Dalton v. Fabius River Drainage Dist.

• Decision Date: 09 January 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

January 9, 1945

Respondent's Motion for Rehearing Overruled, Opinion Filed February 7, 1945. Certiorari Denied by Supreme Court March 5, 1945.

Appeal from the Circuit Court of Marion County; Hon. Roy B Meriwether, Judge.

Reversed and remanded.

Roy Hamlin for appellant.

(1) The demurrer admits the truth of all material facts well pleaded and inferences reasonably to be drawn therefrom. 1 Houts, Missouri Pleading and Practice, sec. 100. The amended petitions plead the authority of plaintiff as collector of Marion County to collect the current drainage district taxes, that no one else is authorized to collect them, that defendants interfered with his collection thereof and wrongfully collected them and kept plaintiff's commissions; they set up all of the necessary facts. (2) Plaintiff pleads that the drainage districts were organized by pro forma decree by the Circuit Court of Marion County. As the county collector of revenue, plaintiff has sole, exclusive statutory authority to collect the current drainage district taxes. Chapter 79, R. S. Mo. 1939, especially Sections 12340, 12341, 12342, 12370. Under these sections it is the duty of the drainage district to levy the annual installments of drainage taxes and furnish the collector with the "drainage tax book" and the statutory certificate, and the collector is vested with the exclusive right to collect such taxes. Drainage District No. 1 v. Daudt, 74 Mo.App. 579, 584, 585; Elsberry Drainage District v. Winkelmeyer, 212 S.W. 893; State ex rel. v. Angert, 127 Mo. 456, 463; State ex rel. Kinder v. Little River Drainage District, 236 S.W. 848, 850; Little River Drainage District v. Friedlein, 165 S.W.2d 396. This suit was properly filed in the Circuit Court of Marion County, wherein these drainage districts were incorporated by pro forma decree and which has jurisdiction over the districts, a majority of the lands whereof lie in its jurisdiction. The drainage law is a code unto itself and determines jurisdiction. (3) Count V. states facts entitling plaintiff to have defendants enjoined from collecting the unpaid drainage taxes due and payable on or before January 1, 1944, which, it is alleged, defendants were threatening to collect. (Cases, supra.)

John L. Plowman and Ben E. Hulse for respondents.

(1) The compensation of a public officer is a matter of statute and not of contract, and exists solely as a creature of law. State ex rel. Evans v. Gordon, 245 Mo. 12, 27; King v. Riverland Levee District, 218 Mo.App. 480, 492, 279 S.W. 195, 196. (2) Fees of officers are matters of strict law, depending upon the very provision of the statute. They are not open to equitable construction, nor to any discretionary action on the part of the officials. 43 Am. Juris., p. 360, sec. 359; U.S. v. VanDugee, 185 U.S. 278; U.S. v. Shields, 153 U.S. 88, 91. (3) All statutes providing compensation for a public officer must be strictly construed, and the officer cannot legally claim compensation unless the statute expressly confers the right to such compensation. State ex rel. v. Patterson, 152 Mo.App. 264; Shed v. Kansas City, etc., R. Co., 67 Mo. 687, 690; King v. Riverland Levee District, 218 Mo.App. 490, 492, 279 S.W. 195, 196; Ford v. Railroad, 29 Mo.App. 616, 624; Holman v. City of Macon, 155 Mo.App. 398. (4) It is well settled that if the statute provides compensation for a public officer in a particular mode or manner, such officer is confined to that manner, and is entitled to no other or further compensation, or to any different mode of securing the same. State ex rel. v. Gordon, 245 Mo. 12, 28; King v. Riverland Levee District, 218 Mo.App. 490, 492, 279 S.W. 195, 196. (5) Article I of Chapter 79, R. S. Mo. 1939, under which defendant districts are organized, is a code unto itself. It fixes the rights and liabilities of all with respect to matters involved. State ex rel. v. Locust Creek Drainage District, 228 Mo.App. 434, 444, 67 S.W.2d 840. (6) Section 12344 of Article I of Chapter 79, provides the amount of the collector's compensation and the particular mode or manner by which he may receive and obtain the same, viz.: one per centum of current drainage taxes which he may obtain by retaining same out of the taxes he collects. (7) Before the collector is authorized to collect drainage district taxes, he is required to give a bond conditioned that he shall pay over and account for all taxes collected by him according to law. Sec. 12342, R. S. Mo. 1939. (8) The circuit court of Marion county has no jurisdiction of this action since it appears on the face of the petition that defendants maintain their business offices in the City of Hannibal, Mason Township, Marion County, Missouri. Sec. 2414, R. S. Mo. 1939. (9) The count in said petitions seeking to enjoin the collection of the 1943 taxes in addition to its failure to state facts sufficient to warrant the relief prayed, became moot, since the causes were not submitted to the court until long after the time for the collection of said taxes had expired.

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

OPINION

McCULLEN

This action was instituted in the Circuit Court of Marion County, Missouri, by the Collector of Revenue of said county, as plaintiff, against the Fabius River Drainage District, as defendant, to recover from defendant fees and commissions on taxes alleged to have been paid to the officers of said drainage district. A demurrer, filed by defendant, was sustained by the court as to each of the five counts of plaintiff's petition. Plaintiff saved his exceptions to the court's ruling and declined to plead further, whereupon the court entered final judgment against him and in favor of defendant. Plaintiff duly appealed.

In paragraph (1) of Count I of his amended petition plaintiff alleges that he is the duly elected, qualified and acting tax collector of Marion County, Missouri, and that defendant, Fabius River Drainage District, is incorporated under and by virtue of a pro forma decree of the circuit court of said county; that the bulk of the lands of said drainage are located in said county, outside of Mason and Miller Townships, and within the jurisdiction of said circuit court, and that defendant maintains its office and place of business in Hannibal, Mason Township, in said county.

In paragraph (2) of said Count I plaintiff states that under the laws of Missouri, he, as the tax collector of said county, is the only one authorized to collect the drainage taxes due each year on the lands in said drainage district, at the same time and place he collects other taxes as designated by law; that when said drainage district certifies tax books to him he is authorized by the laws of Missouri to collect said drainage taxes, and that he is entitled to a commission of one and three-fourths per cent on all said drainage taxes paid by the property owners on the property in said drainage district, and was at all times hereinafter mentioned entitled to such fees; that he is the only one authorized by law to collect and receive a fee for the collection of said drainage taxes.

Plaintiff avers in paragraph (3) of said Count I that at all the times mentioned in his amended petition defendant, by and through its officers, agents and employees, has persistently and continuously done each, all and everything it could to prevent him, as collector of said county, from collecting said drainage taxes, and has persistently, during the years mentioned in his amended petition, done each, all and everything it could do in getting said taxes from the various property owners in said drainage district and then keeping the collector's fees allowed only to the collector of said county; that defendant has purported to give a receipt, instead of the collector's official receipt, for said money so collected, and has failed and refused, even though many times demanded by plaintiff, to pay to him the fees and money due him and authorized to be paid to him in his official capacity as collector of said county.

The amended petition, in paragraph (4) of Count I, states that for the year 1939 for said drainage district, the original taxes due, or original charges for drainage taxes, on the books of the collector for said district, was $ 9248.78, and of said sum plaintiff actually collected $ 733.50, and certified as delinquent, as the county collector to the drainage district secretary, the sum of $ 8515.28; that thereafter the drainage district secretary reported as collected by said secretary the sum of $ 5944.68, and certified as delinquent the sum of $ 2570.60, and that said drainage district retained plaintiff's one and three-fourths per cent commission on said sum of money, and has failed and refused to pay the same to plaintiff; that plaintiff, as collector of said county, is entitled to a commission of one and three-fourths per cent, as provided by law, on $ 5944.68, or a total commission of $ 104.10; that plaintiff has demanded of said drainage district said sum of money but said district has at all times refused to pay same. Plaintiff prays judgment on said first count in the sum of $ 104.10, together with interest thereon, and his costs.

In Counts II, III, and IV of the amended petition plaintiff adopts all of paragraphs 1, 2 and 3 of Count I and makes them a part of each of said Counts II, III and IV as though they were set out verbatim. Said Counts II, III, and IV deal with the amounts of drainage taxes collected and the fees alleged to be due plaintiff for the years 1940, 1941, and 1942, rsepectively.

In Count II plaintiff alleges that the drainage district...