270 Mo. 251 | Mo. | 1917
— This is a suit for taxes amounting to $574.12, with penalties and attorneys’ fees, in which the judgment was for the plaintiff. The defendant appeals.
The defendant, after the ordinary general denial, answers as follows:
“Defendant further answering said petition states that the sum of $574.12 alleged as owing by this defendant to the county of Scotland and designated in plaintiff’s petition as.the ‘General Boad Fund’ is obtained by an attempted levy of two' mills per dollar on the right of way owned by this defendant in said Scotland County, Missouri; and that this tax levy apparently is made under authority of section 10481, Bevised Statutes 1909, said provision being known as the ‘General Boad Tax.’
“Defendant further states that all taxes that may be levied by county courts are designated in article 10 of the Constitution of the State of Missouri; that no such tax as provided by said section 10481, Bevised Statutes 1909, is anywhere authorized in said Constitu-' tion and that said levy of two mills on the dollar, as provided for in section 10481, is without authority and void because it is contrary to and violative of article 10 of the Constitution of the State.
“Defendant further states that the total valuation of taxable property in said Scotland County for the year 1912, is less than six million dollars, and that by reason thereof under the limitations of article 10, section 11, of the Constitution of the State, the amount of taxes that can be lawfully levied upon property in said county is five mills on the dollar, and defendant states that the attempted tax levy of two mills on the dollar for road purposes is in excess of the lawful rate of taxes in said Scotland County, and is therefore specifically a direct violation of section 11, article 10, .of the Constitution of Missouri, and is for that reason without authority and void.”
The plaintiff replies, among other things, as follows:
*255 “Plaintiff for further reply states that said county court in addition to the amount they could levy under section 11 of article 10 of the Constitution saw proper to make a special levy, as provided by section 22 of said article of the. Constitution of Missouri,’ and that the taxes sued for by plaintiff in his petition are the said taxes so levied and provided by said section 22 of article 10 of the Constitution, and was in force at the time of the levying of said taxes.”
The order of the county court for Scotland County levying these taxes is as follows:
“In compliance with section - of article--, chapter -, of the Revised Statutes of 1909 of the State of Missouri, it is ordered by the court that there be and is hereby levied on the assessed valuation of the railroads, telegraph and telephone property of the county for the year 1912, as adjusted and equalized' by the State Board of Assessment and Equalization as shown by the certificate of the State’Auditor for said year, the following taxes, to-wit: For state purposes, one and nine-tenths mills on each dollar valuation. For the purpose of paying the current expense of the county for the ensuing year to be known as the County Revenue Fund, there is levied five mills on each one dollar valuation to be apportioned as follows, to-wit: For Officers’ Salary Fund, one and one-half mills. For Jury and Election Funds one-half of a mill. For Road- and-Bridge Fund, one and one-half mills. For Contingent Fund three-fourths of a mill. For the payment of interest on funding bonds as per order of the Scotland County Circuit Court at its February term, 1893, there is levied a tax of six mills on each one dollar valuation, to be known as the Bond Interest Fund. For the ■ Special Road-and-Bridge Fund there shall be levied and collected one-half mill on each one dollar valuation. For the purposes estimated in the name prescribed by law' there shall be levied and collected a tax of two mills on each one dollar valuation to be apportioned when collected to' the several road districts as provided by law, to be known as the Road Tax Fund.”
It will be seen that the point made is quite technical, the bill. of exceptions having been signed by the judge who alone held in his own breast the proceedings, and being, admitted to be true.
It is apparently conceded that before the enactment, in 1889, of the provisions of section 2032 of our present Revised Statutes, the judge who tried the cause was the only one competent to sign the bill, and that his death or retirement from office before signing it, would preclude the unsuccessful party to the judgment from a review of any matter of exception by appeal or writ of error. It was evidently to remedy this condition that the section was enacted. Its necessity flowed naturally
The Constitution (Art. 6', sec. 24) provides that the State shall be divided into circuits, in each of which one circuit judge shall be elected and that whenever a circuit is abolished the office of the judge of such circuit shall cease. Section 29 of the same article is as follows: “If there be a vacancy in the office of judge of any circuit, or if the judge be sick, absent, or from any cause unable to hold any term or part of term of court, in any county in his circuit, such term or part of term of court may be held by a judge of any other circuit; and at the request of the judge of any circuit, any term of court or part of term in his circuit may be held by the judge of any other circuit, and in all such cases, or in any case where the judge cannot preside, the General Assembly shall make such additional provision for holding court as may be found necessary.” “We have quoted this section fully to call attention to the fact that the office of circuit judge is, by the terms of the Constitution which created it, a State and not in any sense a local office, and that the circuit and its courts are the judicial instruments of the State, and not of any particular locality. The judge is a judicial officer of the State and may exercise his functions as such in proper cáses in any county. The circuit is simply the
We note particularly the clause in section twenty-nine of the same article which provides that at the request of the judge of any circuit' any term of court or part of term in his circuit may be held by the judge of any circuit. Under this provision the request may originate in the caprice of the judge of the circuit in which the ’court is held, as well as in any other condition. In Riggs v. Owen, 120 Mo. 176, Dekalb County, which constituted a part of the Twelfth Judicial Circuit of which Hon. O. M. Spencer was judge, was attached to the Twenty-eighth Judicial Circuit, of which Hon. C. II. S. Goodman was judge. A cause which Judge Spencer had tried was pending in the DeKalb Circuit Court upon motion for a new trial, and while Judge Goodman “was present in court in apparent good health” Judge Spencer sat upon the bench and overruled it. When the motion was reached, Mr. Riggs, against whom the judgment had been rendered, objected on the following grounds: “First, because Judge Goodman was present in court in apparent good health.; and, second, because Judge Spencer, as judge of the Twelfth Circuit, had no jurisdiction.”
In sustaining the action of Judge Spencer this court in division said: “Judge Goodman was authorized to call Judge Spencer to hold this term or any part' of it, and in the absence of any showing to -the contrary we will presume that he did. [State v. Gamble, 108 Mo. 500.] It was most natural and • proper that he should have done so, in order to close up the business which was then pending, especially to pass upon motions for new trial and prevent the unnecessary delay and cost of second trials. It is not for parties litigant to determine the condition of the judge’s health, or his reasons for calling in another judge. The law has vested that power in him. [State v. Ulrich, 110 Mo. 350.] ”
All these decsions rest upon the principle that under our Constitution and statute the judge of the circuit court is a judicial officer of the State whose powers, in whatever county they may be exercised, rest upon his election and qualification by his oath of office, and that whenever, in the performance of his official duty, he enters upon the trial of a case, he acts within the limits of his official authority, which continues until the duty is performed or he goes out of office. This capacity results from the nature of the duty, and has always been recognized by this court. [Woolfolk v. Tate, 25 Mo. 597; Cocker v. Cocker, 56 Mo. 180.] The same necessity in which this rule is founded afforded the incentive for the enactment of the law we are now considering. While, at the time of its enactment in 1889, the common law, through the official capacity and powers of the trial judge, carefully preserved to the litigant the means of preserving for review the rulings incident to the trial, it was' possible these might be foreclosed by the cessation of the office of the trial judge before they had been properly preserved and recorded. The statute (R. S. 1909, sec. 2032) carefully covered this field, and its remedial words are no broader than its remedial purpose. It covers those cases only “where the judge who heard the cause shall go out of office before signing the bill of exceptions.” To disregard
We are aware that the Kansas City Court of Appeals in State ex rel. v. Flick, 179 Mo. App. 236, takes a different view of this question, but are not satisfied with its reasoning, and prefer to adhere to the doctrine of this court and that of the St. Louis Court of Appeals in the eases cited. We think that this bill of exceptions is properly before the court, and that it is- our duty to consider the effect of the levy, which is the real subject of the controversy.
The total valuation, for taxation, of the property of Scotland County is less than $6,000,000, and section eleven of article ten of the State Constitution limits the annual rate of taxation for county purposes to fifty cents on each one hundred dollars of such valuation. That the establishment, construction and maintenance of roads and bridges in the county, except within the limits of municipal corporations charged with those duties, belongs in the category of “county purposes” is not denied.
Acting under the authority of statutes passed in pursuance of the constitutional provision referred to, the county court of Scotland County levied upon the property of the county at the May term, 1912, taxes for county purposes to the full amount of fifty cents on each one hundred dollars, and, in conformity with the provisions of section 11423, appropriated, apportioned and subdivided the fund so levied as follows: (1) for
The appellant states its position as follows:
“The two-mill road tax as ordered by the .county court of Scotland County was levied under section 10481,*263 Revised Statutes 1909, and was unconstitutional for the reason that the fifty-cent limitation of section 11, article 10, of the Missouri Constitution had been exhausted by the current expense tax, section 10481, Revised Statutes 1909, being within the limitation of section 11, article 10 of the Constitution. ” ■
III. In 1908 an amendment to the Constitution was adopted and added to article 10 as section 22, which is as follows:
Special Road and Bridge Tax. “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 g-j-^g 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. ’ ’
It is upon this amendment and the acts subsequently passed and incorporated in the Revised Statutes of 1909 that the validity of the tax in controversy is asserted and must depend.
No amendment was made to section 9283, Revised Statutes 1899, which is contained in the Revised Statutes of 1909 as section 11423, and was substantially followed in the apportionment to which we have already referred down to the last paragraph, in which the twenty-cent appropriation was made. This paragraph and all succeeding matter was added by the county court to the statutory form as it had existed for many years. The Act of 1909 (Sec. 10481, R. S. 1909) is as follows:
“The county court in the several counties of this State, at the May term thereof in each year, shall levy upon all real and personal property made taxable by law) outside of incorporated cities, towns and villages,*264 a tax of not more than twenty cents on the one hundred dollars valuation as a road tax, which levy shall he collected and paid by the collector into the county treasury as other revenue, and the county treasurer shall place the same to the credit of the road district from which said tax was collected, and shall pay the same to the overseer of said district on the warrants of the county court. The money derived from such road tax shall be expended by the respective road overseers in purchasing necessary tools with which to work the roads in their districts, in purchasing material to build or repair bridges and culverts, and for such other expenditures as may be necessary to keep the roads in their districts in good- order: Provided, that the construction of all bridges and culverts shall be under the direction or supervision of the county highway engineer.”
The next succeeding section (10482) is as follows:
“In addition to the levy hereinbefore authorized to be made, the county courts of the several counties of this State, other than those 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 one hundred dollars valuation, to be used for road and bridge purposes, but for no other purpose whatever, and the same shall be known and designated as ‘the Special Road-and-Bridge Fund’ of the county.”
Again, in section 11769, evidently referring to the same subject, it is provided that “the county court of any county in the State which is not 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 . . . to be known as a Special Road-and-Bridge Tax.”
It will be seen that there is no question as to the authority of the county court to levy the entire amount.Before the amendment of 1908- all road taxes were included in the levy authorized by the Constitution to be made for “county purposes.” The form fixed by statute for the apportionment of this levy expressly authorizes the appropriation from the amount so raised of “a sum sufficient for the payment of all necessary expenses for the building of bridges and repairing of roads, including pay of road overseers.” The constitutional amendment permits the twenty-five cent levy “in addition to taxes authorized to he levied for county purposes under and hy virtue of section 11,” and the statutes enacted in pursuance of it contain the same authority. The amendment simply increases the amount which the county was authorized to levy under the provisions of section 11 from fifty cents to seventy-five cents on .each one hundred dollars valuation, with the limitation that the entire additional levy must be made and used for road and bridge purposes and for no other purpose whatever. It imposes no duty upon the county court to appropriate any part of the levy for county purposes under section 11 to such uses, but left the power undisturbed. Even if the county court previously had the power, to transfer the road-and-bridge fund created under the provisions of section 11423 of the Revised Statutes of 1909 (Decker v. Diemer, 229 Mo. 296), this fund is to be kept sacred to the purpose for which it was levied. The question here is not whether the county court had power to levy this disputed tax (for the amendment places that beyond question), but whether it did it; that is to say, whether the words used in making the levy were apt and sufficient under the constitutional amendment and statutes enacted to carry it into effect. ■
That the last two levies were intended to be made under the authority granted by section 22 of the Constitution and section 10482, Revised Statutes 1909, necessarily follows from the fact that the previous levy of fifteen cents embodied in the second clause of the apportionment of fifty cents for county purposes under the provisions of section 11 of article 10 of the Constitution, and section 10481 enacted in pursuance thereof, exhausted the power of the county court under the law as it stood before the amendment. The two levies of twenty cents and five cents last mentioned, amounting to twenty-five cents ' on' each one hundred dollars of valuation, must therefore stand upon the amendment of 1908 and section 10482 or not at all.
The defendant paid the last of these additional levies amounting to five cents on the one hundred dollars and only disputes the twenty cent levy. On what theory this was done is not clear to ns; for it was certainly void if its validity must depend on the authority of section 11 of article 10 of the Constitution, being in excess of the fifty cent limit. If made under section 22, article 10, and section 10482 it comes within the amount of the additional levy of twenty-five cents so authorized. It is therefore evident that the county court in making each of them,, attempted to act under the amendment and section 10482. The only question is whether it failed to express its intention.
The judgment of the circuit court is sustained.
— The foregoing opinion of Brown, C., is adopted as the opinion of the court.