City of Berger ex rel. Dieterle v. La Boube

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

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.

Page 528

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

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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...