City of Berger ex rel. Dieterle v. La Boube

• Decision Date: 14 September 1953
• Docket Number: No. 43527,No. 1,43527,1
• Citation: 260 S.W.2d 527
• Parties: CITY OF BERGER ex rel. DIETERLE, City Collector, v. LA BOUBE
• Court: Missouri Supreme Court

Page 527

260 S.W.2d 527

CITY OF BERGER ex rel. DIETERLE, City Collector, v. LA BOUBE.

No. 43527.

Supreme Court of Missouri, Division No. 1.

Sept. 14, 1953.

Wm. H. Wessel, Hermann, for appellant.

Frank W. Jenny, James A. Cole, Union, for respondent.

DALTON, Judge.

Action for the collection of a poll tax of $3 levied by an ordinance of the City of Berger, a city of the fourth class, under the powers granted by Section 94.280 RSMo 1949, V.A.M.S. The city recovered a judgment for the maount of the tax and the defendant has appealed.

The appeal was originally taken to the St. Louis Court of Appeals, but that court has transferred the cause here. City of Berger v. La Boube, Mo.App., 252 S.W.2d 659. We have jurisdiction since the determination of the appeal involves 'the construction of the revenue laws of this state'. Art. V, Sec. 3, Const. of Missouri 1945, V.A.M.S.; Moore v. Vaughan, 53 Mo.App. 632, Id., 127 Mo. 538, 30 S.W. 162; City of Stanberry v. Jordan, 145 Mo. 371, 46 S.W. 1093; State ex rel. Divine v. Collier, 301 Mo. 72, 256 S.W. 455; City of Berger v. La Boube, supra.

Appellant contends that the court erred in entering judgment against him for the following reasons: (1) that Ordinance No. 7 of the City of Berger, adopted June 13, 1950, under which the $3 poll tax in question was levied, is not in conformity with a prior general poll tax ordinance of said city nor in conformity with Sec. 94.280, supra, in that the ordinance levies a money tax and grants the taxpayer no option to pay in labor; (2) that 'the collector of the City of Berger did not, upon receipt of the poll tax list, without delay, give notice to the taxpayers subject to poll tax as specifically provided by Section 4' of the said prior general poll tax ordinance; (3) that the notice given to taxpayers of the levying of the poll tax in question is not in conformity with Sec. 94.280, supra, nor with the said prior general poll tax ordinance of said city in that it contained no provision under which the taxpayer could make payment in labor; and (4) that, even if Ordinance No. 7 of June 13, 1950 levying poll tax for 1950 was, in the respect mentioned, in conformity with the statute and the prior general poll tax ordinance of said city, the assessment is null and void for the reason that the City of Berger, at the time in question, had no marshal to lay the poll tax list before the board of aldermen and no street commissioner to receipt taxpayers for work done upon the streets, alleys and avenues of the city.

The facts have been stipulated by the parties and will be stated in the course of the opinion. No authorities purporting to be applicable to the merits of the controversy have been cited in the briefs filed by appellant and respondent. It is admitted the City of Berger is a city of the fourth class; that Sec. 94.280 applies to such city; that 'on the 1st day of June, 1950 and during the remainder of the calendar year of 1950 there was no duly elected or appointed, qualified and acting Marshal * * * and no duly appointed, qualified or acting Street Commissioner within and for said City of Berger'; and that, in June, 1950 appellant was an able-bodied male person between the age of twenty-one and fifty years, who had resided within the corporate limits of the City of Berger thirty days next preceding the levying of the poll tax in and by Ordinance No. 7.

Since the controversy turns primarily upon the construction of Section 94.280 RSMo 1949, V.A.M.S. we quote that section. 'All able-bodied male persons between the ages of twenty-one and fifty years, who have resided within the corporate limits of such city thirty days next preceding the levy of any poll tax for any given year, shall be liable to work on the streets and alleys of such city not to exceed three days or to pay such sum in lieu thereof as the board of aldermen may provide by ordinance, not to exceed four dollars, and upon failure to pay such poll tax, either in cash or by labor, when notified so to do, according to the ordinances of such city, it shall be the duty of the city collector to bring suit before some magistrate of the county in which such city is located, and proceedings shall be had thereon the same as in other ordinary civil cases; but no property shall be exempt from seizure and sale upon any execution issued upon any judgment rendered for such poll tax. The board of aldermen are hereby empowered to levy a poll tax not exceeding four dollars upon each able-bodied male person between the ages of twenty-one and fifty years, who shall have resided within the city thirty days next preceding the levy of such poll tax. Suits under this section may be brought independently of any other tax suits against any defendant pending on back taxes, owing by any defendant at the time suits under this section are brought.'

The agreed statement of facts fails to show the date on which the city ordinance, which is referred to as the prior general poll tax ordinance of the City of Berger, was adopted. The first four sections of this ordinance are as follows:

'Section 1, Levy--all able-bodied male persons between the ages of twenty-one and fifty years, who have resided within the corporate limits of the City of Berger, thirty days next preceding the levy of any poll tax for any given year, shall be liable to work on the streets and alleys of the City not to exceed three days, or to pay such sum in lieu thereof as the board of aldermen, from time to time, may provide by ordinance, not to exceed four dollars.

Section 2. Board of Aldermen to Revise List. At the first regular meeting of the board of aldermen in June of each year, the city marshal shall lay the poll tax list before the board of aldermen for revision and correction, and the board of aldermen shall correct the same by striking therefrom the names of all persons improperly entered on such list and by adding thereto the names of all persons improperly omitted from such list so as to make the same as near as possible a true and correct list of all persons liable for such poll tax, and none others, and when said list shall be so corrected, it shall be the basis upon which the board of aldermen shall levy the poll tax form that year and the board of aldermen shall immediately after revising said poll tax list make a levy as provided for in section one of this chapter.

'Section 3. City Clerk to Extend Poll Taxes and Deliver List. Whenever any such poll tax list shall be corrected by the board of aldermen, the city clerk shall thereon extend against each name on such list the poll tax levied for the fiscal year in which such list is made, and make out and certify under his hand and the seal of the City of Berger, a true and complete copy of the same, with the tax so extended thereon, and deliver the same to the city collector for collection and charge him with the amount of such poll tax.

'Section 4. Collector to Give Notice. Upon the receipt by the collector of such corrected poll tax list as mentioned in section three of this chapter, he shall, without delay, give notice by posting a written or printed notice in five public places in said city stating the fact that he is in possession of such list, that he is ready to receive such poll tax either in cash or by the receipt of the street commissioner showing that any person whose name appears on said list has paid his poll tax by labor upon the streets, avenues and alleys of the City of Berger and that unless such poll tax be paid either in cash or labor on or before the first day of October then following, the name shall be returned delinquent.' The remaining sections of the ordinance are not material to the present controversy.

On June 13, 1950 the following ordinance was duly adopted by said city.

'Ordinance No. 7. An Ordinance Levying A Poll Tax on Able-Bodied Citizens.'

'Section 1. That a Poll Tax of Three Dollars be and is hereby levied against all able-bodied Male persons in the City of Berger, between the ages of twenty-one and fifty years for the year 1950.

'Section 2. That all Ordinances and part of Ordinances in conflict with this Ordinance are hereby repealed. * * *.'

At the meeting of the board of aldermen at which Ordinance No. 7 was passed, the mayor of the city, because of a vacancy in the office of city marshal, presented to the board a poll tax list containing the name of appellant and other poll taxpayers. There is no contention that the list was not corrected and approved and the tax levied against appellant and other persons. The list was duly certified by the city clerk and purports to be the 1950 poll tax list of said city and to show that $3.00 is due the City of Berger as poll tax for 1950 from appellant and each of...