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(248 S.W.) year 1920 to his said codefendant Srite for the section 7 of article 10, whereby all laws excollection of said tax, and unless restrained by empting property from taxatior except as the judgment of this court all these things de- therein enumerated shall be void; section 8. fendant Ferril will do,

of article 10, wherein a limitation is placed "The plaintiff further alleges that defendant upon the state tax upon property; section 2 Srite is planning and proposing to enforce of article 10, whereb the power to tax corporaagainst this plaintiff the collection of said tions and corporate property shall not be surtaxes against the said income for the year rendered or suspended by the act of the Gen1919 of this plaintiff, assuming to act in so eral Assembly; section 53 of article 4, wheredoing under the authority of said pretended by the General Assembly is prohibited from statutes, exercising, in so doing, the powers of passing any special laws exempting property his office of collector of the revenue. And de- from taxation; section 15, art. 2, whereby it fendant Srite is preparing and declares that is provided no ex post facto law or law retrobe will enforce, within the time and in the spective in its operation can be passed by the manner designated by said pretended statutes, General Assembly; section 30, art. 2, whereby the collection against plaintiff of taxes against it is provided that no person shall be deprived his said income for the year 1920, as assessed, of his property without due process of law; computed, and extended upon the tax book to section 19 of article 12, whereby it is provided be delivered to him all as herein alleged, and that ao law shall be passed retrospective in all this he will do, unless enjoined and re its operation or which imposes on the people strained by the judgment of this court. And of any county or municipal subdivision of the all these things the said defendants will do state a new liability in respect to transactions with respect to incomes for the years 1919 or considerations already past. That said preand 1920, received and to be received by all tended statutes of the state of Missouri are other persons and corporations who stand in unconstitutional and void in that they violate like situation with this plaintiff unless the Constitution of the United States and parjoined from so doing.

ticularly the following provisions thereof, to "Plaintiff further states that, as he has here- wit: Section 8 of article 1, which vests in inbefore alleged, he is a resident of Buchanan Congress the power to regulate commerce with county in the state of Missouri; that he is foreign nations and among several states; the owner of personal and real property lo- section 2 of article 4, whereby it is provided cated in said county and state to the assessed that the citizens of each state shall be entitled value of $15,000; that there has been assessed to all privileges and immunities of citizens in against said property taxes for state and coun- the several states; article 14 of the amendty purposes for the years 1919 and 1920, and ments to the Constitution of the United States, that he has paid the taxes thereon for the year which provides that no state law shall deprive 1919 and will be required to pay and will pay any person of liberty or property without due the taxes thereon for the year 1920, when due process of law or deny to any person within for state and county purposes; that, in the as its jurisdiction the equal protection of the sessment, computation, extension into a tax laws. book, and collection of the tax against his said "Plaintiff further states that said pretended income for the year 1919 and of the tax against statutes provided that certain classes of prophis said income for the year 1920, and against erty and the income therefrom, when owned the incomes for the years 1919 and 1920 of all by certain classes of taxpayers, shall be taxed other persons and corporations similarly sit- differently from the manner in which taxes uated with this plaintiff, the defendants here shall be assessed, levied, and collected upon in declare that they will expend county and the said class of property and the income therestate funds, derived in part from taxes paid from when owned by other classes of taxpayers, by him upon his said property and derived in and that certain classes of property and the part from general taxes for state and county income thereon shal be exenipted from the liapurposes, paid into the general revenues of the bility for taxes when owned by certain classes county and state by all other persons and cor of taxpayers, while the same class of propporations paying such general taxes in said Jerty and the income therefrom is sought to be county, and unless restrained and enjoined by subjected to the payment of taxes when owned this court, this defendants will do.

by other classes of taxpayers, and that the ba"Plaintiff further states: That said pre- sis for determining the value of the property tended statutes are void, illegal, and of no ef- and the incomes to be taxed under said prefect whatever. That they are wholly ineffectended statutes, when owned by certain classes tual to confer upon defendant Crawford, or up- of taxpayers, is different from the basis froon defendant Ferril, or upon defendant Srite, vided by said pretended statutes for determinor either of them, any power or authority what-ing the value of the said class of property ever to do the things which they are about to and income, when owned by other classes of do as hereinbefore set out. That said pre- taxpayers; that the income derived from tended statutes of the state of Missouri are property in the state of Missouri, by certain unconstitutional, null, and void, in that they classes of taxpayers, who are favored and previolate the Constitution of the state of Mis- ferred by the provisions of said pretended statsouri, and particularly the following provisions utes, are exempted from the operation of said thereof, to wit: Section 3 of article 10, where - pretended statutes, and no tax will be assessed, by it is provided the taxes shall be uniform up- levied, or collected thereon, and said favored on the said class of subjects within the terri- and preferred classes of taxpayers will not be torial limits of the authority levying the tax; required to pay upon their said incomes any Section 4 of article 10, whereby it is provided tax whatever under said pretended statutes; that all property subject to taxation shall be that certain named classes of corporations and taxed in proportion to its value; section 6 and associations are exempted from operation of

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said pretended statutes, whereas all individ "Wherefore, plaintiff prays the court to renuals who derive income from property in Mis- der its judgment enjoining and restraining the souri, both residents of the state and non- defendant Crawford from requiring of this residents of the state, are required to pay plaintiff that he file in defendant Crawford's taxes on such incomes to be assessed, levied, office a return of plaintiff's said income that deand collected under the provisions of said pre- fendant Crawford be enjoined and restrained tended statutes; and plaintiff says that, unless from assessing the said income of plaintiff and said defendants be restrained by this court from certifying any assessment thereof to defrom assessing, levying, and collecting said tax fendant Ferril as county clerk of said county; against his said income be will be required to that defendant Ferril be enjoined and restrained pay said tax upon his said income while other from computing the tax upon the assessment individuals and corporations deriving like in- made by defendant Crawford when certified to comes from their property in the state of Mis- | him, and from extending the same upon any souri during the calendar years 1919 and 1920 tax book, and from delivering any such tax will be relieved from the burden of taxation book showing said tax against plaintiff's inupon their said incomes, and be exempted from come to defendant Srite, the collector of said the operation and effect of said pretended county, and plaintiff further prays that defendstatutes.

ant Srite be enjoined and restrained from col“Plaintiff further states that there are in- lecting any tax that may be assessed and levied surance companies organized under the laws under said pretended statutes upon the said of the state of Missouri and insurance com- income of plaintiff, from suing, harassing, or panies organized under the laws of other states annoying this plaintiff in the collection of said doing business in the state of Missouri, which tax; that all said defendants be enjoined and have invested and are investing in real estate restrained generally from doing any act or loans and other securities in the state of Mis- thing whatever, and from receiving or expendsouri, large sums of money not derived from ing any moneys derived from county or state premiums paid upon insurance done in the state revenues under color or authority of said preof Missouri, froin which said loans and invest tended statutes, affecting or purporting to afments said insurance companies have received fect the property of the said income of this and are receiving large incomes, which said plaintiff, and plaintiff prays for all other and incomes are exempted from income tax by the further orders and judgments as may be propprovisions of said pretended statutes, while er in the premises." this plaintiff and other individuals and corporations other than insurance companies having [1] I. It is contended that (a) the Income investments of like character in Missouri from Tax Act of 1919 taxes incomes for the entire which they derive incomes, are required to pay year of 1919, and, since the act did not take the income tax thereon under said pretended effect until August 7, 1919, it is retrospective statutes and enjoy no such exemptions. "Plaintiff further states that there are cor

and therefore invalid as to income received porations organized under the laws of other prior to that date; and (b) that, since the states doing business in Missouri of both inter- value on January 1, 1919, is fixed as the basis state and intrastate character, which derive of value for determining the gain or loss on large net incomes from the interstate business property sold by corporations, and since this upon which they are not required by said pre- time antedates the taking effect of the act, tended statutes to pay the income tax provid- it is, for this reason also, retrospective and ed thereby, whereas individuals and domestic invalid. corporations located in Missouri and engaged [2] The first of these contentions is an. in interstate commerce and deriving large in- swered in Smith v. Dirckx, 283 Mo. loc. cit. comes therefrom are required to pay the in

198, 199, 223 S. W. 104, 11 A. L. R. 510. The come tax provided by said pretended statutes

act of 1919, in so far as it carried forward thereunder, which said discrimination in favor of insurance companies and nonresident cor

the provision in the former act was not retro porations and against plaintiff and other indi-spective nor was it, to that extent, new matviduals and other corporations is unlawful and ter at all. As to the second proposition, some violative of tbe inhibitions of the Missouri Con- time for fixing the value had to be chosen. stitution and of the Constitution of the United The value of corporate property was fixed States herein noted.

for the whole year as of January 1st. If it “Plaintiff further states that, in determining is thought that the valuation already made losses and gains from sale of properties ac

prior to the enactment of the law of 1919 quired before July 1, 1917, for the purpose of could not legally be used because it had then returns to be made for taxation under said pre- been made, it is not perceived that the act tended statutes by individuals, the difference between the sale price and the value on July of 1919 takes the valuation already made, at 1, 1917, of the thing sold shall be taken, where all. What it does is to base the tax upon as in the cases of corporations the difference the value on January 1st preceding. It is between the sale price and the value of the not complained that a valuation already thing sold on January 1, 1919, shall be taken made is adopted. It is complained that a thus establishing a different basis for valua

value as of a time preceding the taking eftion in the case of corporations from the basis fect of the act of 1919 is made the basis of established for this plaintiff and individuals the computation in question. The act of 1919 generally to the prejudice of this plaintiff and individuals similarly situated. Plaintiff further covered the entire year of 1919. If the pre states that part of his said income was received vious act would have been valid as against

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(248 S.W.) the first of the year for the whole year, there / strued as to render it unconstitutional if any seems to be no reason for saying that its other reasonable construction can be given it. validity as the annual base is affected by If the position is sound, the sole effect is to a mere increase in the tax rate for the last prevent such taxation of the income menfive months of the year. The matter falls tioned. within the principle announced in Smith v. [6] 3. Corporations may be treated as a Dirckx, supra.

class for the purpose of the methods and (3) II. It is argued that the act is invalid, machinery of taxation. In fact, they are so because there is no way to ascertain the treated in our laws. The selection of one amount of income falling under the rate in date for the date of valuation of the propthe act of 1917, and the amount coming un-erty of individuals (section 13110, R. S. 1919), der the rate in the act of 1919, from August and another in the same year, but six months 7th, forward. This presents merely the dif- previous (section 13112, R. S. 1919) does not ficulties to be met in computing, assessing, of itself necessitate or disclose an inequality and collecting the tax, and does not affect within the meaning of the Fourteenth Amendthe validity of the act.

ment. There is no conclusive presumption
III. It is insisted the law is invalid be that properties of equal value would be val-
cause (1) it allows certain deductions to be ued differently at the different dates named.
made in the case of a citizen of this state, [7] 4. The objection that the income of
but contains no provision for such deductions nonresident corporations derived from inter-
in the case of a nonresident; (2) family state business is exempted, and that this re
exemptions are denied to nonresidents unless sults in "an unequal application of the laws
they file the return required by the act, while to resident and nonresident corporations and
no such penalty is imposed upon citizens of individuals” is not sound. The distinction
the state; (3) persons under guardianship between resident and nonresident corpora-
and estates in trust are denied the exemption tions furnishes a reasonable basis for classi-
of $2,000 for each dependent child; (4) that fication with respect to taxation, as the au-
the income of nonresidents from interstate thorities in the briefs show.
commerce transactions is taxed; (5) that to [8] 5. It is urged that section 13111, R.
ascertain the gains and losses from sales of S. 1919, denies to persons "under guardian-
property different dates of valuation of the ship and estates held in trust” exemptions
property of natural persons and corporations on account of dependents. It is argued that
are fixed by the act, and this inequality af- the section fixes the exemption in such cases
fects the amount of the tax; (6) that the pro at not more than $2,000. A reading of the
vision exempting that part of the income of section shows that it is susceptible of a
nonresident corporations which is derived construction which permits the same exemp-
from interstate business renders the applica- tions as in other cases; that the $2,000 limi-
tion of the law unequal and therefore invalid. tation applies to the initial family exemption

[4] 1. (a) So far as concerns the discrimi- only. If the construction suggested by ap-
nations asserted to invalidate the act, it is to pellant in fact would bring the section in this
be observed that appellant is in no way in a respect within the condemnation of the fed-
position to be affected by any of them. Un- eral Constitution, that will not invalidate
der the long-established rule he is, for that the provision of the act, but will bring about
reason, in no position to assail their constitu- the rejection of appellant's construction and
tional validity. Ordelheide v. M. B. A., 226 the adoption of the other, to which the ob-
Mo. 206, 125 S. W. 1105, 32 L. R. A. (N. S.) jection does not apply.
965;. State v. Baskowitz, 250 Mo. loc. cit. 89,

[9] 6. The denial of family exemptions to
156 S. W. 945, Ann. Cas. 1915A, 477; Dan- nonresidents who fail to file the required re-
ciger v. Express Co., 247 Mo. 209, 152 S. W. turn is not a discrimination to which objec-
302. In these decisions the question will be tion can successfully be made. It is a penal-
found well reasoned, and the rule is shown ty imposed for failure to perform a duty
to be supported by the authorities generally. imposed by the act with respect to which
The suit is brought in behalf of appellant duty nonresidents stand in peculiar position,
"and all who will join him therein." None in that they are not in the jurisdiction. This
joined. In these circumstances the right to difference in situation furnishes a sound basis
question the constitutionality of any provision for a difference in means of securing the fil-
must find a foundation in appellant's owning of the return.
situation. (b) The same questions as to dis [10] IV. It is insisted that, since the act
criminations were presented in Ludlow-Say-exempts the income derived from the invest-
lor Wire Co. v. Wilbrinck, 275 Mo. loc. cit. ment business of insurance companies, it dis-
359, 205 S. W. 196, and the act was held good criminates against other corporations and in-
as against them.

dividuals. Insurance companies are sepa[5] 2. The objection that the act attempts rately taxed on their gross incomes in lieu to tax Income derived by nonresidents from of other taxes, and this tax and like taxes interstate commerce, and is therefore invalid, have been upheld heretofore. Massachusetts is not a vital one, since an act is not so con- Bonding & Ins. Co. v. Chorn, 274 Mo. 15, 201

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S. W. 1122; Pacific Express Co. v. Seibert, 1 WHITE, J. The petition in this case is in 142 U. S. 339, 12 Sup. Ct. 250, 35 L. Ed. 1035. two counts. The first count seeks to cancel & The exemption complained of applies solely certain deed executed in the state of Texas, to companies so taxed.

January 20, 1920, whereby William Bryan This disposes of the questions raised which Edmonston conveyed certain land in Dunkrequire discussion.

lin county, Mo., to the plaintiff and the deThe judgment is affirmed.

fendants, as tenants in common. The second

count is to determine title, alleging that the WOODSON and RAGLAND, JJ., concur. plaintiff is the owner in fee simple of the

GRAVES, P. J., concurs in separate opin- land described in the first count, and that the ion.

defendants claim title under the deed de

scribed in the first count. In each count it GRAVES, P.J. I concur in the result of this is alleged that the deed mentioned was execase. In so far as the opinion gives credence cuted before a notary public in the state of to the majority opinion in Smith v. Dirckx, Texas, but never delivered during the lifein 283 Mo. 188, 223 S. W. 104, 11 A. L. R. time of the grantor, and the only issue pre510, I do not agree. My views in that case sented is whether the deed was delivered. are expressed in my dissenting opinion, which The plaintiff was the half-brother and only was broader in substance than the principal heir at law of William Bryan Edmonston, opinion. As to other matters discussed in the grantor, and the defendants were his the present opinion, I concur. I do not think cousins. William Bryan Edmonston died at that my dissent in the Smith Case interferes Hornersville in Dunklin county in February, with a concurrence in the result of the pres- 1920. ent opinion.

The plaintiff to sustain the issues on his part introduced the following evidence:

It was admitted that William Bryan Edmonston died intestate.

Solon Davis, who lived in Hornersville,

testified that he visited William Bryan EdHARRISON v. EDMONSTON et al. (No. 22836.)

monston in February, 1920, just after the lat

ter had returned from a health resort. W. (Supreme Court of Missouri, Division No. 2. A. Edmonston, one of the defendants, was Feb. 23, 1923.)

present. The witness thus relates the sig

nificant incident of his visit: 1. Deeds Omw 194(1)-Due acknowledgment and certification only prima facie evidence of de "I got up to leave. Will Edmonston (W. A. livery.

Edmonston, the defendant] and myself were in Under Rev. St. 1919, § 2207 (Rev. St. the room, and Will said something to him 1909, § 2818), due acknowledgment of a deed about I would take the deed to the bank for and certification of the acknowledgment is only bim if he wanted me to, and Bryan called me prima facie proof of delivery.

back to the bed and pulled a deed out of his

gown and gave it to me and said: "Take it to 2. Deeds 56(3)-Parting with all control the bank and tell Mr. Rice to keep it for me unessential for delivery.

til it is called for,' and I did so, and turned To make delivery of a deed effectual, the the deed over to Mr. Rice. He talked in a grantor must part with all control over it, and low voice or whisper, and said: "Take it and place it beyond the possibility of recovery. tell them to keep it until it is called for. He

didn't call any name as to who would call for 3. Deeds Omw 56(2)-Delivery, matter of inten- it." tion. Delivery of a deed is a matter of intention,

Bryan Edmonston died about a week after without which delivery is not complete.

that. The witness, as requested, took the 4. Deeds w208 (2)-Delivery held not made. deed and delivered it to Mr. Rice in the Evidence held not to show delivery of a

bank. It was in an envelope, sealed, when deed which at grantor's death was among his it was handed to the witness, and he next papers in a bank.

saw it in the same envelope, when it was

opened by the public administrator. Appeal from Circuit Court, Dunklin Coun On cross-examination the witness stated ty; W. S. C. Walker, Judge.

that he had no conversation with William Suit by B. F. Harrison against W. A. Ed- Bryan Edmonston about what was in the monston and another.

deed except that it was made before he left Decree for plaintiff,

San Antonio, Texas; that witness read the and defendants appeal. Affirmed.

deed before he delivered it to Mr. Rice; it R. J. Smith and Hugh B. Pankey, both of was the deed in controversy. Kennett, for appellants.

J. E. Rice, witness for the plaintiff, testiMcKay & Jones, of Kennett, for respond-fied that he was cashier of the bank of Hornent.

ersville, Dunklin county, Mo.; that Solon

(248 S.W.) Davis gave him a deed, and that he put it in, Witness did not remember which one of the vault with Bryan's other papers, and them made the remark. Mr. Shannon and left it there until after his death. It was the nurse were in the room at the time. the deed in controversy. After Bryan Ed-Witness thought the nurse walked out, but monston's death the public administrator was not sure; she was in there a time or came and called for the papers that belonged two. W. A. Edmonston was not in the room to him, and witness delivered them, includ- at the time, but R. M. was. ing the deed. The public administrator looked On cross-examination the witness was askover the deed, and decided not to take charge ed how he got a Missouri form upon which of it, but left it in the bank, and the witness to write the deed. He replied that he was then permitted the defendant W. A. Edmon on a deal trading an ice plant in Stockdale, ston and R. M. Edmonston to put it on record. Tex., for some property in Southeast Mis

W. F. Rhew testified that he was public ad-souri, that he had some Missouri forms in ministrator in charge of the estate of Bryan his office, and used one of them. The witEdmonston; that he found the deed in con ness was then cross-examined about corretroversy among the papers of Bryan Ed- spondence. with Mr. McKay, attorney for monston; that Mr. Rice, cashier of the bank, the plaintiff. Mr. McKay wrote to Clifton, brought the deed to the witness with other March 20, 1920, asking him about the prepapapers of Mr. Edmonston.

ration of the deed, where he got his blank The defendant then offered evidence as form, and who was present when the deed follows: The deposition of George M. Clif-was executed. Clifton did not answer that ton, an attorney, who lived in San Antonio, letter, and on March 30th McKay wrote anTex., was read. He testified that at the re-other letter referring to the letter of March quest of W. A. Edmonston he went on the 20th and asking Clifton to reply. Clifton 20th day of January 1920, to see William then replied, and stated the circumstancBryan Edmonston at a sanitarium in San An- es of his going to see Mr. Edmonston and pre tonio, Tex. William Bryan Edmonston at paring the deed, and in his letter he said: the time looked as if he were in a low state

"Mr. Shannon took the acknowledgment, and of tuberculosis. He stated that he had a I handed the deed to the young man. I met. half-brother; that the two gentlemen pres- several days before, a Mr. Edmonston, who ent, W. A. Edmonston and R. M. Edmonston, stated that he was a relative of the sick man were his cousins, who had accompanied him at the hotel where I was stopping, who asked to Texas on a trip for his health. Witness me if I would go to the sanitarium as there said William Bryan Edmonston told him was a young man who wanted to talk to a law. that W. A. Edmonston had been a father to yer. I went, and did what the sick man rehim; that he and R. M. Edmonston were

quested. I know nothing about this that I

wish to conceal." very close to him, and assisted him in sickness; he thought he would not live long,

He was asked why the letter did not state and wanted to divide his property between that the deed was handed to R. M. Ed nhis two cousins and his half-brother.

He

ston; he answered that McKay's letter did asked the attorney to prepare some papers not call for everything that took place that in regard to his property, gave him data

day. and a description of the property, and asked

J. P. Shannon, notary public, San Antonio, him to prepare a deed. Witness advised

Tex., testified by deposition that he rememhim to write some restrictions in the deed, bered the deed; that he never saw William because he might live longer than he ex-Bryan Edmonston prior to the time of taking pected to. The sick man agreed that a stip- acknowledgment at the hospital; that Edulation should be written in the deed that monston seemed weak physically but bright the grantees were to support him and supply in mind. At the time he took the acknowlhis wants, and bury him. A debt of $500 was edgment Mr. Clifton, a nurse, and another against the property and the grantees were gentleman-one of the grantees--were presto relieve the property of that. This con- ent. The grantor did not make any stateversation took place while the other Edmon- ment about the deed at the time he took the stons were out of the room.

acknowledgment; he read the deed himself The witness prepared the deed, took it to and signed it. After witness had placed his Bryan Edmonston, who read it, discussed its seal on the deed he handed it to Mr. Clifton features, and acknowledged it before Mr. and Mr. Clifton passed it to the sick man. shannon, a notary public, who handed the Witness was in the room only a few minutes deed to the witness, witness handed it to the after that; he did not remember that Wil. sick man, and the sick man handed it to R. M. liam Bryan Edmonston said anything after Edmonston. Witness then was asked what Mr. Clifton handed him the deed. The last William Bryan Edmonston said to him at time he saw the deed William Bryan Ed. the time he delivered the deed. Witness re- monston had it. Witness and Mr. Clifton plied there was a little joking about it; some left the room at the same time, he in advance thing was said like this: “We have got him of Clifton; he saw Mr. Clifton hand the deed stung now; he has to pay all the bills.” | to William Bryan Edmonston, and did not

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