Hethcock v. Crawford County
| Citation | 98 S.W. 582,200 Mo. 170 |
| Parties | HETHCOCK v. CRAWFORD COUNTY, Appellant |
| Decision Date | 22 December 1906 |
| Court | Missouri Supreme Court |
Appeal fro Crawford Circuit Court. -- Hon. L. B. Woodside, Judge.
Reversed and remanded (with directions).
Frank H. Farris for appellant.
A. H Harrison for respondent.
Plaintiff was collector of Crawford county, gathering taxes from March 1899, until March, 1901, and during that time collected certain back and delinquent taxes due the county revenue and road funds.
His term expiring, afterwards, to-wit, on December 19, 1902, he presented a written statement of account to the county court of Crawford county, claiming thereby that the county was indebted to him for five per cent commission on said back taxes, which commission he alleged he had paid over through a "mistake of fact," and which he demanded paid back.
His claim being disallowed, he appealed to the circuit court. Thereat on trial, without a jury, he had judgment in the sum of $ 312.22. Thereat the county, in turn appealed -- the case coming here by virtue of the constitutional provision giving this court jurisdiction in cases in which a county is a party.
The facts lie in small compass, viz.: Plaintiff seems to have made his settlements with the county court from time to time under sections 9236, 9247, 9248 and 9255, Revised Statutes 1899, and finally received his "full quietus" under section 9288. In such settlements and statements he deducted his commission for collecting current taxes and paid over said taxes, less his commission. In collecting back taxes, he required the taxpayer to pay the four per cent penalty provided by Revised Statutes 1899, section 9309, and he retained the same; but in said statements and settlements he reported the full amount of such back taxes; and, in paying them over, he did not deduct the five per cent commission allowed him under the ruling of Division Two of this court in State ex rel. v. Hawkins, 169 Mo. 615, 70 S.W. 119, Revised Statutes 1899, section 9260. In no statement or settlement so made by him as revenue collector does there appear aught referring to commission on back taxes.
After identifying his statements, settlements, etc., for the purpose of their being put in evidence, they were put in and show the amounts of back taxes collected; and also show he deducted nothing for commission thereon. Following that, plaintiff testified he had never been paid (repaid?) the five per cent commission allowed by law for back taxes collected by him during his official term. He further testified that during his term he had presented the matter in no other shape to the court, except as shown by his settlements; and that in his final settlement, when he received his own and his sureties' discharge (the quietus spoken of in R. S. 1899, sec. 9288), he made no such claim. On being inquired of if he had knowledge that he was entitled to any more, he replied, "I thought I was entitled to them." He further testified, as we understand it, that he did not carry these commissions into any of his books.
The foregoing is plaintiff's case on the facts -- defendant putting in no proof.
The giving and refusing of the following instructions will show the theory of the trial court to be that his mistake was one of fact.
Instruction number 1 asked by defendant, and refused (defendant excepting), was as follows: "The court finds that the failure of the plaintiff to make a claim for his commission sued for, in his statement with the county while he was collector, was because he did not know or believe that, under the law, he was entitled to such commission, and that therefore such mistake was a mistake of law, and not of fact, and he is not entitled to recover."
Instruction number 1 given on the court's own motion for plaintiff (defendant objecting and excepting), was as follows: "The court declares the law to be that if the collector of Crawford county made a report of the collection of back taxes made by him to the county court, and made no claim for commission, and the matter of commission was not considered, by the court in any way, then the said facts will not constitute a bar of plaintiff's claim for such commission."
The defendant county seeks to reverse the judgment for the following reasons:
(a) In that the mistake of Hethcock was a mistake of law and not of fact.
(b) In that the county court of Crawford county had no jurisdiction of the case; and, ergo, the circuit court acquired none.
(c) In that the final settlement of Hethcock as collector is such settlement as may only be reopened, surcharged and falsified in equity on a charge of fraud, mistake, etc.
In the view we take of this case, the first assignment of error is good, hence it matters not whether the two last are good or bad.
That the mistake of Hethcock was a typical mistake of law, unmixed with a mistake of fact, single to him or mutual to both, would seem to be the only allowable conclusion that should be predicated of this record. This, we think, is so, because:
Section 9260, Revised Statutes 1899, relates to the commissions a collector may retain. The case at bar proceeds on the assumption that Crawford county comes within clause "V" of that section, and that the collector of such county is entitled to "a commission of five per cent on the amount collected." The opening paragraph of that section reads thus: "The collector shall receive as full compensation for his services in collecting the revenue, except back taxes, the following commissions and no more." Construing that section with section 9309, relating to fees and compensation in collecting back taxes, wherein the collector is allowed "four per cent on all sums collected . . . to be taxed as costs and collected from the party redeeming," Division Two held in State ex rel. v. Hawkins, supra, that a collector is entitled to retain, first, the four per cent paid by the taxpayer as a penalty; and, second, the five per cent referred to in the opening paragraph of section 9260, to be taken by him out of the amount of back taxes collected. That opinion was handed down October 22, 1902. It will be seen that presently after that construction was placed on the collector's right to commissions by this court, plaintiff for the first time took notice of, or asserted any claim to, the commission in controversy. Such belated action does not conclusively show that plaintiff had theretofore been ignorant of the law and did not move because of being in the dark, but it tends in that direction, and, taken in connection with other matters now to pass under review, would seem to set the matter at rest. Thus, if we look to other provisions of the statutes it will appear that plaintiff's duty was to report his tax collections and to retain his five per cent commissions -- the language of the statute being (sec. 9255) that the collector "shall, on or before the fifth day of each month, file with the county clerk a detailed statement, verified by affidavit, of all . . . county . . . road and municipal taxes . . . by him collected during the preceding month, and shall, on or before the fifteenth day of the month, pay the same, less his commissions, into the state and county treasuries, respectively . . ."
In addition to the precise provisions of the lastquoted section there are cognate sections providing for settlements; and the manifest theory of the statutes is that the collector report his commissions in his settlements, and that it is his privilege and duty to keep back the commissions allowed by the law on tax collections and not the county court's duty to see that he does. The county court does not prepare his settlements, nor does it...
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