Opinion
July 5, 1939.
1. TAXATION: Water Mains. Under Section 9977, Revised Statutes 1929, as amended by the Laws of 1937, all mains, etc., of a water company are taxable in the school district where located.
2. TAXATION: Constitutional Law. That an amendment to the statute classifying water mains for taxation in the school district where located is arbitrary must appear beyond a reasonable doubt.
3. TAXATION: Constitutional Law: Mandamus. The office of mandamus is to execute, not adjudicate.
Under extraordinary emergencies and in matters of more than local concern, the Supreme Court has ruled in mandamus the question of the constitutionality of statutes and also where the statute was clearly and obviously unconstitutional.
An amendment of a statute making water mains taxable where located is presumed to be constitutional.
4. TAXATION: School Districts: Mandamus. Where water mains formerly assessed for taxation in a school district where the plant and reservoir were located were excluded from taxation by an amendment to the statute, mandamus would not lie to compel the assessor to tax them in such district after the amendment, since the issuance of a peremptory writ would affect others not parties to the action, and an extraordinary emergency was not presented by the record but it was a matter of local concern only, and the amendment to the statute was not clearly and obviously unconstitutional.
WRIT DENIED.
Joseph T. Davis for relators.
(1) Mandamus is the proper remedy to secure a lawful assessment and collection of taxes by respondents, said actions being purely ministerial in character. Mo. Const., Art. VI, Sec. 3; 38 C.J., pp. 590, 690; State ex rel. v. Mason, 153 Mo. 23; State ex rel. v. Meier, 143 Mo. 439. (2) In determining the duties of respondents it is proper to inquire into the constitutionality of the statutes under which respondents purport to act. State ex rel. v. Burley, 16 L.R.A. (N.S.) 266; State ex rel. v. Hackman, 203 S.W. 960; Welch v. Swasey, 79 N.E. 745; State ex rel. v. Roach, 258 Mo. 541; State ex rel. v. Messerly, 198 Mo. 351; State ex rel. v. Turner, 210 Mo. 77; State ex rel. v. Gordon, 236 Mo. 142; State ex rel. v. Duncan, 63 S.W.2d 138. (2) Respondents have the power, right and authority to alter, amend and change the assessment of the county assessor. R.S. 1929, secs. 9812, 9854, 9946. (a) The school districts and municipalities of the State are not necessary parties to this action. (b) Relators are pursuing the proper legal remedy and are without other adequate available relief. Mo. Sup. Ct., Rule 32; Furniture Co. v. Craig, 160 Mo. App. 91; 38 C.J., pp. 561, 567, sec. 32; State ex rel. v. Homer, 249 Mo. 58; State ex rel. v. Wilson, 297 S.W. 419. (c) Since relators made a demand upon the County Court, Neaf, the County Assessor, and Miller, the County Clerk, to alter and change the assessment, and, since any further demand would have been unavailing, and, since the validity of this statute and the proper administration of our law of taxation is a question of grave public importance, no further action on the part of the relators is necessary for the issuance of this writ of mandamus. State ex rel. v. Wilson, 158 Mo. App. 105; Pugsley v. Sellmeyer, 30 A.L.R. 1212; United States v. Saunders, 124 F. 124; State ex rel. v. Torrey, 33 S.W.2d 131; 38 C.J., pp. 577, 578; State ex rel. v. Jones, 41 S.W.2d 393; State ex rel. v. Stuckey, 78 Mo. App. 533. (d) Respondents' contention that relators' right does not appear on the face of the petition is wholly without merit, there clearly appearing thereon the question of the validity of a state statute which is within the jurisdiction of this court. (e) It is within the discretion of this court, upon motion of relators, to strike out parts of respondents' return. R.S. 1929, secs. 783, 785; Shohoney v. Railroad Co., 231 Mo. 131; Walrath v. Crary, 222 S.W. 895; Pier v. Heinrichoffen, 52 Mo. 333. According to the established rule, respondents' general denial as set forth in their return is a nullity. State v. Jones, 41 S.W.2d 393; State ex rel. v. Broaddus, 234 Mo. 331. In considering the constitutionality of the statute, as applied to the assessment of water mains, the court will not consider other provisions of the statute when there is no issue of fact thereon. State v. Halbrook, 279 S.W. 395; State v. Gatlin, 267 S.W. 797; State v. Rector, 40 S.W.2d 639; Bacon v. Ranson, 56 S.W.2d 786; State ex rel. v. St. Louis, 241 Mo. 231. Even though certain disputed questions of fact are presented by the pleadings in this proceeding, this will not constitute a ground for the refusal of the peremptory writ in this proceeding. Where the question presented is the validity of a statute, it is no defense that respondents are acting in compliance with said statute if it is void. (3) Prior to 1937 all mains, pipes, meters and equipment of water companies were taxed as realty. By amendment to the State statutes the mains, pipes, meters and equipment of water companies supplying two or more incorporated municipalities are taxed as personality where situated. Sedalia Water Co. v. Harmsburger, 14 S.W.2d 554; Joplin Water Works Co. v. Jasper County, 38 S.W.2d 1068. The 1937 Amendment to Section 997, Revised Statutes is unconstitutional because: (a) It is in contravention of the State's Constitution forbidding the adoption of a local or special law in any case where a general law could be made applicable unless the classification used is a necessary and reasonable one. Mo. Const., Art. IV, Sec. 53; City of Springfield v. Smith, 19 S.W.2d 1; Laws 1937, p. 547; State ex rel. v. Miller, 100 Mo. 439; State ex inf. v. Armstrong, 286 S.W. 705; State ex rel. v. Hedrick, 294 Mo. 21; Massey-Harris Harvester Co. v. Fed. Reserve Bank, 104 S.W.2d 385; Waterman v. Chicago Bridge Iron Works, 41 S.W.2d 575; State ex rel. v. Knight, 21 S.W.2d 767; State v. Loomis, 115 Mo. 307; State v. Julow, 127 Mo. 163; State ex rel. v. Kimmel, 256 Mo. 611; State ex rel. v. Roach, 258 Mo. 541; State ex rel. v. Hermann, 75 Mo. 340. (b) It is in contravention of the Fourteenth Amendment to the Constitution of the United States which prohibits any state from denying a citizen the equal protection of the laws. State of New York ex rel. v. Mensching, 187 N.Y. 8, 79 N.E. 884, 10 L.R.A. (N.S.) 625; Cotting v. Godard, 46 L.Ed. 92, 183 U.S. 79.
C.W. Detjen, Arthur U. Simmons, Roy McKittrick, Attorney General, and Tyre Burton, Assistant Attorney General, for respondents; M.P. Phillips of counsel.
(1) Mandamus cannot be employed to determine the issues in this controversy. (a) In this case the issues are complex, many interests not represented are concerned with the outcome; the respondents have acted exactly as directed by statute, and the statute must, for the purposes of this cause, be presumed constitutional. The relators do not have a clear legal right to the relief sought, and the questions raised are not of such great public importance that mandamus may be employed. State ex rel. v. McIntosh, 205 Mo. 589; 38 C.J., pp. 582, 600, secs. 56, 75; State ex rel. v. Wenom, 326 Mo. 352, 32 S.W.2d 59; State ex rel. v. Thatcher, 92 S.W.2d 640; State ex rel. v. Kansas City, 163 S.W. 854; Ferris Ex. Leg. Rem., secs. 194, 196, 201; Miners v. Clark, 158 S.W. 597; Thomas v. Buchanan, 51 S.W.2d 95; Hines v. Hook, 89 S.W.2d 52; State ex rel. v. Hackman, 205 S.W. 161; State ex rel. v. Brand, 265 S.W. 989; White v. Henderson, 265 S.W. 991. Obviously the collector, county clerk and county court had no authority to change the assessment as demanded by relator. At the time this petition was filed the assessor had no further jurisdiction over the matter; the Board of Equalization and Tax Commission have never acquired jurisdiction as provided by law, and mandamus should not be employed to require these respondents to do something they have no legal right to do. Secs. 9800, 9808, R.S. 1929; Laws 1933, p. 424; Hamilton v. Brown, 72 S.W. 640, 172 Mo. 374; State ex rel. v. Thornhill, 174 Mo. App. 469, 160 S.W. 558; State ex rel. v. Becker, 9 S.W.2d 153. (b) Mandamus is a discretionary writ which should be denied relators in view of their failure to pursue available remedies before the Board of Equalization, the State Tax Commission, or to seek a declaratory judgment or injunction. Secs. 9814, 9854, R.S. 1929; State ex rel. v. Bank, 163 S.W. 945; 38 C.J., p. 544, sec. 7; Rule 32, Sup. Ct. (c) The statute in question ought not be declared unconstitutional in view of the presumption of its validity and the fact the interested school districts cannot be heard. 38 C.J., p. 853. (2) The Act known as Laws 1937, page 545, is constitutional and a valid exercise of the taxing power. (a) The Legislature has broad powers with respect to taxation and classification of property for taxing purposes. State v. Taylor, 104 S.W. 242; Elting v. Hickman, 172 Mo. 237, 72 S.W. 700; Ex parte Asotsky, 319 Mo. 810; 61 C.J., p. 126; Mo. Const., Art. X, Sec. 1; State v. C.B. Q., 152 S.W. 58; Embree v. Kansas City, 166 S.W. 282; State ex rel. v. Burton, 182 S.W. 746; North West v. Waddill, 138 Mo. 628; State ex rel. v. Henderson, 160 Mo. 190; Bachtel v. Wilson, 204 U.S. 41; Southwestern v. Texas, 217 U.S. 118; Davis v. Jasper, 300 S.W. 493. (b) Water pipes and similar property are not necessarily real estate, and the Legislature may classify them as personal property without violating constitutional law. State ex rel. v. Harnsberger, 14 S.W.2d 554; Laws 1937, p. 545; Joplin v. Jasper, 38 S.W.2d 1068; 57 A.L.R. 869. (c) The courts will exercise caution in declaring acts of the Legislature unconstitutional and will uphold them if they can be given any valid construction. State ex rel. v. City, 99 S.W. 139; State ex rel. v. Louisiana, 114 S.W. 956, 215 Mo. 479; Sherrill v. Brantly, 66 S.W.2d 529; State ex rel. v. Kirby, 168 S.W. 746; Lefman v. Schuler, 296 S.W. 808; State v. Buente, 256 Mo. 227. (d) Since the only basis for jurisdiction by this court is the constitutional question, and since the statute must be presumed constitutional, this court should decline jurisdiction. Sup. Ct., Rule 32; Perkins v. Burks, 61 S.W.2d 756; State ex rel. v. County Court, 277 S.W. 934; Thomas v. Buchanan, 51 S.W.2d 95. (e) The act in question is remedial, beneficial, uniform and general in its nature. State ex rel. v. Standard, 218 Mo. 1; State ex rel. v. Hartman, 253 S.W. 991. (f) A change in the classification of water mains and similar property for taxing purposes is not violative of the Federal Constitution. U.S. Const., Amends. V, XIV; Massachusetts v. Chorn, 201 S.W. 1122; American v. St. Louis, 270 Mo. 40, 192 S.W. 402; Hines v. Hook, 89 S.W.2d 52; Sinclair v. Day, 11 F.2d 664. Igoe, Carroll, Keefe McAfee for St. Louis County Gas Company, amicus curiae.
(1) The provision of the statute that property of the class described therein shall be treated as personal property for tax purposes affects only the "situs" for taxation, since realty and personalty are taxable on the same basis. Mo. Const., Art. X, Sec. 4. The Legislature has power to designate property as realty or personality and to fix the situs for taxation as long as there is no purely arbitrary discrimination in doing so. 1 Cooley on Taxation (4 Ed.), p. 602, sec. 288; 3 Cooley on Taxation (4 Ed.), p. 2145, sec. 1065; 61 C.J., pp. 125, 127, secs. 57, 58; School District of Plattsburg v. Bowman, 178 Mo. 654, 77 S.W. 880; State ex rel. K.C., St. J. C.B. Ry. Co. v. Severance, 55 Mo. 378. (2) The legislative classification, distinguishing between gas and water distributing systems used to serve "two or more incorporated municipalities" and systems not so used, is amply justifiable in view of the facts among others — (a) That the laying and maintenance of gas and water pipes imposes a greater burden and creates more troublesome problems in the case of an incorporated municipality than in the case of less densely populated unincorporated territory. (b) That, whereas the burden in that respect is only as is necessary to obtain the benefit of the service rendered when the distribution system is used to serve the municipality alone, so that the benefit may fairly be regarded as balancing the burden, that is not true where the pipes and related equipment maintained in the municipality's streets and other public places are used to serve another municipality also. In the latter case there is not only no balancing benefit, but the burden on the municipality is greater. (3) a legislative classification does not violate constitutional requirements unless it is plainly without any basis in reason — that is, unless it is entirely arbitrary. And in determining whether or not it is arbitrary the following, among other, rules are to be applied: (a) The Legislature has a broad discretion in the matter of classification, the test of its exercise of that discretion being not wisdom but good faith; and in taxation there is a broader power of classification than in some other exercises of legislative power. (b) When a classification is attacked, and any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts must be assumed. (c) A classification need not depend upon great or conspicuous differences. It is sufficient if the legislators could regard the differences as practical ones without doing violence to common sense. (d) A classification having some reasonable basis is not invalid merely because it is not made with mathematical nicety or because in practice it results in some inequality. (e) A classification is not invalid merely because it affects only a few persons or corporations — or even if it affects only one — where it is broad enough to apply to others if they exist. (f) With respect to classification as with respect to other matters, a statute is presumed to be valid and constitutional, and a classification may not be held to be arbitrary unless shown to be so beyond a reasonable doubt. 1 Cooley, Taxation (4 Ed.), pp. 712-717, sec. 334; 61 C.J. 126-129, sec. 58; New York Rapid Transit Corp. v. New York, 303 U.S. 573, 82 L.Ed. 1024, 58 Sup. Ct. 721; Carmichael v. So. Coal Coke Co., 301 U.S. 495, 81 L.Ed. 1245, 57 Sup. Ct. 868; Ex parte Asotsky, 319 Mo. 810, 5 S.W.2d 22, 62 A.L.R. 95; Massey-Harris Harvester Co. v. Fed. Reserve Bank, 340 Mo. 1133, 104 S.W.2d 385, 111 A.L.R. 133; Hines v. Hook, 338 Mo. 114, 89 S.W.2d 52; State ex rel. Hollaway v. Knight, 323 Mo. 1241, 21 S.W.2d 767.
Action in mandamus. Relators seek to compel the assessment and taxation of the mains, pipes, hydrants and appurtenances of the St. Louis County Water Company as if the same were located in school district No. 24 of St. Louis County, known as Lake School District. The power plant and reservoirs of the company are located in said district. The water company serves St. Louis County, including many school districts and municipalities in said county. The mains, pipes, hydrants and appurtenances prior to 1939, had been assessed in Lake School District as appurtenant to the land on which the power plant is located. Of course, said assessments were made on the theory that the appurtenances were a part of said land. In 1937, Section 9977, Revised Statutes 1929 (Laws 1937, pp. 545, 546, 547), was amended by providing as follows:
"All mains, pipes, meters and other equipment, constituting parts of a single, common or unified distributing system for supplying water or gas to two or more incorporated municipalities, belonging to any water company or gas company, firm, corporation, association or person, shall be treated for tax purposes, as personal property and shall be taxable as such where situated."
Under the amendment the mains, pipes, hydrants and appurtenances were assessed for the year 1939 where located. The assessor refused to change the assessment and locate said property in Lake School District as a part of the real estate of the company. Thereupon relators instituted an action in the circuit court to enjoin the assessor from assessing said property where located on the ground that the amendment to Section 9977, Revised Statutes 1929, is unconstitutional. The circuit court refused to issue a temporary injunction restraining the assessment of the property where located and set the cause for trial at the May Term, 1939, of said court. Thereupon plaintiffs (relators here) dismissed said petition in the circuit court and petitioned this court for relief by mandamus.
Relators argue that, under Section 53, Article IV, Constitution of Missouri, said amendment is an arbitrary and unreasonable classification of said property for taxation. It is uniformally ruled that it must so appear beyond a reasonable doubt. They also argue that said amendment violates the equal protection clause of the Federal Constitution.
Respondents insist that the questions should not be ruled in mandamus. The amendment is presumed to be constitutional. If possible, under the general rule, the question of the validity of the amendment should be given deliberate consideration upon a full trial of the cause. "The office of mandamus is to execute not adjudicate." The writ may be freely used to compel the performance of ministerial official duties. Even so, the right to the writ must not be doubtful. However, under extraordinary emergencies and in matters of more than local concern, we have ruled in mandamus the question of the constitutionality of statutes. We also have ruled such questions in mandamus where the statute was clearly and obviously unconstitutional. In this connection it should be stated that in Missouri there are thirty privately owned water systems serving the public. Each of three of said systems, including the St. Louis County Water Company, serve two or more municipalities. Each of the other water systems serve only one municipality. For ought that appears, the said three tax-paying water systems are not complaining of the validity of the amendment.
On the record the Lake School District is the only complainant. If relator, the Lake School District, is directly interested in the taxation of said property as a part of the real estate of the company, by the same token the many municipalities and school districts in St. Louis County are directly interested in the taxation of said property where located. In other words, the issuance of a peremptory writ would affect others not parties to this action, and for that reason deliberate consideration should be given to the issues. Furthermore, the existence of an extraordinary emergency is not presented by the record. It is a matter only of local concern, and the amendment is not clearly and obviously unconstitutional.
Relators viewed injunction as an adequate remedy until the trial court refused to issue a temporary restraining order. It may be inferred from said ruling that said court was of the opinion that the amendment was not obviously unconstitutional.
Under the facts and circumstances presented by the record, the peremptory writ should be denied. It is so ordered. All concur, except Hays, J., absent.