposes are county purposes, and have been known and recognized as such from the beginning of our state government. In Illinois, as early as 1848, provision was made for township organization by the adoption of section 6, article 7 of the constitution, which reads as follows: “The general assembly shall provide, by a general law, for a township organization, under which any county may organize whenever a majority of the voters of such county, at any general election, shall so determine; and whenever any county shall adopt a township organization, so much of this constitution as provides for the management of the fiscal concerns of the said county by the county court may be dispensed with, and the affairs of said county may be transacted in such manner as the general assembly may provide.” — 85 — This constitution contained no limitations upon the power of the legislature to authorize the collection of revenue for local purposes. On the contrary by section 5, article 9 of that constitution it was expressly provided that: 11 The corporate atithorities of counties, townships, school districts, - cities, towns, and villages, may be vested with power to assess and collect taxes for corporate purposes.” In the following year under these provisions the legislature, on the twelfth of February, 1849, passed a township organization act, by which the fiscal concerns of a county might be placed under the management of township authorities, by a vote of the citizens of the county, and these authorities were invested with power to levy and collect taxes, and thereby townships became corporate bodies for municipal purposes by the name of “towns,” the particular name of each being in accordance with the expressed wish of its inhabitants. Pub. Laws of 111., 1861, p. 216, et seq. This system prevailed in some of the counties of that state at the time of the adoption of the constitution of 1870. The distinction between county authorities and town authorities was plain, and well marked in the laws of the state, and must have been well understood by the people after having been maintained for more than twenty years in their midst. Under such circumstances section 8 of article 9 of that constitution was adopted, bywhich it was provided that: ‘ ‘ County atithorities shall never assess taxes, the aggregate of which shall exceed seventy-five cents per $100 valuation, except for the payment of indebtedness existing at the adoption of this constitution, unless authorized by a vote of the people of the county.” In construing this section of the constitution the supreme court of Illinois held in Railroad v. McCleave, supra, that the towns in Illinois, under its' township organization law, are municipal corporations, with — 86 — power to levy taxes for corporate purposes, and that such taxes levied by the town authorities are not limited by this provision of the constitution. This holding can have little persuasive force in construing the provisions of our own constitution upon this subject. Under their constitution and laws the towns in counties adopting township organization stood upon the same plane with counties, cities, towns, villages and school districts, with like power to assess and collect revenues. And the management of their fiscal concerns was under the control of the town authorities. The limitation of their constitution was upon the powers of the county authorities to levy taxes, and not upon the power of the town authorities, while the limit in our constitution is not upon the authorities levying the tax, but upon the purposes for which the taxes are to be levied, and with respect to revenue. Townships in Missouri, under its constitution, can not stand on the same plane with counties, cities, towns and school districts as tax-levying municipalities,. for by its provisions only “the assessment and collection of the revenue by county officers,” can be dispensed with. The revenue remains the same after as before township organization, the purposes for which it is raised are the same, and the limitations must be the same, and we can but hold that the county of Bates in levying the tax sued for in excess of forty cents on the hundred dollars exceeded its power and that the tax is void. It would be strange indeed, if it were true, that under our constitution and laws the county of Bates, and the few other counties that have adopted township organization, are permitted to raise revenue at any rate the legislature may see proper to fix, while all the counties of the state maintaining their normal organization, are confined within the limits of the constitution; that the thing plainly prohibited, and which can not be — 87 — directly done, may, by the mere machinery of such an organization, be indirectly done. We do not think our laws are in any such anomalous condition. The judgment is reversed. Black, O. J., Sherwood, Mace arlare and Burgess, .JJ., concurring. Barclay and G-artt, JJ., dissenting.