State v. Fulks

• Decision Date: 20 December 1922
• Docket Number: No. 21664.,21664.
• Citation: 247 S.W. 129,296 Mo. 614
• Parties: STATE ex rel. BUCHANAN COUNTY v. FULKS et al.
• Court: Missouri Supreme Court

247 S.W. 129

296 Mo. 614

STATE ex rel. BUCHANAN COUNTY v. FULKS et al.

No. 21664.

Supreme Court of Missouri, in Banc.

December 20, 1922.

Rehearing Denied December 30, 1922.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by the State, on relation of the County of Buchanan, against Richard D. Fulks and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

James W: McKnight, of Albany, and Mytton & Parkinson, of St. Joseph, for appellant

William E. Stringfellow, of St. Joseph, for appellant Fidelity & Deposit Company of Maryland.

Strop & Mayer and. Eugene Silverman, all of St. Joseph, for respondent.

HIGBEE, J.

This is an action on the official bond of the collector of Buchanan county to recover $10,322.70 of the taxes and funds belonging to said county, collected and retained by the defendant Fulks during the fiscal year ending February 28, 1013. Fulks retained out of the revenue collected for the year 1914 $6,032.96, which he claimed was due him for the 4 per cent. commissions on back taxes for the years 1911, 1912, and 1913, and $4,001.30, for the commissions on delinquent taxes for 1914. This Ones not include commissions on delinquent taxes due the state for the first three years. The Jury returned a directed verdict for plaintiff for $11,967.03, including interest, on June 17, 1919, and judgment was entered accordingly, from which defendants annealed.

The evidence foe the defendants, as summarized in the divisional opinion, is as follows:

"The evidence, of defendants showed that the defendant Fullks during the first three years oil his term (1911-1913) did not retain the 4 per cent on back taxes collected by him, authorized by the Bank Tax Act (Pev. St. 1010, § 12928 et seq.), but turned such commissions over to the county treasurer; that in December, 1914, the State Auditor, John 7. Gordon, through his official accountants, made an audit of the accounts for the years 1811-1010 of the county collector and of other officers of said county, end reported to the county court about January 10, 1015, that there was due Folks as collector for these years from the state, $588.50, and from the funds within the county, $6,032.96, stating in said report, `This payment was caused by the collector not being properly advised as to the commission he was allowed to retain.' Following, is the Attorney General's opinion as relates to this ease: `County collectors in office prior to the taking effect of the laws of 1911, page 280, in counties like Buchanan, were entitled to receive fees to a sum not in excess of $9,000, and in addition thereto were entitled to receive fees from tie collection of the collateral inheritance tax and also a commission of 4 per cent. for collecting delinquent taxes under section 11511, H. 3. 1000 (section 12039, R. S. 1019)' Defendant Fulks testified that in December, 1914, the accountants of the State Auditor, John P. Gordon, Commenced to audit his nor/mats as collector, and he learned from them that he was entitled to 4 per cent. on delinquent real estate taxes, in addition to his $9,000 salary. He got this information in December, 1014. The auditor's report is dated January 9, 1915, and was delivered to the county court about that time. That abort a wren afterwards he told the county Court that he was entitled to this 4 per cent., and was going to take it. The court was in session. Judges Hill, Dub, and Kirkman an were on the bench. He saw the county court again before February 28, 1915. He told the county court he was going to take this money. `Judge Hill himself says: "Well, the Attorney General has gave it to you; the State Auditor has gave it to you; the prosecuting attorney has; what else is there for us to do?" I said, "All right." I drawed a check for $6,000 the next day.. I showed him the check, and he laughed about it. Court was in session. I am sure Kirkman and Hill were present on the bench, not so positive about Judge Bub.' Cross-examination:. `I retained $6,000 February 15, 1915. During the whole year 1914 I retained $19,022.70. I believed I was entitled to these fees for delinquent taxes from the report of these auditors and from what they said to me, in addition to my $9,000 after John P. Gordon showed me an opinion from the Attorney General. For that reason I retained the sum sued for in payment of those fees in addition to my $9,000 salary."

1. It is admitted that the proviso of subdivision 15 of section 12927, H. S. 1910, that no collector shall he allowed to retain over $9,000 of commissions and fees in any one year except as provided in subdivision 14, is applicable to Buchanan county, but it is contended that this does not include his commissions on delinquent and back taxes; that section 12959, R. S. 1019, allows the collector an additional 4 per cent. commission for collecting delinquent and back taxes.

Section 12927 provides that

"The collector shall receive as full compensation for his services in collecting the revenue, except lack tares, the following commissions and no more."

Then follow fifteen subdivisions, fixing the rates of commissions according to the amount of revenue collected in the several counties. There is, however, this express limitation in Subdivision 15 of this section:

"Provided, that no collector shall be allowed to retain over nine thousand dollars of commissions and fees in any one year except as provided in subdivision fourteen herein; and all fees and commissions coming into the hands of any collector from any source whatever in excess of nine thousand dollars, except as provided in subdivision fourteen, shall be paid into the city, county and state treasuries in proportion to the amount received on taxes collected for each, and it shall be the duty of each collector, once in each year, to file in the county court in each county and in the office of the comptroller of each city not in county, a statement, under oath, of the amount of fees and commissions received by him and from what source, and shall immediately pay over the excess according to the order of the county court or comptroller: Provided, however, that this section shall not apply to any county n(opting township organization: Provided, that the compensation of the county collector for the collection of the levee taxes and ditch taxes, collected for drainage purposes, shall be one per cent. of the amount collected."

It will be seen that the only instance in which the collector may retain more than $9,000 for his fees and commissions is the 1 tier cent, allowed for the collection of the levee taxes and ditch taxes.

2. Fulks understood that $9,000 was the maximum of commissions and fees he was entitled to retain in any one year. Acting on that construction, he had paid to the county treasurer $4,001.80, the 4 per cent. commissions on the delinquent and back taxes for the three years, 1911, 1912, 1913. This was a voluntary payment, and if he misconstrued the statute it was a mistake of law and not of fact, and lie is not entitled to recover the payment from the county. The tax levy of each year is made to meet the expenditures of that particular year. Under our scheme of taxation each year's levy is made to meet "the condition of the county treasury and current demands of the county's business, and plaintiff may not disturb the county treasury of Crawford county unless he is warranted in so doing by the strict law." Hethcock v. Crawford County, 200 Mo. 170, 177, 93 S. W. 582, 584; Dameron v. Hamilton, 264 Mo. 103, 121, 174 S. W. 425. The commissions having been voluntarily paid in for the three years mentioned, and the money presumably having been paid out for the purposes for which it was levied and collected, it is clear that the collector had no right to retain it out of the levy for the year 1914, which was made to meet the conditions of the treasury and the current demands of the county's business for that year. As was said in the Hethcock Case (200 Mo. 176, 98 S. W. 584):

"In view of the foregoing we think there can be but one fair conclusion drawn, * * * that until this court in the Hawkins Case lit a candle of interpretation for plaintiff, he did not see such commissions and did not know he was entitled to them by law. Otherwise, plaintiff's acts are incomprehensible."

So, in the instant case, Fulks did not understand he was entitled to an extra commission for collecting delinquent and back taxes until he was so advised by the Attorney General and State Auditor.

3. We think the conclusion reached in the Hethcock Case and in State ex rel. v. Hawkins, 169 Mo. 615, 70 S. W. 119, that, under the facts of those cases, the collector was entitled to retain the 4 per cent. commissions on the delinquent and hack tax collections, is not applicable to the facts of this case. We are of the opinion that Mr. Folks correctly construed subdivision 15 of section 12927, It. S., and that, while opinions of the state officials are entitled to great respect, yet it is clear they did not claim to speak ex cathreda in their interpretation of the statutes. The cases referred to supra were controlled by other subdivisions of this section. The facts in this case, however, bring it clearly within the proviso of the section quoted, supra. This entire section and section 12950 must be read together.

"So far as reasonably possible the several statutes, although seemingly in conflict with each other, should be harmonized, and force and effect given to each, as it will not be Presumed that the Legislature, in the enactment of a subsequent statute, intended to repeal an earlier one, unless it has done so in express terms, nor will it be presumed that the Legislature intended to leave on the statute books two contradictory enactments." 36 Cyc. 1149.

Again, on page 1151:

"Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more...