85 Mo. 41 | Mo. | 1884
The object of this proceeding is to compel, oy mandamus, the state auditor to draw his warrant on the state treasurer for the amount of certain taxes, collected from a railroad company, on its property in the township to whose use this proceeding is instituted, and to the capital stock of which company such township is alleged to have made subscriptions, and to have issued bonds in payment thereof. The acts of March 23,1868, (acts of 1868, pp. 92, 93), and of March 19, 1881 (acts of 1881, pp. 189, 190), are relied upon by the relators as authorizing such demand. The demurrer of the respondent puts in issue the validity of these acts under the constitutions of 1865 and 1875. The various provisions with which said acts are alleged to conflict, will be indicated in the progress of this opinion.
It may be conceded that if the acts of March 23, 1868, and March 19, 1881, are constitutional and valid enactments, then, upon a proper and sufficient showing, as indicated in the act of 1881, it was the plain duty of the auditor to comply with the demand made upon him, and his refusal to do so would authorize the award of the writ, called for. But if said acts are not valid and constitutional enactments, then it was equally his plain duty to refuse, as he did. Under repeated decisions of this court, the question of the constitutionality of the act of 1868 has been settled, and is no longer an open question with this court. Webb v. Lafayette Co., 67 Mo. 353; State ex rel. Woodson v. Brassfield, 67 Mo. 331; Hays v. Dowis, 75 Mo. 250. In the case of The State ex rel. Stamper v. Holladay, 72 Mo. 499, and The State ex rel. Wilson v. Rainey, 74 Mo. 229, the former rulings of this court are in no proper sense departed from, but expressly recognized and approved. The correctness of the reasoning in the case of Webb v. Lafayette County, supra, is so accurate and comprehensive, and so logical and conclusive, that any effort to add to or improve the same is wholly useless, if not out of place.
In the case of Webb v. Lafayette County, supra, the court held that the act of 1868 was unconstitutional and void, because it permits a subscription to be made by a township to the stock of a railroad company, if two-thirds of the qualified voters who vote on the question; at an election, are in favor of it, when the constitution of 1865 required the assent of two-thirds of all the qualified voters' to authorize a municipal subscription. It also held the act to be unconstitutional because section five of the act devotes all the state and county taxes, to be collected within any township from any railroad company to which the township has subscribed, to the reimbursement of the township for its subscription, and after it is fully reimbursed, then to the school fund of the township. This, it was held, is indirectly mak
The relator’s claim must fail, unless the validity of the act of 1881 can be upheld. This act, as we have seen, is clearly void for the reasons already stated, and it is also objectionable for other reasons. The fifth section of the act of 1868 furnished no valid authority, on the part of the townships, to retain the taxes in controversy, and they were properly paid into the state treasury. Having been so paid, the general assembly, under the .former rulings of this court, had no constitutional power, by law, to refund them to the townships to whose use this proceeding is instituted.
Section 53, article 4, of the constitution of 1875, .among other things, provides that: “The general as.sembly shall not pass any local or special law, * * * remitting fines, penalties, and forfeitures, or refunding moneys legally paid into the treasury.” If the act in question can be regarded as a special law, it is clearly obnoxious to the constitutional provision above quoted ; .and if it must be regarded as a general law, then it is clearly invalid under the ruling in the case of Webb v. Lafayette County, supra, and, also, by force of sections
For these reasons the respondent’s demurrer to relator’s petition is sustained, and the peremptory writ denied.