Dalton v. Fabius River Drainage Dist.

• Decision Date: 07 February 1945
• Parties: George O. Dalton, Collector, Appellant, v. Fabius River Drainage District, a Corporation, Respondent
• Court: Missouri Court of Appeals

184 S.W.2d 776

238 Mo.App. 655

George O. Dalton, Collector, Appellant, v. Fabius River Drainage District, a Corporation, Respondent

Court of Appeals of Missouri, St. Louis District

February 7, 1945

Reported at 238 Mo.App. 655 at 670. Certiorari Denied by Supreme Court March 5, 1945.

Original Opinion of January 9, 1945, Reported at 238 Mo.App. 655.

McCullen, J. Hughes, P. J., and Anderson, J., concur.

OPINION

McCULLEN

On Motion for Rehearing.

In its motion for rehearing herein defendant argues that plaintiff's petition was fatally defective in failing to state specifically that he had given a bond as collector of drainage taxes and that it was not sufficient that he did plead that he had duly qualified as county collector; that until both of said conditions are complied with plaintiff has no right under the statute, Section 12342, Revised Statutes Missouri, 1939, Missouri Revised Statutes Annotated, section 12342, to collect the drainage taxes, and therefore no right to the fees he seeks to recover.

Plaintiff's petition not only pleaded that he was "the duly elected, qualified and acting tax collector of Marion County, Missouri," but also pleaded that under the laws of the State of Missouri he, as the tax collector of Marion County, Missouri, "is the only one authorized to collect the drainage taxes due each year on the lands in the above-mentioned drainage district at the same time and place he collects the other taxes as designated by law."

The allegations quoted show, as do Sections 12340, 12341 and 12342, Revised Statutes Missouri, 1939, Missouri Revised Statutes Annotated, sections 12340, 12341, and 12342, that plaintiff, as the collector of Marion County, is the only person who has authority to collect the drainage taxes in question. Therefore, when he alleged that he was the duly elected, qualified and acting collector of Marion County, we think that necessarily meant that he was qualified to perform all the duties incumbent upon the person holding that office, and it was not necessary for him to plead evidentiary facts by specifically alleging, in addition thereto, that he had given the statutory bond referred to. As stated in the opinion proper, evidence need not be pleaded. [Section 940, R. S. Mo. 1939, Mo. R. S. A., section 940.]

The motion for rehearing is overruled. Hughes, P. J., and Anderson, J., concur.