237 Mo. 474 | Mo. | 1911
Mandamus. Eirror to Sullivan Circuit Court. For convenience,' relator below (defendant in error here) will be called plaintiff. Similarly, respondent below (plaintiff in error here) will be called defendant.
Sullivan county is under township organization, with a municipal township dubbed “Penn.” Within the borders of Penn township lies “the city of Green
There stood on the Revised Statutes of 1899 section 10,326. In 1907 (Laws 1907, p. 419) that section was amended. The amendatory act provided, inter alia, that the township board of directors shall, at their regular meeting in April of each year, assess the amount of road tax levied on each $100 worth of real and personal property, etc., subject to taxation in the township. It. became part of the administrative
Such was the statutory scheme at the time the road taxes in question were assessed, levied and became due.
Turning now to the Constitution. In 1908 an amendment thereto was adopted enlarging the constitutional right of taxation for road and bridge purposes. That amendment appears now as section 22, article 10, reading:
“In addition to taxes authorized to be levied for county purposes under and by virtue of section 11, article 10 of the Constitution of this State, the county court in the several counties of this State not under township organization, and the township board of directors in the several counties under township organization, may, in their discretion, levy and collect, in the same manner as state and county taxes are collected, a special tax not exceeding twenty-five cents on each $100 valuation, to be used for road and bridge purposes, but for no other purpose whatever; and the power hereby given said county courts and township boards is declared to be a discretionary power.”
In 1909 the Legislature, evidently working on the theory that said amendment to the Constitution con
“Section 1. May levy twenty-jive cents on hundred dollars for roads and bridges. — The county court of any county in the State which is not under township organization, and the township board of directors of any township in any county which is under township organization, may, annually, in their discretion, at the same time and in the same manner as taxes are now required by law to be levied for county purposes, levy an annual tax in addition to those now authorized by law in any amount not exceeding twenty-five cents on each one hundred dollars valuation on all property subject to taxation in such county or township, to be known as a special road and bridge tax.” [Now Sec. 11.769, R. S. 1909.]
“Sec. 2. How collected and for what used. — All taxes levied under the provisions of the foregoing section shall be collected in the manner and at the same time as taxes for county purposes are now collected, .and all moneys arising therefrom shall be by the county court or township board of directors appropriated, set apart and kept as a special road and bridge fund, and shall be used for road and bridge purposes, and for no other purpose whatever.” [Now Sec. 11.770, R. S. 1909.]
By its further act, approved June 1st, 1909', the same Legislature repealed the whole of article 14, chapter 168', Revised Statutes 19091, and enacted a new law in 39 sections covering the subject-matter of said article 14, and outlining a new scheme relating to roads, highways and bridges under township organization. [Laws 1909, p. 870, et seq.] As there was no emergency clause to this new act; it went in effect later. [State v. Schenk, just handed down.] Among
“Sec. 19. Board shall assess property. — The township board of directors shall, at the regular meeting in April of each year, assess upon all real and personal property in their township made taxable by law for state and county purposes, including railroad, telegraph and telephone lines, a tax for road and bridge purposes, which shall not exceed twenty-five cents on the one hundred dollars valuation. Said road tax shall be collected and paid by the township collector into the township treasury as other township tax, and the township treasurer shall place the samé to the credit of the road district from which said tax was collected, and shall pay same to the overseer of said district on the warrants of the township board. The money derived from such road tax shall be expended by the respective road overseers, under the direction of the township board, in purchasing necessary tools with which to work the roads in his district, in purchasing material to build or repair bridges and culverts, and for such other expenditure as may be necessary to keep the roads in his district in good order : Provided, that the money derived from taxes on property, situate wholly within incorporated cities, towns and villages, shall be paid to the treasurer of such city, town or village, to be applied to the corn struction and reconstruction of roads and highways in said municipal corporations.”
Such are the constitutional and statutory provisions held in judgment. The question here is: Under the facts first outlined, and the provisions of law set forth, could the writ of mandamus go?
We answer that question, no, because:
The writ, the petition (and the brief of plaintiff’s counsel) proceed on the underlying theory that the tax in question was assessed and levied by virtue of
Counsel for plaintiff do not contend there is any authority in said constitutional provision itself for the division between the city of Creen City and Penn township of the tax so assessed, levied and collected. Their position is that the right to such division is found in the statute, viz., in the proviso at the foot of said section 11,767. They put all their eggs in that basket. If it fall — what then?
Let us look to the matter. A critical gloss of that section furnishes indubitable internal evidence that neither the section nor the proviso has a whit to do with a tax laid under that constitutional amendment. The section is merely an attempted continuation of the old power and duty existing before the amendment do collect taxes at large for road purposes. A comparison of the language of the amendment with that of the section puts that view of it quite beyond doubt or cavil. For instance
Again, the amendment makes the proceeds of the levy a special fund for a limited and specific purpose, viz., “to be used for road and bridge purposes, but for no other purpose whatever.” Now, section 11,767 ordains that the tax levied under that section may be used for the purposes, among other things, of buying tools with which to work the roads in the district. Is not such use foreign to the purview of the closely guarded constitutional amendment?
Again, in the proviso to the section (the staff plaintiff leans on) it is said that the pro rata share paid to the city treasurer “shall be” applied to the “construction and reconstruction of roads and highways.” It says nothing about bridges. In a popular or colloquial sense a bridge may be part and parcel of a road or highway. Therefore, in a broad way, when a statute says highways and roads it may mean bridges also. But our road statutes, passim, use the term bridges when they mean bridges. So the amendment to the Constitution we are considering specially mentions bridges as well as roads. In that view of it, is it not a little singular that the term “bridges” should be omitted in the proviso to the statute if that statute, as contended, was intended to supplement the Constitution, and affect taxes going into a special road and bridge fund?
The premises considered, we rule that the section relied on by plaintiff, viz., 11,767, does not apply, but that sections 11,769 and 11,770 do apply. Where-from it follows that no division of the constitutional
A further legal barrier in plaintiff’s way — one not to be overleaped — is this: Were we to admit, by way of argument only, that'the division .of road funds directed by section 11,767 had reference to the special constitutional road and bridge fund, yet to hold it applicable to the tax levy of 1909 would be to make it retroactive. This, absent words in the statute clearly importing such idea, we could not do. Retroactive laws are likely to be unjust and are never allowed except they have legislative sanction, express or necessarily implied, and then they must square themselves with the constitutional provisions leveled at retrospective laws. [Manwaring v. Lumber Company, 200 Mo. 718; Clark v. Railroad, 219 Mo. 524, et seq.]
Counsel for defendant, under this head, cite us to two cases relating to taxes and apparently running on all-fours. [State ex rel. v. Thompson, 41 Mo. 25; State ex rel. v. Ferguson, 62 Mo. 77.]
Counsel for plaintiff argue that the constitutional amendment in judgment is self-enforcing — i. e. that the tax in hand could be levied without an aiding legislative act. As to that we say neither aye nor nay. Let the question be reserved for some case turning on it. The final and decisive question here is not so much by what law, the tax was levied, or whether the levy was legal or not, but by what law it is to be divided, if at all. If it be as argued, yet counsel do not contend the city gets any of the tax by virtue of the Constitution. They are driven to the statute for their right, and the statute they lay hold of fails them. If the division of such special road and bridge taxes be just, relief must be asked at the hands of the lawmakers, not of the courts.
Counsel for defendant make some contentions, which, in view of' the disposition to be made of the case, we deem afield.