King v. Riverland Levee District

• Decision Date: 05 January 1926
• Parties: TOM M. KING, Respondent, v. RIVERLAND LEVEE DISTRICT, Appellant.
• Court: Missouri Court of Appeals

279 S.W. 195

218 Mo.App. 490

TOM M. KING, Respondent, v. RIVERLAND LEVEE DISTRICT, Appellant.

Court of Appeals of Missouri, St. Louis

January 5, 1926

Appeal from the Circuit Court of Pike County.--Hon. Edgar B Woolfolk, Judge.

REVERSED.

Judgment reversed.

J. W Matson for appellant.

Ras. Pearson for respondent.

BECKER J. Daues, P. J., and Nipper, J., concur.

OPINION

BECKER, J.--

This is a suit instituted by Tom M. King, Collector of Revenue of Pike county, Missouri, to recover from the Riverland Levee District, a corporation organized under article 9, chapter 28, Revised Statutes of Missouri, 1919, a commission of two per cent on the sum turned over to defendant by the sheriff as the proceeds of sale on execution under a judgment obtained by said defendant upon delinquent levee tax bills. Plaintiff recovered below and the defendant in due course appeals.

This case was tried and submitted upon the following agreed statement of facts:

"Agreed statement of this cause submitted under sections 1548 and 1549 of article 17, chapter 12, Revised Statutes 1919 of Missouri.

"Now, this day come the parties in the above entitled cause, and agree to submit this cause to the circuit court of Pike county, Missouri, for determination and for the purpose of this submission only, agree that the following are the facts upon which this cause is to be decided:

"Plaintiff was on the 1st day of March, 1919, duly elected and qualified as the collector of revenue of Pike county, Missouri, and continued to be said collector until the 1st day of March, 1923; that at all times during the said period, plaintiff, as said collector, performed all the duties required of him by law, in relation to the collection of taxes due, or claimed to be due the defendant, and as said collector during said time was entitled to whatever commission the law provides, shall be paid to the collector of the revenue of Pike county, Missouri, upon taxes collected and paid to said defendant, or to any of the officers of said defendant for said defendant.

"That the defendant was on or about the 2nd day of September, 1914, in said circuit court duly incorporated, and organized under the law, relative to the organization of levee districts, by circuit courts of the State of Missouri, and has continued to, and is still existing as such levee district corporated since that time. That the defendant and its officers and employees have performed all the duties and requirements of the law, relating to such organizations.

"That certain taxes for the year 1921 due the defendant, became delinquent and defendant instituted suit in this court for said taxes against the Riverland Farms Co., a corporation, George E. Lynott, Bank of Louisiana, a corporation, Sam Sparrow and Pike County Land Company, a corporation, and a judgment, a copy of which is hereto attached, and made a part hereof, was duly and regularly rendered by this court in favor of the defendant, and against said defendants in said suit, for said taxes. That afterwards an execution was issued on said judgment, as shown by a copy of said execution hereto attached, and made a part of this agreement, and a sale of the land described in said judgment, and in said execution, was duly and regularly had, by virtue of said judgment and execution by the sheriff of Pike county, Missouri, and from the proceeds of said sale, the sum of $ 8204.96 for the taxes and the interest then due thereon to the defendant, under said judgment and said execution realized and paid to said sheriff, the said amount of taxes and the interest thereon so collected was paid by said sheriff direct to the treasurer of this defendant, and by said treasurer paid to this defendant, and said amount so paid was not for any commission taxed as costs for the plaintiff.

"That plaintiff claims that he is entitled to a commission of two per cent on said amount of said taxes and the interest thereon totaling $ 164.09, so collected by said sheriff, under and by virtue of said sale under said judgment and said execution, and so paid by said sheriff to said treasurer of the defendant and by said treasurer paid to the defendant, the same as though said amount of taxes and interest had been collected by the plaintiff before suit and by plaintiff paid to said treasurer of defendant and by treasurer paid defendant.

"The defendant herein denies that plaintiff is entitled to said commission, or any part of the same, on said taxes and the interest thereon so collected and paid as aforesaid, and that question on the facts herein agreed upon, is hereby submitted to the court for its determination in this cause."

It is no longer open to question but that compensation to a public officer is a matter of statute and not of contract, and that compensation exists, if it exists at all, solely as the creation of the law and then is incidental to the office. [State ex rel. Evans v. Gordon, 245 Mo. 12, l. c. 27, 149 S.W. 638; Sanderson v. Pike County, 195 Mo. 598, 93 S.W. 942; State ex rel. Troll v. Brown, 146 Mo. 401, 47 S.W. 504.] Furthermore our Supreme Court has cited with approval the statement of the general rule to be found in State ex rel. Wedeking v. McCracken, 60 Mo.App. 565, to the effect that the rendition of services by a public officer is to be deemed gratuitous, unless a compensation therefor is provided by statute and that if by statute compensation is provided for in a particular mode or manner, then the 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. Evans v. Gordon, supra.]

What, then, do our statutes provide, if anything, upon the question in issue here? It is conceded that "practically all the law" governing the rights of the collector to commissions on delinquent levee taxes so far as the instant case is concerned, is set forth in article 9, chapter 28, Revised Statutes of Missouri, 1919.

Said chapter 28, which is devoted exclusively to "Drains and Levees," comprises eleven articles. Article 1 thereof which deals with the organization of drainage districts by circuit courts, provides by section 4426 that delinquent drainage taxes shall be certified by the Secretary of the Board of Supervisors to the county treasurer as ex officio collector of delinquent taxes, who shall collect such delinquent drainage taxes at the same time and in the same manner as is herein provided for the collection of delinquent drainage taxes in counties not under the provisions of chapter 121, Revised Statutes of Missouri, 1919; and further provides that the lien of such taxes shall be enforced and suits to collect such delinquent taxes shall be instituted by the drainage district on tax bills duly made out and certified by the county treasurer as ex officio collector of delinquent taxes.

Article 2 provides for the organization of entire counties into drainage districts by the county court, such districts having the benefits of article 1.

Article 3 relates to drainage district organizations by county courts upon petition of a majority of the landowners therein, and the levying of a tax therefor, which shall be levied upon the lands within the district and that such tax shall be collected by the collector of the county in the same manner that the State and county taxes are now collected.

Article 4 provides for the construction and improvement of ditches, water courses and levees by county courts by petition and the drainage taxes provided for therein, when they shall have become delinquent, shall be recovered by a suit "brought by the attorney for the drainage district in the name of, and to the use of the collector of revenue of the county wherein the land lies, against the land or other property on which such drainage tax has not been paid."

Article 5 deals with the drainage of swamp lands by county courts upon petition, without forming drainage districts, and provides that the tax levied under the provisions of this article shall be collected by the county collector and their collection enforced, "in the same manner as other taxes for general purposes and shall be equally a lien upon the land assessed until paid."

Article 6 provides for the drainage of lands by individuals for agricultural or sanitary purposes without forming such land into a district. In case the owners of the land benefited are unable to agree among themselves as to the manner of constructing the ditch or levee or laying the tile or letting the contract for the same, the county court shall have the power to let the work of construction out to the lowest bidder and apportion the cost to each tract or parcel of land in proportion to the benefits derived, and such costs shall become a lien thereon, which levy shall be enforced by suit, "brought on bills properly made out and certified to by the county collector, such suit to be brought in the name of the State at the relation of the interested party or parties in any court of competent jurisdiction."

Article 7 provides for fees for services rendered in organizing drainage and levee districts; section 4575 thereof provides that county and township collectors for collecting county taxes for drainage and levee districts shall receive one per cent of all such taxes collected, and for the collection of delinquent taxes for such districts they shall receive two per cent of the sum collected.

Article 8 deals with the organization of sanitary drainage districts by cities of three hundred thousand inhabitants and counties adjoining same, and it is therein provided that in such cities sanitary drainage districts may be established and special taxes are provided therein to provide means to carry into effect the objects for which such sanitary...