Opinion
No. 39824.
February 25, 1946.
1. CONSTITUTIONAL LAW: Counties: Words and Phrases: Counties as Agencies of State. Counties are sometimes treated as agencies of the state.
2. CONSTITUTIONAL LAW: Words and Phrases: Meaning of "Agencies": Considering Entire Instrument. In considering the meaning of the word "agencies" in one section of the Constitution, the instrument must be read as a whole, insofar as other parts may throw light upon the subject under investigation.
3. CONSTITUTIONAL LAW: Counties: Words and Phrases: Agencies of the State: No Application to Counties. An examination of related portions of the 1945 Constitution indicates that the agencies of the state referred to in Sec. 23 of Art. IV, did not include counties, but referred to the administrative agencies of the state under a centralized executive control.
4. CONSTITUTIONAL LAW: Counties: Taxation: Mandamus: Examination of Journal of Convention: Sec. 23, Art. IV, Not Applicable to Counties: January 1 Fiscal Year Valid: House Bill 721 Constitutional: Duty to Certify Tax Anticipation Warrants. An examination of the Journal of the Constitutional Convention indicates that Sec. 23, Art. IV, providing a fiscal year commencing July 1 for agencies of the state had no application to counties. House Bill 721, providing a fiscal year commencing January 1 for counties, is constitutional, and tax anticipation warrants should have been certified by the county clerk and treasurer of Jackson County.
5. CONSTITUTIONAL LAW: Counties: Failure to Change Fiscal Year of Counties. If the Constitutional Convention had intended to change the fiscal year of counties it would have said so, since it was framing a fiscal plan not only for the state and its central agencies, but also for counties, townships and cities.
Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
AFFIRMED.
Edwin A. Harris for appellants.
(1) The next tax revenues of Jackson County will accrue and be collected after July 1, 1946, and must be used to pay the ordinary and usual expenses incurred in conducting the necessary business of the county for its fiscal year beginning July 1, 1946. Such tax revenues cannot be used to pay tax anticipation notes of Jackson County issued in January, 1946, for the purpose of providing funds to pay the current operating expenses of the county for the period beginning January 1, 1946, and ending June 30, 1946. The lower court erred in ruling to the contrary. Sec. 23, Art. IV, Constitution of 1945; Sec. 7837, R.S. 1939; State ex rel. Exchange Bank v. Allison, 155 Mo. 325, 56 S.W. 534; State ex rel. Natl. Bank v. Johnson, 162 Mo. 621, 63 S.W. 390; State ex rel. Egger v. Payne, 151 Mo. 663, 52 S.W. 412; State ex rel. Furby v. Continental Zinc Co., 272 Mo. 43, 197 S.W. 112. (2) A county is an agency of the state within the meaning of the phrase "the state and all its agencies" in Section 23 of Article IV of the Constitution of Missouri. The lower court's ruling to the contrary was erroneous. Sec. 23, Art. IV, Constitution of 1945; State ex rel. St. Louis Police Commrs. v. St. Louis County Court, 34 Mo. 546; State ex rel. McWilliams v. Little River Drain, District, 269 Mo. 444, 190 S.W. 897; 14 Am. Jur., pp. 186, 188; 20 C.J.S. 754; McQuillin, Municipal Corporation (2 Ed.), Revised Vol. 1, Sec. 88, p. 252, and Sec. 136, p. 414; Tulare County v. City of Dinuba, 205 Cal. 111, 270 P. 201; Church v. Lincoln County, 100 Mont. 238, 46 P.2d 681; Bazzoli v. Larson, 40 Ohio App. 321, 178 N.E. 331; Town of Saluda v. Polk County, 207 N.C. 180, 176 S.E. 298; State v. Schinz, 194 Wis. 397, 216 N.W. 509. (3) Even if it be held that a county is not an agency of the state within the meaning of the phrase "the state and all its agencies" in Section 23 of Article IV of the Constitution of Missouri, nevertheless said Section 23 changes the fiscal year of the counties because a county is an integral part of the state and the constitutional provision changing the fiscal year of the state in itself changes the fiscal year of the counties within the state. The lower court erred in ruling otherwise. Sec. 23, Art. IV, Constitution of 1945; Sec. 1, Art. VI, Constitution of 1945; State ex rel. Exchange Bank v. Allison, 155 Mo. 325, 56 S.W. 534; Ray County, etc., v. Bently, 49 Mo. 236, 242; McClellan v. St. Louis, 170 S.W.2d 131; Clark v. Adair County, 79 Mo. 536; Kansas City v. Neal, 122 Mo. 232, 26 S.W. 695. (4) House Bill No. 721 enacted by the 63rd General Assembly purporting to establish as the fiscal year of the several counties of the state the calendar year commencing on January 1st and terminating on December 31st violates Section 23 of Article IV of the Constitution and is unconstitutional and void. The lower court erred in sustaining the validity of such statute. Sec. 23, Art. IV, Constitution of 1945.
Hilary A. Bush, County Counselor, Roy B. Thomson, Robert B. Pizzell and Stinson, Mag, Thomson, McEvers Fizzell for respondents.
(1) For many years the fiscal year of the counties of the State has been the calendar year. Wilson v. Knox County, 132 Mo. 387, 34 S.W. 477; State ex rel. Vaughan v. Appleby, 136 Mo. 408, 37 S.W. 1122; State ex rel. Exchange Bank v. Allison, 155 Mo. 325, 56 S.W. 534. (2) Heretofore property has been assessed for general taxation on June 1 in each year. Secs. 10950, 10953, 10957, 10958, 10963, 10970, R.S. 1939. (3) The statutes recently enacted by the 63rd General Assembly eliminated the assessment of June 1, 1945, provided for the assessment of property on January 1 in each year beginning January 1, 1946, and established the fiscal year of counties as the calendar year. House Bill Nos. 369, 382, 469, 721. (4) A county is not an agency of the state within the meaning of the phrase, "the state and all its agencies," in Section 23 of Article IV of the Constitution of Missouri. The word "agencies" as used in such sections means the State agencies such as the Departments of Revenue, Education, Highways, Conservation and Agriculture, provided for in Section 12 of Article IV of the Constitution, and the "boards, bureaus, commissions and other agencies of the State," referred to in said Section 12 of Article IV. The meaning of the phrase "the state and all its agencies" in Section 23 of Article IV of the Constitution will not be determined merely from an examination of the words themselves. Such meaning will be deduced from an examination and consideration of the Constitution as a whole. State v. Adkins, 284 Mo. 680, 225 S.W. 981; State ex rel. City of Carthage v. Hackmann, 287 Mo. 184, 229 S.W. 1078. (5) Other provisions of the Constitution establish that counties are not included in the phrase "the state and all its agencies" appearing in Section 23 of Article IV. Secs. 12, 13, 23 of Art. IV of the Constitution: Secs. 22-28, inclusive, Art. IV, Constitution, bearing the heading "Revenue": Sec. 31, Art. I of the Constitution; Sec. 47, Art. III, of the Constitution; Sec. 1, Art. VI of the Constitution; Sec. 6, Art. X of the Constitution; Sec. 26(a), Art. VI of the Constitution. (7) Section 26(a) of Article VI of the Constitution relating to the incurring of debt by counties and other subdivisions of the State, was taken from Section 12 of Article X of the Constitution of 1875, as amended. Under the old Constitution it was held that the word "year" in such section meant a "calendar year." Union Trust Savs. Bank v. City of Sedalia, 300 Mo. 399, 254 S.W. 28; Dennig v. Swift Co., 339 Mo. 604, 98 S.W.2d 659; Clarence Special School District v. School District No. 67, 341 Mo. 178, 107 S.W.2d 5. The framers of the new Constitution are presumed to have known of these decisions construing the old Constitution when they drafted the new Constitution. State ex rel. Board of Control of St. Louis School and Museum v. St. Louis, 216 Mo. 47, 115 S.W. 534; Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657. (8) Such decisions are, therefore, applicable to Section 26(a) of Article VI of the new Constitution and, in such section, the word "year" means the "calendar year." The framers of the new Constitution never intended that counties should be on a calendar year basis for the purpose of incurring debt under Section 26(a) of Article VI and that they should come within the scope of Section 23 of Article IV establishing a fiscal year beginning July 1 for the State and its agencies. Section 3 of Article X of the new Constitution in referring both to a fiscal year and a calendar year indicates that the members of the Constitutional Convention recognized that the State and its agencies would operate on the basis of a fiscal year beginning July 1st as provided in Section 23 of Article IV, but that the counties and other subdivisions of the State, if authorized by the Legislature, might operate on a calendar year basis. In construing a constitutional provision, the intent of the framers of the document is paramount. State ex rel. Hussman Refrigerator Supply Co. v. St. Louis, 319 Mo. 497, 5 S.W.2d 1080; State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543. (9) If there is doubt as to the meaning of a constitutional provision, extrinsic evidence may be considered. State ex rel. Donnell v. Osburn, 347 Mo. 469, 147 S.W.2d 1065; State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363; In re Oppenstein, 289 Mo. 421, 233 S.W. 440. (10) The "Address to the People" adopted by the Constitutional Convention, establishes that the Convention intended by Section 23 of Article IV of the Constitution to fix a fiscal year for the State and its departments, but did not intend to fix a fiscal year for counties. "Address to the People" of the Constitutional Convention, p. 8; Sec. 10909, R.S. 1939. (11) The cases relied upon by the appellants are not in point. State ex rel. St. Louis Police Commrs. v. St. Louis County Court, 34 Mo. 546; State ex rel. McWilliams v. Little River Drain. District, 269 Mo. 444, 190 S.W. 897. (12) Section 23 of Article IV of the Constitution establishing a fiscal year for the State does not make it mandatory that counties have the same fiscal year. The General Assembly, by House Bill No. 721, effective December 13, 1945, legally made the calendar year the fiscal year of counties. The mention of the State agencies excludes from the phrase subdivisions of the State, such as counties, cities and others, under the doctrine expressio unius est exclusio alterius. Schlafly v. Baumann, 341 Mo. 755, 108 S.W.2d 363; Keene v. Strodtman, 323 Mo. 161, 18 S.W.2d 896; State ex rel. Kansas City Power Light Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513. (13) The established rules of construction applicable to statutes apply also to the construction of the Constitution. State ex rel. Buchanan County v. Imel, 242 Mo. 293, 301, 146 S.W. 783; State ex rel. Carthage v. Hackmann, 287 Mo. 184, 229 S.W. 1078. (14) House Bill No. 721 enacted by the 63rd General Assembly, establishing as the fiscal year of counties the calendar year, is constitutional and valid. Statutes are strongly presumed to be constitutional. State v. Ward, 328 Mo. 658, 40 S.W.2d 1074; State ex rel. Judah v. Fort, 210 Mo. 512, 109 S.W. 737; Ex parte Loving. 178 Mo. 194, 77 S.W. 508. (15) Statutes will be upheld unless their invalidity appears beyond a reasonable doubt. Ward v. Public Service Comm., 341 Mo. 227, 108 S.W.2d 136; Hines v. Hook, 338 Mo. 114, 89 S.W.2d 52; Thompson v. St. Louis S.F. Ry. Co., 334 Mo. 958, 69 S.W.2d 936. (16) When the meaning of a constitutional provision is in issue, great weight will be given to a contemporaneous construction placed on such provision by the Legislature. State ex rel. Carthage v. Hackmann, 287 Mo. 184, 229 S.W. 1078; State ex rel. O'Connor v. Reidel, 329 Mo. 616, 46 S.W.2d 131; Gantt v. Brown, 244 Mo. 271, 149 S.W. 644.
By mandamus in the circuit court of Jackson county the respondent judges of the county court of that county obtained a peremptory writ requiring the appellants county clerk and county treasurer to execute, certify and register $165,000 in tax anticipation notes, dated January 18, 1946, and payable out of the county general revenue fund for the fiscal and calendar year beginning January 1, 1946, the issuance of which notes had been authorized by the county court under Sec's 7837-7847. On this appeal the appellants renew their challenge made in the court below of the legality and validity of the notes, under Sec. [11] 23, Art. IV, Const. Mo. 1945, and certain statutes to be mentioned.
Reference to sections of our statutes are to R.S. 1939 and same section numbers in Mo. R.S.A., unless otherwise indicated.
The principal issue in the case is whether said Section 23 of the new Constitution, which provides the fiscal year "of the state and all its agencies" shall begin on July 1 each year, includes and applies to counties. Appellants contend that it does. The question is pressing because the General Assembly has passed with an emergency clause and the Governor on December 18, 1945 approved. House Bill No. 721 providing that the fiscal year of counties shall commence on January 1 save in those with special charters providing otherwise. This statute would be unconstitutional if appellants are right.
Appellants' contention that the constitutional provision, supra, does apply to counties, is based on the fact that it expressly covers all the "agencies" of the State. Authorities are cited holding that a county is a state agency. Thus, it was ruled in State ex rel. St. Louis Police Com'rs v. St. Louis County Court, 34 Mo. 546, 572, that "the county is not a private corporation, but an agency of the state Government. . . ." And State ex rel. McWilliams v. Little River Drain. Dist., 269 Mo. 444, 457, 190 S.W. 897, 900, declared that in dealing with public highways, etc., "the several counties and the county courts thereof are but agencies, or agents of the State; . . ." Other more general authorities referred to are: 14 Am. Jur., sec. 5, p. 188; 20 C.J.S., sec. 1a, p. 754; 1 McQuillin Municipal Corporations (2 Ed.), sec. 88, p. 252, sec. 136, p. 414.
Still other Missouri decisions are cited to show that even if a county is not an "agency" of the state, it is at least a political subdivision thereof; and appellants argue that Sec. 23, supra, of the new Constitution must cover counties since it covers the whole state of which the counties are a part. In this connection State ex rel. Exchange Bank v. Allison, 155 Mo. 325, 331, 56 S.W. 467, 469 is stressed. There, the statute of 1865 made the fiscal year of the state commence on October 1, and subdivisions were not mentioned. In 1868 the statute was amended by substituting January 1 for October 1 as the date of commencement. The court en banc ruled the change applied to counties.
The reasoning of the decision was that the revenue of both the State and counties was collected at the same time by the same officers; and if the Legislature had intended to set one time limit for the State and another for the counties it would have said so in the amendment, failing in which it was to be concluded that both were intended to be affected alike. Further, the opinion showed that when the foregoing amendment was enacted, changes were made in other statutes to conform thereto — as that the date of settlement by the county collector with the county court was shifted from December to March, thus indicating county taxes were affected. So much for appellants' contentions.
Respondents contend the mere use of the word "agencies" in the particular constitutional provision, Sec. 23, Art. IV, supra, does not warrant the conclusion that counties were intended to be included, notwithstanding they are agents of the State in many local matters, and in all matters subordinate to it. The well established rule is invoked that the instrument must be read as a whole, insofar as other parts may throw light on the subject under investigation. State ex inf. McKittrick v. Williams, 346 Mo. 1003, 1013, 144 S.W.2d 98, 103(10). And respondents maintain that the word "agencies," as so interpreted, means administrative agencies of the State under a centralized executive control. They point to many other sections of the Constitution indicating that the word does refer to these larger agencies.
Thus, Sec. 31, Art. I definitely treats state agencies as administrative agencies. It says no commission, bureau, board "or other administrative agency" shall have authority to make a rule fixing a fine or imprisonment as punishment. Sec. 47, Art. III denominates the controlling authority over state parks as "an agency." Sec. 12, Art. IV declares the executive department shall include the six elective state officers, and ten departments; and that unless discontinued, all present or future administrative boards, bureaus, commissions and "other agencies" of the State shall be assigned by the Governor to the proper department. Under Sec. 13, Art. IV, the state auditor post-audits the account of all "state agencies"; but for "political subdivisions" he audits them. Sec. 22, Art. IV empowers the Department of Revenue to collect all taxes due the state, except that county and township collectors collect the state tax on tangible property until otherwise enacted. That department also prepares for the Governor and General Assembly [12] data on receipts and expenditures of all "state agencies."
Then comes Sec. 23, involved in this case. In connection with shifting the beginning of the fiscal year for the "state and all its agencies" from January 1st to July 1st, the section also authorized a special legislative appropriation for the six months ending June 30, 1945. This evidently was to take up the slack caused by the change in the beginning of the fiscal year. But that in turn plainly implies the shift was regarded as affecting only such entities as were supported by legislative appropriations: and that no such change had been made in counties requiring similar provision for or authorization to them.
It will be noted that the foregoing Article IV of the Const. 1945 entitled "Executive Department", deals with the state at large. The provisions covering "state agencies" are many, but counties are only mentioned twice [Sec's 22 and 37], and legal or political subdivisions twice [Sec's 13 and 37]. On the other hand, in Article VI, entitled "Local Government", the first section declares the existing counties "are hereby recognized as legal subdivisions of the state." And thereafter counties are dealt with in almost every section. In particular, it should be observed that although Sec's 22 and 24 of Art. IV had already dealt with budgets for "state agencies", yet they appear to have been regarded as not covering counties, because Sec. 24, Art. VI provides [or, unnecessarily provides again if the above view is incorrect] that "all counties, cities, other legal subdivisions of the state" shall have an annual budget.
We shall follow these provisions of the new Constitution of 1945 only a little further. Sec. 3 of Art. X is important. It provides in part that all taxes "shall be payable during the fiscal or calendar year in which the property is assessed." Respondents suggest that this provision was inserted in order to permit the state and its agencies to operate on the basis of the new fiscal year provided therein by Sec. 23, Art. IV, supra, and also to allow counties to continue to operate on a calendar year basis under Sec. 26a, Art. VI. We shall not attempt to rule on these matters further than is necessary to the decision of this case. But we agree that Sec. 3, Art. X, supra, clearly furnishes a basis upon which counties may operate by calendar years, whereas the state and agencies covered by Sec. 23 operate on a fiscal year basis, beginning July 1.
An examination of the Journal of the Constitutional Convention discloses that the main purpose prompting the adoption of Sec. 23 was to facilitate state bookkeeping, so to speak. Thus it was stated by Dr. McCluer, on the 145th day, Friday, May 19, 1944, p. 2417: "The principal change is in the date of the fiscal year from the calendar year to the dates as indicated, a change which is desirable to bring the fiscal business of the state in line with that of the nation and for other reasons that were set forth by representatives of the State Auditor's office."
Again, Mr. Hemphill, apparently reading from a memorandum prepared by the State Auditor, said: "The efficiency of every department of the state government would be materially benefited and the lost motion which occurs during the first six months period following the meeting of the Legislature will be done away with. . . .
"If this change is made, the only confusion which would result is the confusion which would still exist in cities and counties where the fiscal year and the calendar year coincide. However, this could easily be corrected by the Legislature when it next meets, by creating a statute fixing the fiscal year of the county and the city the same as the fiscal year of the state."
This obviously was a concession that Sec. 23, supra, had not taken the matter out of the hands of the Legislature, and therefore had left them free to put the fiscal year of counties on a calendar basis as they have done by House Bill 721, supra.
Only one more thing. Going back to the Exchange Bank-Allison case, reviewed in the tenth preceding paragraph. The point was made in that case that since the state and counties had been collecting revenue at the same time and in the same way, if the Legislature had intended to create a fiscal year for the state different from that for the counties, it would have so provided in the amendatory act. Here, we think that argument points the other way. The Constitutional Convention was adopting an entire new Constitution — unlike a legislative act dealing only with one subject. The Convention was framing a fiscal plan not only for the state and its central agencies, but also for counties, townships and cities. Therefore, is it not [13] fair to say that if the Constitutional Convention had intended to change the fiscal year for counties it would have said so? As stated, Art. 3, Sec. X expressly contemplates that taxes may be made payable "during the fiscal or calendar year" in which the property was assessed, which certainly is a concession that it may be assessed on the basis of either period.
The judgment of the circuit court is affirmed. All concur.