author: VALLIANT, C. J.

text:
    THE STATE ex rel. CURATORS OF UNIVERSITY OF MISSOURI v. H. C. WALKER, Collector of Clinton County.
    In Banc,
    March 1, 1912.
    .1. CITATION: Technical Meaning: When Not Given. The word “cited” is a technical word, and a “citation,” in its technical sense, is a writ issuing out of a court. It is not an original writ instituting a suit, but it issues in a matter pending in court to notify a party interested that certain proceedings- in that matter are to be considered. But when a technical word is inappropriately used in a statute, and when to give to it its technical meaning would entirely defeat the purpose of the lawmaker, it will not be given that meaning, if another meaning can with reasonable certainty be gathered from the whole context and the purpose of the statute be thereby effected. Accordingly the word “cited” used in the statute in this case is held to mean “notice by mail.”
    2. -: -: Collateral Inheritance Tax: Collector Notified by Mail: Cited. Section 322, Revised Statutes 1909, provides that under certain conditions, the probate court shall “appoint a competent person as appraiser, to fix the value of estates” subject to the payment of a collateral inheritance tax, and “every such appraiser shall forthwith give notice by mail to all persons known to have a claim or interest in the property to be appraised, including the county collector of revenue, and to such persons as the probate judge may by order direct, of the time and place when he will appraise such estate or property.” Section 329 provides that “in proceedings to which any county collector is cited as a party under section 322, the State Auditor is authorized, in his discretion, to designate and retain counsel to represent such county collector therein, and to direct the county collector to pay the expenses thereby incurred out of the funds which may be in his hands on account of this tax.” Held, that the word “cited” used in section 329 should not be given the technical meaning of being served with a writ of citation, but the statute- means that the State Auditor has authority to employ counsel whenever the county collector has been given notice by mail. One technical meaning of “cited” is “notified of a legal proceeding.” '
    E. ABUSE OF POWER: Legislative Matter. The argument that the power given by statute to the State Auditor to appoint an attorney to represent the county collector at the appraisement of an ^estate for the assessment of an inheritance tax and to fix his compensation, is a power that may be' abused, is an argument that should be addressed to the Legislature. It does not affect the validity of the statute.
    4. COLLATERAL INHERITANCE TAX: Expense of Collecting: Attorney’s Compensation: Constitutional. That part of Sec. 329, R. S. 1909, authorizing the State Auditor, in his discretion, when a county collector is notified to appear at the appraisement of the property of a decedent for the assessment of an inheritance tax, to appoint an attorney to represent the collector at the appraisement, to fix his compensation and to direct its payment out of the tax fund in the collector’s hands, is not in violation of section 43, article 4, of the Constitution, which says that “all revenue collected and moneys received by the State from any source whatsoever shall go into the Treasury, and the General Assembly shall have no power to divert the same, or to permit money to be drawn from the Treasury except in pursuance of regular appropriations made by law.” If a literal construction of that constitutional provision would forbid the holding back from the tax collected "a reasonable compensation for the attorney’s services, it would also require a county collector to pay into the State Treasury the whole of any state property or license tax conecten by him, not permitting him to withhold his own commissions The history of the revenue law at the time the Constitution was framed and for many years prior thereto, shows that its framers did not mean by this section that the necessary expense of collecting a tax was to be paid into the State Treasury.
    5. -: -; -: -: Fixed Fees. Nor does the Constitution make any distinction between fixed fees for collecting a tax and fees which are not fixed by statute. Neither can be retained by the officer earning them if the words of the Constitution are to be literally followed; but a literal interpretation was not contemplated by its framers as to either fixed fees or fees to be fixed; their purpose was that the necessary expense of collecting a tax should be retained by the officer rendering the necessary service, and the balance should be paid into the Treasury.
    Mandamus.
    Writ denied.

      F. G. Donnell and E. W. Hinton for relator.
    (1) The provisions of Sec. 329, R. S. 1909, that “in proceedings to which any county collector is cited as a party under section 322” the State Auditor is authorized, in his discretion, to retain counsel, and to direct the county collector to pay the expenses thereby incurred, furnishes no authority for the deduction of attorney fees in this case, because the mere notice by the appraiser to the collector of the time and place of the appraisement is not a citation of the collector as a party. 1 Bouvier, p. 326; Bacigalupo v. Supreme Court, 40 Pac. 1055. The statute does not confess or attempt to give the Auditor general authority to employ and pay counsel, but only in'proceedings to which the collector is cited as party. Unless, therefore, there was a citation of the collector as a party to some proceeding for the collection of the tax on the Allen estate, the employment and payment of counsel was not authorized by the terms of the act. The term “citation” has a well-defined legal significance. It is a writ or process issued by a judicial tribunal, commanding tbe party therein named to answer to some charge or matter, or to show cause why some judicial action should not be taken. Clarkson v. Hatton, 143 Mo. 56. (2) The provisions of Sec. 329, E. S. 1909, under which the respondent seeks to justify the deduction of $174.69 as attorney fees, are unconstitutional and void because they attempt to authorize the diversion and expenditure of an indefinite amount of revenue derived from this tax, without an appropriation therefor, as required by the Constitution. Sec. 43, art. 4, Constitution; Guheen v. Curtis, 31 Pac. 80S; Institute v. Henderson, 31 Pac. 714. ’ The collateral inheritance tax is obviously a tax, and the money received by the collector on that account is certainly “revenue collected,” if the language employed is to have any significance at all. State ex rel. v. Henderson, 160 Mo. 190; Guheen v. Curtis, 31 Pac. . 805; State v. Burdick, 33 Pac. 125; Eistine v. State, 20 Ind. 336. In the ease of a collecting officer’s commissions and fees, fixed by law, it can make little practical difference whether they are settled by deduction, or are paid by appropriation, because the deduction offers no opportunity for abuse, or for an indefinite expenditure of public funds by executive authority only. But these considerations have no application to the deduction here sought to be justified. Section 329 undertakes to leave it solely to the discretion of -the State Auditor to employ counsel, fix their compensation, and pay them out of whatever funds the collector may have on hands on account of this tax. Thus the exclusive legislative function of determining how public funds are to be expended is attempted to be delegated to an executive or ministerial officer, in the 'very teeth of the Constitution. The opportunities fot abuse and favoritism are apparent, and annually amounts aggregating thousands of dollars can be diverted from the State treasury and placed beyond the power of the Legislature without the shadow ol authority except the undefined and unfettered discretion of the State Auditor. Counsel do not wish to he understood as imputing- that there has been any abuse of the discretionary power sought to be conferred upon the Auditor. But they do submit that the framers of the Constitution did not intend to leave the expenditure of public money, to an indefinite amount, to any officer, and that this intention is clearly expressed in the requirement that all, not' some or a part, of the revenue collected shall be paid into the State treasury, and in the emphatic limitation that the General Assembly shall have no power to divert the same.

      W. S. Herndon, Pross T. Cross and Perry 8. Bader for respondent.
    (1) The notice to respondent, given in the manner prescribed by the statute, which is alleged in the return and admitted by the motion for judgment on the pleadings to have been so given, was a sufficient ground for the appointment by the State Auditor of Musser to act as respondent’s attorney, whether or not the notice amounted to a citation in the sense that word is used in other statutes and is understood in the law. The word “cited” used in section 329 refers to “notice by mail” required by section 322. Because a person is usually cited by summons or subpoena or notice served by an officer, is no reason for holding that the Legislature may not make “notice by mail” a good citation. Besides, the sufficiency of the citation is not in the case, since respondent and his attorney appeared at the hearing, and the State Auditor is presumed to have satisfied himself that respondent had been “cited as a party” before he designated and retained Mus-' ser as counsel for respondent. R. S. 1909, art. 14, chap. 2; R. S. 1899, art. 16, chap. 1; Laws 1899, p. 328 ; R. S. 1909, secs. 322 and 329; Bliss’s Code of New York, sec. 12, p. 3178, and sec. 15, p. 3179; Matter of McPherson, .104 N. T. St. 321; Estate of Astor, 14 N. Y. St. 480; Leavitt v. Leavitt, 131 Mass. 193; State ex rel. v. St. Louis, 158 Mo. 505. (2) If the words in sec. 43, art. 4, Constitution, namely, “All revenue collected and moneys received by the State from any source whatsoever shall go into the treasury,” apply to collateral inheritance taxes, then by the same token and for the same reason they apply to all collections of State taxes on property by county collectors, all collections of State license taxes on dramshops by the county collector, and all collections on a State license by the county clerk to hunt game. And if the words of section 329, directing that the counsel for the county collector shall be paid out of the collateral inheritance tax, is invalid, because this section of the Constitution requires the entire amount of collateral inheritance taxes collected by the collector to be paid into the State treasury, then for the same reason and by the same token, the provision of section 331, permitting the county- collector to retain five per cent of the collateral inheritance taxes collected by him, is also invalid; and the provision of section 322, directing the per diem and expenses of the appraiser to be paid out of the inheritance taxes collected by the collector, and the provision of section 331 directing the collector to pay one-half of all his commissions to the probate judge, are also invalid; and the provisions of section 11481, authorizing the county collector to retain a certain per cent of the State license tax collected from dramshop keepers, and of all property taxes collected by him, although he is authorized by section 11475 to deduct such commissions, are also invalid; and the provision of section 6577, authorizing the county clerk to retain fifteen cents for each hunter’s license issued by him “out of the money received for each license issued,”-and to “pay the balance to the State Treasurer,” is also invalid, (a) It lias been the policy of this State from the beginning to permit the county collector to deduct his commissions for collecting a State tax from the amount he collected. This was the policy of the State when the Constitution of 1875 was adopted and has been ever since. R. S. 1835, secs. 33 and 34, art. 3, p. 539; R. S. 1845, secs. 49 and 54, chap. 147, p. 944; R. S. 1855, secs. 48 and 53, chap. 135-, p-. 134G; U. S. 1865, secs. 52 and 57, chap. 13, p. 118; secs. 144,147 and 148, of Act of March 30, 1872; 2 Wag. Stat., p. 1187; Laws 1877, sec. 16, p. 382; Laws 1878, p. 93; R. S. 1879, sec. 6782; R, S. 1889, sec. 7637; R. S. 1899, sec. 9257; R. S. 1909, sec. 11475. (b) Constitutional provisions are to be interpreted in the light of their historical setting, and the evil which their restrictions and inhibitions on legislative power were intended to prohibit may be ascertained by considering the long public policy of the State as manifested by its statutes and prior constitutional provisions, and by the consideration, in connection with this historical setting and public policy, of the whole section of the Constitution in which the inhibition is found. Hamilton v. St. Louis County, 15 Mo. 23; State- ex rel. v. William Jewell College, 234 Mo. 313; Hale v. Stimson, 198 Mo. 159; State ex inf. v. Burkhead, 187 Mo. 32; State v.. Etchman, 189 Mo. 648, 662; State ex inf. v. Breuer, 235 Mo. 248; State v. Bixman, 162 Mo. 29; State ex rel. v. Cook, 178 Mo. 189; State ex rel. v. McGowan, 138 Mo. 187; State ex rel. v. Kramer, 150 Mo. 89. Constant exercise of a power by the General Assembly for a long number of years, and the acquiescence therein of the other departments of government, is persuasive argument that it possessed that power within the meaning of the Constitution. State v. Mayhew, 2 Gill (Md.), 497; Mayor of Baltimore v. Board, 15 Md. 476; Harrison v. State, 22 Md. 491; Rogers v. Goodwin, 2 Mass. 477; Opinion of Judges to House of Representatives, 20 Mass. (3 Pick.) 518; Kiersted v. State, 1 Gill & John. 248; Hays and Richardson, 1 Gill & John. 385; Shipp v. Klinger, 54 Mo. 239; Linck v. City of Litchfield, 141 111. 477; State v. Gerhardt, 145 Ind. 457; Terre liante v. Railroad, 149 Ind. 186; .Kenney v. Hudspeth, 59 N. J. L. 530; Rumsey v. People, 19 N. Y. 42; Wallack v. Mayor, 3 Hun 89. (c) A statute will not he held to he unconstitutional unless it is clearly and unmistakably so. State v. Cantwell, 179 Mo. 261; State ex rel. v. Railroad, 48 Mo. 470; State v. Addington, 77 Mo. 117; Lynch v. Murphy, 119 Mo. 174; Ewing v. Hoblitzelle, 85 Mo. 69; State v. Layton, 160 Mo. 474; State v. Gregory, 170 Mo. 598; State v. Tower, 185 Mo. 79; Ex parte Loving, 178 Mo. 194; State v. Gerhardt, 145 Ind. 451. (d) The power of taxation is a legislative power, and is vested in the General Assembly, and it can enact any statute on the subject unless its power to do so is restricted or limited by the Constitution. State v, Tower, 185 Mo. 91; Ex parte Roberts, 166 Mo. 207; Morrow v. Kansas City, 186 Mo. 683; State ex rel. v. Warner, 197 Mo. 656; Ex parte Berger, 193 Mo. 26; State ex rel. v. Sheppard, 192 Mo. 506; Booth’s Exr-. v. Commonwealth, 130 Ky. 95; State v. Yinsonháler', . 105 N. W. (Neb.) 472. (e) It has been the policy of this State from the earliest times that the expense of collecting any tax should be taken out of the taxes collected and the balance only paid into the treasury. That was the rule, prior to the adoption of the Constitution of 1875 and has been since, as to State taxes, county taxes, city taxes, school taxes, license taxes, and special benefit assessments. State v. Alsup," 91 Mo. 172. To that- rule the Legislature adhered in its very last deliverance on the subject, in authorizing the county collectors when they come to collect the taxes to pay the new eapitol bonds of $3,500,000 to retain their usual commissions. Laws 1911; p. 417, sec. 2. (f) The contention of relator that the provision of section 329, giving to the State Auditor a discretion as to when he will designate and retain counsel for the county cob lector and to direct when he exercises that discretion that the attorney be paid out of the taxes collected, distinguishes this portion of the statute from that part of section 331 authorizing the collector to retain five per cent of the taxes collected and to pay one-half thereof to the probate judge, and that that distinction renders invalid that part of the ^statute relating- to the employment and compensation of the attorney, and renders section 331 valid, is without any solid basis of reasoning or any constitutional provision to stand upon. The provision for the employment and compensation of an attorney is a reasonable expense of collecting the tax. If it is invalid, so is the provision that authorizes the county collector to retain five per cent of the taxes collected, one-half for himself and one-half for the probate judge. So is the provision of section 322 that authorizes the appraiser to be paid three dollars per day and expenses. These are all legitimate expenses of collecting the tax, and if the provision authorizing the one is in violation of sec. 43 of art. 4 of the Constitution, so are the others. 1. The State has the right to raise up a governmental agency for the purpose of enhancing its revenues and carrying its revenue laws into effect. Land & Stock Co.-v. Miller, 170 Mo. 253. 2. The fact that the State Auditor may abuse his discretion, and direct the payment of a too large sum for the services rendered by the attorney, may affect the wisdom of the statute, but not its validity, and is an objection that should be addressed to the Legislature and not to this court. This court has nothing to do with the wisdom or unwisdom of a statute. State v. Tower, 185 Mo. 97; State ex rel. v. Vandiver, 222 Mo. 217. 3. The taxing power is a legislative power, but the Legislature can authorize an executive officer to fix the compensation for services rendered the State and even to determine the amount of tax. Thus, the statute from time immemorial has authorized the county court to fix the compensation of the county treasurer. R. S. 1909, Sec. 3757. The statute authorizes the county court to determine the State license tax a dramshop keeper must pay at any amount between $100 and $200 for every period of six months, and thereby makes it possible for a county court to fix the State license tax in one county at $200 per annum and at $400 in another — a very wide discretion. R. S. 1909, sec. 7199. That discretion was lodged in the county court long before the Constitution of 1875 was framed. 1 R. S. 1855, p. 684, sec. 9. And the statute authorizes the county court to determine the amount of poll tax, which may be between three and six dollars. R. S. 1909, sec. 10472. And the same power is vested in the township boards in counties under township organization. R. S. 1909, sec. 11758. And the Constitution itself gives the county court the right to fix the rate of tax at anything below a certain maximum amount for county purposes (Sec. 11, art. 10, Constitution); and at any rate it may choose below twenty-five cents on the $100 valuation for roads and bridges (Sec. 22, art. 10, Constitution), (g) The words of Sec. 43, Art. 4, Constitution, declaring that ‘ ‘ all revenue collected and moneys received by the State from whatever source, ’ ’ must be read in connection with its context, the whole section and article in which it is found. State ex rel. v. Breuer, 235 Mo. 251. When read in that connection it is apparent: (1) that lire whole article is dealing with legislative powers, or, as is expressed in the subhead on page 72, with “Limitation on Legislative Powers,” over the revenue that comes into the State treasury; (2) that section 43 was dealing with appropriations and the order 'of appropriations to be made by the General Assembly; and (3) that its primary purpose was to inhibit a diversion of the State’s money to any private purpose. For instance, if the Collateral Inheritance Act had authorized the county collectors to pay the moneys collected by them to the treasurer of the State University or to relator itself, it would have contravened this section of the Constitution, which was designed to prevent that very thing and similar things by providing that the State revenues should he paid into the State treasury; but it never was designed thereby to render invalid all existing statutes and all subsequent statutes which authorized county collectors to deduct from the amount of State property and license taxes collected by them their statutory commissions and other necessary expense for making such collections. Shaver v. Robinson, 59 Ala. 195; Allegheny Co. v. Stengel, 213 Pa. 494. (h) It would be giving to section 43 a sour, narrow and absurd construction to now hold that the entire State tax collected by a county collector or a county clerk, without any deduction of the commissions or fees which the statute allows them for collecting the same, must be paid into the State treasury, and that before they can be compensated for their services the General Assembly must, by a specific appropriation, authorize the State Auditor to draw his warrant on the State treasury fox the amounts due them. To so hold would be to stick in the bark. It would he to surrender the spirit to the letter. There is no evil to be remedied by any such holding. On the contrary, such a holding would upset the whole revenue machinery of the State and would bring painful confusion into the system of collecting State taxes, for, if that is what the Constitution means, no county collector could receive one dollar for his services in collecting a State property or license tax for the two preceding years until after the General Assembly had met and adjourned. The courts do not give to the Constitution an absurd or useless construction. State ex rel. v. Cook, 178 Mo. 1891; Ex parte Conrades, 185 Mo. 411.
   VALLIANT, C. J.

Relator prays a writ of mandamus to issue to respondent, the collector of revenue of Clinton county, requiring him to pay into the State treasury $1.74.69, being part of tbe money collected by him under the statute which imposes an inheritance tax, and which was paid out by him as compensation for services rendered by an attorney employed in the collection of the tax under the provisions of section 329, Eevised Statutes 1909. That section provides that: “In proceedings to which any county collector is cited as a party under section 322 of this article, the State Auditor is authorized, in his discretion, to designate and retain counsel to represent such county collector therein, and to direct such county collector to pay the expenses thereby incurred out of the funds which may be in his hands on account of this tax.” The relator’s contention is, first, that “the county collector was not cited as a party under section 322,” and therefore the condition under which the statute authorized the employment of counsel did not exist, and, second, the statute authorizing the collector to pay the expenses incurred for services rendered under such retainer is in violation of section 43, article 4, of the Constitution.

Let us first look at the statute and see what it requires, then turn to the facts and see if they meet the requirements. “Section 322. The probate judge of the court having jurisdiction of the estate of the decedent, upon the application of any interested party, including county collectors, or upon his own motion, shall, as often and whenever occasion may require, appoint a competent person as appraiser to fix the valuation of estates which shall be subject to the payment of any tax imposed by this article. Every such appraiser shall forthwith give notice by mail to all persons known to have a claim or interest in the property to be appraised, including the county collector of revenue, and to such persons as the probate judge may by order direct, of the time and place when he will appraise such estate or property.”

The section then goes on to direct how he shall proceed to make the appraisement, authorizing him to issue subpoenas for witnesses, etc., and report his appraisement in writing to the probate judge, with the evidence on which it is founded. The section then provides that for his services the appraiser shall be paid three dollars a day and his travelling expenses and witnesses’ fees, all to be paid by the county collector out of funds in hand derived from this inherit' anee tax.

The next section prescribes the duty of the probate judge in reference to the appraisement. The next section authorizes proceedings to be taken by the State Auditor if he believes the appraisement of the estate or assessment of the tax to have been fraudulently, collusively, or erroneously made, under which proceedings the circuit judge may appoint an appraiser, who shall possess the same powers as are given the appraiser to be appointed by the probate judge under section 322, and receive the same pay for his services out of the inheritance tax. The provisions of the next four sections are not in question in this suit.

Section 329 authorizes the prosecuting attorney of the county on representation of the county collector, and finding probable cause to believe that such a tax is due and unpaid, to apply to the probate court “for a citation citing the persons liable to pay such tax to appear before the court on the day specified, not more than three months after the date of such citation and show cause why the tax should not be paid. ” That is the only call for a writ of citation that we find in either of these sections. Then follow directions for proceedings in the probate court on the return of the writ, and provision is made for paying the expenses of that proceeding out of the funds arising from this tax. Then comes the closing sentence which we have-hereinabove quoted authorizing the State Auditor to retain counsel to represent the county collector'in proceedings in which, he “is cited as a party under section 322 of this article.”

There is no call for a citation in section 322, the only means provided for bringing the county collector before the appraiser is a written notice to him by mail.

Now let ns turn to the facts in the case.

When the probate judge found that there was an estate in his county liable to this collateral inheritance tax he appointed an appraiser, as section 322 required, to fix the valuation of the estate. That appraiser immediately gave “notice by mail to all persons known to have a claim or interest in the property to be appraised, including the county collector of revenue . . . of the time and place when he will appraise such estate or property.’-’ The State Auditor appointed counsel to appear at that proceeding and represent the county collector, which he did. The valuation placed on the property by that appraisement was $110,800, and on that the probate court fixed the amount of the tax at $5266.80, which the county collector collected and, before paying the same into the State treasury, deducted therefrom $174.69, as directed by the Auditor, and paid the same to the attorney who represented him in the appraisement.-

The purpose of this suit is to require the county collector to pay that $174.69 into the State treasury.

I. Relator’s first point turns on the meaning of the word “cited” as used in the last clause of section 329 above quoted, relator contending that the word is used in a technical sense and means served with a writ of citation, respondent contending that it means notified by mail of the time and place appointed for the appraisement as required by section 322,

Section 8057, Revised Statutes 1909, prescribing rules for the interpretation of statutes directs that “words, and phrases shall he taken in their plain or ordinary and usual sense, hut technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.” The word “cited” is a technical word, and among its technical meanings is that which the relator claims should be given it in this case. A citation in its technical sense is a writ issuing out of a court;.it is not an original writ instituting a suit, but it issues in a matter pending in court to notify a party interested that certain proceedings in that matter are to be considered. It is a proper writ to issue out of a probate court in which an estate is being administered. [2 Words and Phrases, p. 1161.] But when a technical word is inappropriately used in a statute and when to give it its technical meaning would entirely defeat the purpose of the lawmaker, if another meaning can with reasonable certainty be gathered from the whole context and the purpose of the statute be thereby effected, the word must be given that meaning.

If we should give to the word “cited” as here used the meaning contended for by relator it would destroy that whole clause of the statute. If we should say that the statute means to give the State Auditor authority to retain counsel to represent the collector only when the collector has been served with a writ of citation under section 322, then we would by interpretation wipe that clause of the statute off the books, because section 322 does not provide for the issuance of a writ of citation to the county collector under any circumstances, it only requires the appraiser to give him notice by mail, and that notice is what the statute refers to when it says “cited” under section 322.

The word “cited” is not limited, even in its technical meaning, to being served with a writ of citation; its meaning, among others, is, notified of a legal proceeding (Black’s Law Dictionary), and that is the sense in which it is used in this statute.

It is argued by tbe learned counsel for relator that, whilst the amount in controversy in this case is small, yet the principle involved is of great importance, because if this authority be conceded to the State Auditor, it is liable to such an abuse as would cause a large diminution of the collateral inheritance tax; That’ is an argument more appropriate to the General Assembly than to the court. The statute in question has been on our books for more than ten years, and if abuse had been practiced it is likely the attention of the General Assembly would have been called to it. At all events there is no suggestion of abuse of the power in the case before us, and we cannot consider that argument.

II. Is the statute which authorizes the payment of reasonable expenses incurred in the collection of this inheritance tax out of that fund while yet in the hands of the county collector a violation of section 43, article 4, of the Constitution? That section is in these words: “All revenue collected and moneys received by the State from any source whatsoever shall go into the treasury, and the General Assembly shall have no power to divert the same, or to permit money to be drawn from the treasury, except in pursuance of regular appropriations made by law.” The language is ample to cover Pot only all revenue derived from general taxation, but moneys collected by authority of the State from any source whatsoever; it therefore covers moneys derived from the collateral inheritance tax. It does not apply in a different force or degree to one than to the other. If the literal construction contended for by relator is to be applied to this section, then it-means that the General Assembly cannot authorize by statute the payment of fees to any officer or agent out of the money he may collect for the State, but he must pay it all into the treasury, and wait until the General Assembly meets and makes an appropriation to pay him for his services. That has never been the course of dealing between the State and the collectors of its general revenue or of its other taxes. The officers making the collections have always been permitted to retain the fees fixed by statute as their compensation; such was the course of dealing when the present Constitution was adopted, it had been for many years before, and it has been so ever since.

Relator seems to concede that such has been the practice, but it seeks to draw a distinction between fixed fees and fees that are to be fixed. If we are going to adhere to the letter of this section we must say that it applies to fixed fees as well as fees to be fixed; if we say that it does not apply to fixed fees that have long been allowed, then we depart from the letter and inject an exception by interpretation, and if we make an exception of one for a certain reason we should make an exception of another that comes under the same reason. The convention which framed our Constitution was composed of men who knew what the law on this subject then was and if they had understood that this section was liable to be construed as applying to the payment for services rendered in collecting thi revenue they would doubtless have made some provision to meet that condition, because payment for such services out of the funds before they were paid into the treasury had always been allowed by statute, and also because it would naturally impede or hinder the State in collecting its revenue unless such payments were so allowed.

The reason for allowing the county collector to retain his commissions is that his services were necessary in collecting the tax, and that reason applies as well to the services of the legal counsel in the collection of the inheritance tax as it does to the services of the collector. We do not say that the one is as necessary as the other, because the services of the collector are indispensable in every instance, whilst the services of an attorney may be necessary in some cases but not in others, therefore the statute has given the State Auditor authority to retain counsel only when in his judgment it is necessary, but when it is thus determined that the services are necessary there is no more reason for allowing the collector to .retain his commissions out of the fund collected than there is for the payment of the attorney out of the same fund. It has always been the policy of the State to allow payment out of taxes collected mot only to the county collector of general taxes, but to the officer intrusted with the issuance of licenses and the collection of license taxes, and if we should now give to section 43, article 4, the construction contended for by relator we would not only overturn a settled policy, but bring confusion in the collection of the revenues of the State. The General Assembly is forbidden by this section to divert from the State treasury the fund arising from the inheritance tax, but it is not a diverting of that fund for the General Assembly to provide for the payment of reasonable compensation for necessary services rendered in its collection.

The writ of mandamus is denied.

All concur.


source: Caselaw Access Project

author: FERRISS, J.

license: Public Domain

text:
    THE STATE ex inf. HERBERT S. HADLEY, Attorney-General, v. MISSOURI PACIFIC RAILWAY COMPANY, ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, WABASH RAILROAD COMPANY, PACIFIC EXPRESS COMPANY, and AMERICAN REFRIGERATOR TRANSIT COMPANY.
    In Banc,
    March 1, 1912.
    1. QUO WARRANTO: Motion for Judgment on Pleadings: Things Admitted and Considered. In quo warranto, submitted on a motion for judgment on the pleadings, consisting of the information and return, the court, in arriving at the substantive facts pleaded and proper for consideration upon the motion, takes as true the material allegations in the information admitted by the return, and also as true the material allegations in the return, thereby leaving open for discussion the legal conclusions of either party.
    2. COMBINATION: Established by Pleading. The mere allegation that a combination exists between two railroad companies is not sufficient to establish' such combination.

      3. --: -: Control by Ownership of Stock. One railroad company cannot in law be said to control another where its ownership of the other’s stock, if exercised, can amount to no more than the election of two of its thirteen directors. Nor can a charge of a control and combination deduced from such ownership be considered other than a conclusion of the pleader. Nor does the fact of such percentage of ownership support the conclusion, either of control or ownership..
    4. RAILROADS: Ownership of Stock: Connecting Lines. The ownership of the stock of one railroad company by another connecting line does not violate the law.
    5. -: Ownership of Express and Refrigerator Companies. A railroad company may own the stock of an express company organized as a carrier of express freight, and also the stock of a refrigerator car company which owns cars devised and used for the transportation of products which require refrigeration while in transit. The railroad company could engage in such express and refrigerator transportation business itself, and what it may do directly it can do indirectly by owning the stock of the companies engaged directly in the business. But under the law, it is the duty of the railroad company to permit any express company to operate upon its lines.
    6. -: Combination: Stockholders in Several Defendant Companies: Not Before Court. An allegation in the information that certain stockholders own a majority of the stock of one of the respondent railroad companies, which in turn owns some of the stock of the other two railroad companies and of the express company and the refrigerator car company, and that such stockholders have conspired together to control all the respondents, will not justify a writ of ouster against the respondent companies, where such individual stockholders are not made parties, and therefore are not before the court.
    Quo Warranto.
    Writ denied.

      Herbert 8. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General for the State; F. W. Lehmann of counsel.
    (1) It is stated by the respondents in their demurrer that the facts stated in the information constitute a cause of action against the respondents severally, but not jointly with any other respondent. That involves a consideration of the question as to what it is necessary to allege against several .respondents when the charge is that they have conspired to do acts which are unlawful. The sufficiency of the pleading in this regard must be determined by the rules in reference to civil proceedings. 2 Spelling on Extraordinary Legal Remedies; People v. Railroad, 1 Lans. (N. Y.) 308; Commonwealth v. Bank, 28 Pa. St. 391; State v. Anderson, 8 So. (Pla.) 1; State v. Bank, 10 Ohio, 535'; State v. Hardie, 1 Ired. (N. C.) 42; State v. Kupferle, 44 Mo. 154; Bishop v. State, 149 Ind. 223. While the rules of pleading in civil cases have been applied to proceedings in quo warranto, yet it is not necessary that there should be stated in the information in detail the acts constituting the usurpations charged. It is only necessary that the respondent should be informed by the information of the franchises alleged to be usurped in terms of sufficient definiteness so that they can properly disclaim or. justify. 17 Ency. PI. & Pr. 458; Palmer v. Woodbury, 14 Cal. 43; People v. Railroad, 12 Mich. 398; People v. Insurance Co., 15 Johns. 358; People v. Turnpike Railroad, 23 Wend. 193; People v. Niagara Bank, 6 Cow. 196; Commonwealth v. Bank, 28 P'a. St. 391; People v. Dashaway Association, 84 Cal. 119; Territory v. Railroad, 2 Mont. 109; Commonwealth v. Sturtevant, 182 Pa. 332; 2 Spelling on Extra. Leg. Rem., sec. 1851. (2) Where it is charged that a combination or conspiracy has been formed to do an unlawful act, or for an unlawful purpose, it is only necessary to charge the existence of the combination or conspiracy in general terms. 4 Ency. PI. & Pr., p. 713; Commonwealth v. Eastman, 1 Cush. 190; State v. Parker, 43 N. H. 84; People v. Saunders, 25 Mich. 119; Hazen v. Commonwealth, 23 Pa. St. 363. And where a combination or conspiracy is for a purpose which is prohibited by statute, the purpose of the combination need be set out only in such a manner as to show that it is within the terms of the statute. United States v. Gardner, 42 Fed. 831; Landringhám v. State, 49 Ind. 186; Cole v. The People, 84 111. 216. (3) The law in relation to conspiracies applies to corporations as to individuals. Lubricating Oil Co. v. Standard Oil Co., 106 N. T. 670 ; Lead Co. v. Paint Store Co., 80 Mo. App. 247; State ex inf. v. Insurance Co., 152 Mo. 37; State v. Standard Oil Co., 49 Oh. St. 137; People v. Refining Co., 121 N. T. 626. The State to maintain a joint action against several corporations charged in an information in the nature of a quo warranto to have combined or conspired for the purpose of doing acts or accomplishing results unlawful or prohibited by statute is the settled practice of this court. State ex inf. v. Packing Co., 173 Mo. 356; State ex inf. v. Tobacco Co., 177 Mo. 1; State ex inf. v. Railroad, 182 Mo. 284; State ex inf. v. Standard Oil Co., 194 Mo. 124. And the right of the State to proceed against several respondents jointly in an action in quo warranto, if the grounds upon which the action is based are common to all, is a general rule of practice. 17 Ency. PL & Pr., p. 440; State v. Kern, 17 R. I. 395; Gilroy v. Commonwealth, 105 P'a. 484; State v. Simpkins, 77 la. 676; 2 Spelling on Extra. Leg. Rem., p. 1820; People v. Refining Co., 121 N. T. 696. The ownership by one corporation of the stock of another, whether engaged in the same or different business, is ultra vires. State ex rel. v United States Bank, 197 Mo. 600; Goodland v. Bank, 74 Mo. App. 367; Hotel Co. v. Furniture Co., 73 Mo. App. 135; Olleskeimer v. Mfg. Co., 44 Mo. 185; Stone v. Rottman, 183 Mo. 552. And where one corporation owns stock in another corporation for the purpose of controlling it and accomplishing any result contrary to the Constitution or statutes of the State, such action is not only ultra vires, but is against public policy, and renders both corporations subject to an action of forfeiture by the State. State v. Oil Co., 49 Oh. St. 137; People v. Refining Co., 121 N. Y. 582; McCutclieon y. Capsule Co., 71 Fed. 787; Lead Co. v. Paint Store Co., 80 Mo. App. 247; Railroad v. Kentucky, 161 IT. S. 698; Railroad v. Collins, 40 G-a. 582; People v. Trust Co., 130 III: 268; Distilling Co. v. People, 156 111. 448; Milbank v. Railroad, 64 How. Pr. 29; Pearsall v. Railroad, 161 U. S. 646; State v. Distilling Co., 29 Neb. 700'. (5) That it was unlawful for the Pacific and Iron Mountain Companies to own stock and bonds in the Wabash Company for any purpose, and particularly for the purpose alleged in the information; that it was unlawful for the Wabash Company to give to its debenture bonds a voting power for any purpose, and particularly for the purpose alleged in the information, and that it was unlawful for the Pacific and Iron Mountain and Wabash Companies to be under one domination and control for any purpose, and particularly for the purpose alleged in the information, is clearly established by the provisions of our Constitution and statutes, and also by the decisions of the courts. Constitution, art. 12, sec. 17; R, S. 1899, secs. 1062,1063,1064,1065,1066,1067,1068, 1069; Railroad v. Wear, 135 Mo. 265; Railroad Co. v. Collins, 40 Ga. 582; Hazelhurst v. Railroad, 43 Ga. 13; Railroad v. Kentucky, 161 U. S. 685; State v. Vanderbilt, 37 Oh. St. 590; Pearsall v. Railroad, 161 U. S. 671; Thomas v. Railroad, 101 U. S. 71; Trans. Co. v. Pullman Co., 139 U. S. 24; Railroad v. Commonwealth, 7 Atl. 368; Railroad v. Commonwealth, 7 Atl. 374; Milbank v. Railroad, 64 How. Pr. 20; Pearson v. Railroad, 62 N. H. 537; State v. McDaniel, 22 Oh. St. 368; Railroad Co. v. Wood, 88 Ala. 630; George v. Railroad, 101 Ala. 607; United States v. Securities Co., 120 Fed. 721, 193 U. S. 197; Clarke v. Railroad, 50 Fed. 338.

      M. L. {Jlardy, Robt. T. Railey and J. L. Minnis for respondent.
    The railroad companies may own the cars of a refrigerator company or may lease them. If they can better secure the nse of the cars and make their operation effective through the instrumentality of an auxiliary company, may they not do so ? R. S. 1899, secs. 971, 1035 and 1081. (2) The thing against which the provision of the Constitution and that of the statute are leveled — the specific thing which is forbidden — is a control by one competing line of another competing line of railroad. To violate the law there must be control, and there can be no control of one corporation by another through ownership of capital stock unless such ownership shall involve a majority interest in such capital stock. There is no explanation in the information as to how, if at all, .one-sixth of the stock of the Wabash Company controls it, although the general allegation of control is conspicuous throughout the entire information. State v. Railroad, 8 Am. St. 880; State v. Crawfordsville, etc., Tp. Co., 102 Ind. 283; Smelser v. Wayne Tp. Co., 82 Ind. 417; State v. Turnpike Co., 92 Ind. 42; Moore v. State, 71 Ind. 478.
   FERRISS, J.

— Information in quo warranto to oust respondents of their franchises. The case is submitted on a motion for judgment on the pleadings, which consist of the information and the returns or answers of the several respondents.

In arriving at the substantive facts pleaded, and proper for consideration upon this motion, we take as true the material allegations in the information admitted by the answers, and also as true the material allegations in the answers or returns of .respondents, leaving open for discussion the legal conclusions of either party. [State ex rel, v. Mo. Pac. Ry. Co., 237 Mo. 338.] Thus considered, the pleadings show the facts as follows:

Tlie three respondent railway companies are Missouri corporations. Both the Missouri Pacific Railway Company (hereinafter called the Pacific Company) and the Wabash Railroad Company (hereinafter called the Wabash Company) own and operate lines of railroad between St. Louis and Kansas City, Missouri; that of the Pacific Company being 283 miles in length, and that of the Wabash Company, 276.5 miles; said roads running west on opposite sides of the Missouri river from St. Charles, twenty-three miles from St. Louis. The Consolidated Wabash Railroad Co., existing under the laws of Ohio, Missouri, Illinois, Indiana and Michigan, owned and operated during the time and events mentioned herein lines of railroad extending from St. Louis east to Toledo, 0., Buffalo, N. Y., Pitts-burg, Pa., and Chicago, 111., aggregating 1699.2 miles, forming continuous lines with the' Pacific Company railway.

The St. Louis, Iron Mountain & Southern Railway Company (hereinafter called the Iron Mountain Companyj owns-and operates a railroad from the city of St. Louis, south, to the southern line of the State, and beyond, forming a continuous line with the Pacific road to and through the State of Arkansas, but said companies are not.consolidated.

The respondent American Refrigerator Transit Company (hereinafter called the Refrigerator Company) is an Illinois corporation. It owns cars devised and used for the transportation of products which require refrigeration while in transit, is not a carrier or shipper of freight; and does not' contract for carriage of freight. It is not a common carrier, but engages only in the business of leasing its cars to various railway companies, and equipping such ears with ice.

The Pacific Express Company is a Nebraska corporation, conducting the business of carrying express freight as a common carrier over the lines of respondent railroads, and is the only company conducting said business upon said lines; but said respondent railway companies have not refused to allow other expi'ess companies to conduct business over their lines.

The Pacific Company owns a majority of the capital stock of the Iron Mountain Company, and the two companies have their principal officers in common.

The Wabash Company has 331,110 shares of common stock and 140,000 shares of preferred stock, each of the par value of $100. The company has also outstanding $30,000,000 of debenture bonds. The holders of the debenture bonds elect six directors, the stockholders elect six directors, and the twelve so elected select the thirteenth director to complete the board.

The Pacific Company owns 20,000 shares of Wabash stock. The Iron Mountain Company owns 65,000 shares of Wabash stock, and $5,435,000 of Wabash debenture bonds. These debenture bonds were acquired by the Iron Mountain Company, originally from the Wabash Company in February, 1890, in lieu of the same number of collateral trust bonds acquired by the Iron Mountain Company from the Wabash, St. Louis and'Pacific Railway Company, in December, 1883.

The Iron Mountain Company purchased in the market, in 1903, at the market price, 85,000' shares of Wabash stock, the Wabash Company at that time operating a continuous line east to Toledo, Buffalo, Pitts-burg and Chicago, connecting with the Iron Mountain railway at St. Louis.

The Express Company has 60-,000 shares of capital stock, each of $100 par value. Of this stock the Wabash Company owns- 24,000 shares, and the Pacific Company, 12,000 shares.

The Refrigerator Company has 5000 shares of capital stock, of $100 par value each. Of this capital stock the Pacific Company owns .1217 shares, the Iron Mountain Company, 2,853 shares, and the Wabash Company, 930 shares, making the total 5000 shares.

Tlie information charges that George J. Gonlcl and Frank J. Gonld own a large number of shares of the Pacific Company, and have combined and conspired with other stockholders of said company to control and manage the affairs of said company, and, through ownership by the Pacific Company of the majority of the stock of the Iron Mountain Company, to also control the latter company; that the said stockholders of the Pacific Company own and control a large number of shares and bonds of the Wabash Company, and have caused the two first-mentioned companies to own and hold a large number of shares and bonds of the Wabash Company, as stated above, and this as a result of and in furtherance of a conspiracy on the part of such stockholders to bring under one control the Wabash and P'acific Companies, and destroy competition, and also to consolidate the stock, property and franchises of the Wabash and Pacific Companies, which are alleged to be competing and parallel lines, so that they will be one company in effect, so far as public interests are concerned. It is further charged that this result has been accomplished by the means aforesaid.

It is further charged that the aforesaid ownership of stock and bonds of the Wabash Company by the other companies is unlawful, and is a usurpation of franchises not granted by law; also that the aforesaid ownership of stock in the Express and' Refrigerator Companies is a usurpation of franchises and rights not granted by law, and that its effect is to render such Express and Refrigerator Companies incapable of exercising their respective rights and franchises.

It is further charged,' in conclusion, that all the foregoing alleged unlawful acts have been done by the respondent corporations, their officers and members, in furtherance of and as part -of an unlawful conspiracy between the respondents, their officers and members, to destroy all competition between said railway companies, and to destroy all competition between said Express and Refrigerator Companies and other express and refrigerator companies on the lines of said railway companies, to conduct all traffic over the lines of said railways, including the express and refrigerator business, under one and the same control, and to effect a combinatipn of parallel and competing lines, “to the great injury of the people of the State of Missouri.”

The information concludes with the following prayer:

“Wherefore, the Attorney-General, who prosecutes in this behalf for the State of Missouri, prays the consideration of the court in the premises, and that the respondents, the Pacific Express Company and the American Refrigerator Transit Company, be ousted of their franchises, privileges and license1 to do business in the State of Missouri, and that the same be declared forfeited, and that the respondents, The Missouri Pacific Railway Company, the St. Louis, Iron Mountain & Southern Railway Company and the Wabash Railway Company, be ousted of the liberties, franchises, privileges and powers so usurped and unlawfully exercised by them, and each of them, as hereinbefore set forth, and that the court further order, adjudge and decree that the said respondents, the Wabash Railroad Company, the Missouri Pacific Railway Company and the St. Louis, Iron Mountain & Southern Railway Company, discontinue and cease the usurpations hereinbefore set forth, within a definite time, and that failing so to do, all the rights, privileges and franchises of said Wabash Railroad Company, Missouri Pacific Railway Company and the St. Louis, Iron Mountain & Southern Railway Company be declared forfeited.”

So far as the Express and Refrigerator Companies are concerned, it is not charged in the information that either company, as such, has done anything in violation of its duties and obligations. The only allegation against these companies is that, in the one case, a majority of the stock, and in the other, the entire stock, is owned by the three respondent railway companies. As to how or when this stock was acquired there is no allegation. There is no complaint that either company is not performing its full duty to the public. There is no allegation of fact tending to show that either company has in any way conspired or confederated with the railroad companies for any purpose whatever; nor does it appear from any allegation in the information that either company is not managed by its own board of directors and in a proper way.

The substantive facts with which we have to deal (laying aside mere conclusions and immaterial and irrelevant allegations), as we glean them from the pleadings, are few in number.

I. The information charges that the Pacific Company, through its ownership of Wabash stock, and through the ownership of Wabash stock and .bonds by the Iron Mountain Company, completely controls and dominates the Wabash Company, and has effected a combination and consolidation of the stock, property and franchises of said companies. No further facts being pleaded to support this allegation of coinbination and control, it must rest solely upon the fact that the Pacific and Iron Mountain Companies own the stock and bonds above set forth. It is obvious, however, that such ownership is far from amounting to control. If such ownership were exercised in combination, it could not amount to the election of more than two of the thirteen directors of the Wabash Company. There is no allegation that the ownership has been so exercised. The mere allegation that there is a combination and control is not sufficient, under our decision in the case of State ex rel. v. Missouri Pac. Ry. Co., supra. We have before us a conclusion of the pleader, based upon the facts above stated, which facts, as pleaded, do not in onr judgment support the conclusion.

It appears from the facts that the Wabash is a connecting line with the Iron Mountain, and therefore the ownership of stock in the former company by the latter 'does not violate the law.

It is contended by the respondents that inasmuch as the Wabash owns connecting lines from Pittsburg, Toledo and Chicago through to Kansas City, that portion of the line between St. Louis and Kansas City is not a parallel and competing line in the sense in which these terms are used in the statute. We need not decide whether this contention is true. It is obvious that the Pacific Company, owning 20,000' shares of stock in the Wabash, cannot, by reason of such ownership, in any sense control the Wabash Company. Nothing appearing to the contrary, presumptively the Wabash has its own officers and its own board of directors, and it is further to be presumed that such officers and board of directors are performing their duties as such.

II. It is claimed that the railway companies, by their ownership of the capital stock of the Express Company and Refrigerator Company, have usurped the rights and franchises of the latter companies — have violated the law by the ownership of stock in other corporations. Similar questions were presented in the case of State ex rel. v. Missouri Pac. Ry. Co., supra, wherein a similar charge was made against the Pacific Company because of its ownership of stock in a coal company and elevator company. We held in that case that, inasmuch as a railroad company could lawfully engage in mining coal for its own use, and could operate an elevator to handle grain for transportation over its railroad, the railroad company might lawfully own a majority of the stock of such companies. What is there said applies equally well to both the Express Company and Refrigerator Company in this case. Both companies are engaged in business which the railroad company could carry on itself; and if it could do so directly it may do so indirectly by owning the stock of the companies engaged directly in the business. Prom the facts stated it does not appear that the ownership of stock in these companies forbids competition in either the express or refrigerator business. Under the law, it would be the duty of the railroad company to permit any express company to operate on its lines, and, under the facts stated, the railroad companies in this case have not refused such-right to any other company. It will not be questioned that the railroad companies can own refrigerator cars, and, for reasons stated above, they may own them indirectly through ownership of stock in the company which owns and leases them.

We are unable to find, under the substantive facts alleged in this case, that there is a combination or conspiracy among the respondent railroads to control the entire traffic over .their roads, or that the railroad companies have usurped the rights and franchises of the Express and Refrigerator Companies.

III. The State argues that we should disregard the corporate forms, and look to the Goulds and other stockholders of the Pacific Company, who, it is alleged, own a majority of the shares of the Pacific Company, and who, it is further charged, have conspired together to control all the respondents, and to cause to be done all the things complained of herein, and that through such stock ownership, and in pursuance of such conspiracy, these individuals have caused these corporations to' do these things. It is sufficient to say that these individuals are not before the court. We have the corporations only. We do not find them guilty of offending the law in the manner charged. We, therefore, give judgment for respondents.

All concur, except Brown, J., who dissents; Kennish, J., not sitting.