State v. Hannibal & St. Joseph Railroad, 75 Mo. 208

75 Mo. 208 | Mo. | 1881

Sherwood, C. J.

Whether that portion of defendant’s answer which pleaded the contract of December 3rd, 1868, was open to the objection taken by demurrer, depends upon the power of the city of Hannibal to make such a contract.

There-is nothing to be found in the charter of the city which gives countenance to the idea that such power was possessed at that time, and we know that unless by the charter, the organic law of the city, such power be granted, it has no existence. This proposition of law is general and undisputed. If the power be not granted in express words, necessarily implied, or incident to those expressly granted, or essential and indispensable to the declared objects of the corporation, then the corporation is not the possessor of such a power. Dillon on Munic. Corp., (3 Ed.) § 89, and cases cited.

There are other objections equally insuperable to the exercise of the power relied upon in the present case. For though municipal corporations may make such contracts as their respective charters authorize, they cannot so contract as to surrender or embarrass their legislative or governmental powers, or prevent the full and complete performance of their public duties; duties which result from such powers, which are conferred upon municipal corporations for public purposes, and for the public good. Such powers being in the nature of public trusts, arc incapable of alienation or surrender. Dillon on Munic. Corp., § 97, and cases cited. Among the most valuable and important of those public trusts and \ owers is that of taxation, without the exercise of which municipal government would cease to exist. No argument would seem necessary to show that the same principle, which forbids the absolute cession by a municipal corporation of the power of taxation over any given subject matter, likewise forbids that which approximates thereto. For, if, for instance, it were allowable for a municipal corporation to 'abdicate its taxing power pro tanto, this would differ only in degree and not in kind from such abdication in toto. The exercise of either method of surrender of its legislative and governmental powers by a municipal corporation, would, if pushed to its natural and logical conclusion, destroy the municipal government.

Besides, the idea of taxation imports the equality of apportionment and assessment upon-all property. Cooley Const. Lim., p. 2, and cases cited. It is this which distinguishes taxation from arbitrary exaction. 2 Dillon Munie. Corp., § 736. And it cannot be doubted that the exemption of' the property of an individual or of a private corporation from taxation, either in whole or in part, casts an unusual and inequitable burden on the property of those who have not been thus graciously favored. In Maine, whose constitutional provisions, like our own, require equality and uniformity in levying taxes, it is held that even the legislature cannot confer a general power on a town to exempt, by vote of the people'thereof, the property of a manufacturing company from taxation, and that such law was unconstitutional, Appleton, C. J., saying : “But while there are no limits on the amount of taxation for public purposes, nor on the subject matter upon which it may be imposed, the requirement that it shall be uniform and equal upon the valuations is made Universal. To have uniformity of taxation, the imposition of, and the exemption from taxation, must be by one and the same authority, that of the legislature. But'if it be conceded that each town has the right to tax part and exempt part of the property located therein, whatever its character, uniformity in relation to the subject matter as well as to the ratio of taxation is at an end ” Brewer Brick Co. v. Brewer, 62 Me. 62; s. c., 16 Am. Rep. 395. And in Wisconsin, where the constitution requires that “the rule of taxation shall be uniform,” it is held this rule extends as well to taxation by cities, towns and counties as to that levied by the State; (Knowlton v. Supervisors, etc., 9 Wis. 410; Hale v. Kenosha, 29 Wis. 599 ;) and that when the legislature prescribed a different rule whereby a discrimination was made in the rate of taxation to be imposed in towns upon the same species of property, the act was a departure from the constitution, and, therefore, void. In the case at bar, the attempt of the city of Hannibal to exempt the defendant’s property from paying the full amount of tax, had not, as already seen, even an act of the legislature to uphold it.

But more than that, section 30, article 1, of constitution 1865, provides that: “All property subject to taxation ought to be taxed in proportion to its value.” And section 16, article 11, of the same instrument, provides that: “No propertjq real or personal, shall be exempt from taxation.” These sections were considered by this court in Life Association v. Board of Assessors, 49 Mo. 512. The word “ought” in the first one was held mandatory, and the effect of both sections held to preclude all legislative action looking either to an exemption from taxation or to a commutation of taxes, and this, notwithstanding the law of March 10th, 1869, (Wag. Stat., 752, § 2,) provided that certain insurance companies might pay certain fees in lieu of -all fees and taxes whatsoever. A similar ruling was made in similar circumstances in Ohio. Zanesville v. Auditor, 5 Ohio St. 589. Now, if it be true, as heretéforc asserted, that the same constitutional provisions and prohibitions apply to taxation when by towns, cities and counties as when imposed by the State, and that exemption from and commutation of taxes, both alike occupy the. same footing, both being under the ban of the constitution ; and if it be true, also, as heretofore decided by this court-, that a city may successfully interpose the plea of ultra vires, whejn charged with having executed a contract. Cheeney v. Brookfield, 60 Mo. 53, and cases cited, then it only remains to say that the judgment should be, and is, accordingly, affirmed.

All concur.