Henry v. Manzella, 39750.

Citation201 S.W.2d 457
Decision Date21 April 1947
Docket NumberNo. 39750.,39750.
PartiesCARL J. HENRY, ELMER JOHN KEITEL, SR., and HARRY P. DRISLER, Members of the UNEMPLOYMENT COMPENSATION COMMISSION OF MISSOURI, Appellants, v. THOMAS MANZELLA, Respondent, MERCHANTS BANK, Garnishee.
CourtUnited States State Supreme Court of Missouri
201 S.W.2d 457
CARL J. HENRY, ELMER JOHN KEITEL, SR., and HARRY P. DRISLER, Members of the UNEMPLOYMENT COMPENSATION COMMISSION OF MISSOURI, Appellants,
v.
THOMAS MANZELLA, Respondent, MERCHANTS BANK, Garnishee.
No. 39750.
Supreme Court of Missouri.
Court en Banc, April 21, 1947.

[201 S.W.2d 458]

Appeal from Jackson Circuit Court. — Hon. Emory H. Wright, Judge.

REVERSED AND REMANDED (with directions).

Charles F. Moseley and John L. Porter for appellant; Michael J. Carroll of counsel.

(1) The respondent was afforded every opportunity to try out in court the validity of the commission's assessment of Unemployment Compensation taxes against him. State ex rel. Keitel v. Harris, 353 Mo. 1043, 186 S.W. (2d) 31; Sec. 9436, R.S. 1939, as amended 1941, Laws 1941, p. 635; Sec. 9432A, R.S. 1939 as amended 1941, Laws 1941, p. 619. (2) In rendering its decision in State ex rel. Keitel v. Harris this Court en Banc ruled that the tax collection procedure authorized by the Legislature in Subsection 9436(g) was constitutional. State ex rel. Keitel v. Harris, 353 Mo. 1043, 186 S.W. (2d) 31; Sec. 9436, R.S. 1939, as amended 1941. Laws 1941, p. 635. (3) The decision which was issued in this cause by Division One of the court on December 9, 1946 is in conflict with the decision of the Court en Banc in the Harris case, and it erroneously holds that Subsections (e) (8) and (g) of Section 9436 authorized the Unemployment Compensation Commission to usurp the functions of the judiciary. State ex rel. Keitel v. Harris, 353 Mo. 1043, 186 S.W. (2d) 31; Sec. 9436, R.S. 1939, as amended 1941, Laws 1941, p. 635. (4) Appellants' argument with respect to Workmen's Compensation cases and justice transcripts should be reconsidered. Mo. R.S.A. 3690; Tindall v. Marshall's U.S. Auto Supply Co., Inc., 348 Mo. 1189, 159 S.W. (2d) 302. (5) Procedure identical with that provided for in Section 9436(g) has been held valid by the Supreme Court of California. People v. Skinner, 18 Cal. (2d) 349, 115 Pac. (2d) 488, 149 A.L.R. 299; Sec. 9436 (g). R.S. 1939, as amended 1941, Laws 1941, p. 635; Stats, of California, Chap. 357, Sec. 26, Retail Sales Act of 1933, Stat. 1933, p. 2607, as amended, Stats. 1935, p. 1262. (6) Division One of the court erred in ruling on the constitutionality of Subsection 9436(g) because the respondent in this action did not specifically point out any constitutional provision that was violated by the subsection and did not show how his constitutional rights had been or would be denied him. State ex rel. Kenosha Auto Transport Corp. v. Flanigan, 349 Mo. 54, 159 S.W. (2d) 598; City of St. Charles v. Union Electric Co. of Missouri, 185 S.W. (2d) 297; Village of Grandview of Jackson County v. McElroy, 318 Mo. 135, 298 S.W. 760; Sec. 9436(g) R.S. 1939, as amended 1941, Laws 1941, p. 635; 2 Houts, Missouri Pleading and Practice, Annotated, sec. 484, p. 237. (7) By raising only the general allegation of the unconstitutionality of Subsection 9436(g), the respondent concedes that the certificate of assessment and the writ of execution issued thereon are valid if the subsection is constitutional. (8) The burden of showing that Subsection 9436(g) is unconstitutional rests upon the respondent, the subsection is presumed to be constitutional unless and until its unconstitutionality has been established beyond a reasonable doubt, and any remaining doubt as to the constitutionality must be resolved in favor of the statute's validity. Graves v. Purcell, 337 Mo. 574, 85 S.W. (2d) 543; State v. Kennedy, 343 Mo. 786, 123 S.W. (2d) 118; Sec. 9436, R.S. 1939, as amended 1941, Laws 1941, p. 635.

J.K. Owens for respondent.

Subsection G of Sec. 9436, R.S. 1939, as amended, Laws 1943, l.c. 947, provided a proceeding for the collection of unemployment compensation tax is unconstitutional. Arts, H.V. Constitution of Missouri; State ex rel. v. Harris, 186 S.W. (2d) 31; State ex rel. v. Ryan, 182 Mo. 349; State ex rel. v. Public Service Comm., 259 S.W. 445; State ex rel. Laundry v. Public Serv. Comm., 34 S.W. (2d) l.c. 46; Sonken Galamba v. Mo. Pac., 31 S.W. (2d) l.c. 527; Smith v. Thompson, 137 S.W. (2d) 897; State ex rel. York v. Lacker, 191 S.W. l.c. 1002; Finley-Keil Inv. Co. v. O'Connor, 256 S.W. 798; State ex rel. v. Nast, 209 Mo. 708; State ex rel. Columbian Tel. v. Atkins, 195 S.W. 798; Rhodes v. Benton, 230 Mo. 138.

DOUGLAS, J.


The Unemployment Compensation Commission, whose members are appellants herein, assessed unemployment compensation taxes against Thomas Manzella, the respondent. Manzella ignored the assessment and refused to pay it. Under the provisions of the statute (See. 9436(g), R.S. 1939, Mo. R.S.A. as amended) the commission filed a certificate in the circuit court stating, in effect, that it had made an "Order of Assessment of Contributions, Interest, and Penalties" against Manzella, an individual, a delinquent, who resides in Jackson County and whose contributions, interest and penalties are past due and unpaid; that Manzella had been notified of the assessment by personal service; that Manzella did not file any petition for a hearing, and the assessment has become final; that the amount due is $965.44 with $269.12 interest, a total of $1,234.56. An execution was issued as authorized by the...

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