Kirkpatrick v. Rose
| Decision Date | 13 February 1961 |
| Docket Number | No. 2,No. 47809,47809,2 |
| Citation | 344 S.W.2d 59 |
| Parties | Wilma KIRKPATRICK, Administratrix of the Estate of Robert Kirkpatrick, Deceased, Appellant, v. Billy ROSE, Cape Girardeau County, and Main Street Levee Improvement District, Respondents |
| Court | Missouri Supreme Court |
Stephen N. Limbaugh, Limbaugh & Limbaugh, Cape Girardeau, for appellant.
Blanton & Blanton, Sikeston, for respondent Bill Rose.
BOHLING, Commissioner.
Wilma Kirkpatrick, as Administratrix of the Estate of Robert Kirkpatrick, deceased, her husband, instituted this declaratory judgment action to determine the rights between her husband's estate and Billy Rose, his successor in office, to certain compensation allowed the Collector of Revenue of Cape Girarduau County, Missouri, her husband having died during his tenure as such Collector. Thereafter, the County of Cape Girardeau, Missouri, and the Main Street Levee Improvement District (organized under Ch. 245} were made parties to the action. No issue is presented respecting the pleadings. Upon a trial to the court, declarations were entered that plaintiff, as administratrix aforesaid, was indebted to the parties and in the amounts hereinafter stated for collected and unaccounted for taxes; that plaintiff was not entitled to commissions on taxes not collected by Mr. Kirkpatrick or to commissions on anticipated collections of taxes; and that defendant Rose could not be charged with the taxes collected and unaccounted for by Mr. Kirkpatrick. Judgment was entered in favor of the County of Cape Girardeau for $5,700.83, which sum included taxes due the State of Missouri, and in favor of the Main Street Levee Improvement District for $687.64 and against plaintiff, as administratrix aforesaid. Plaintiff has appealed. The real contest is over the rights of Mr. Kirkpatrick and Mr. Rose in the allowable compensation to the collector of said County for fiscal 1957, and briefs have been filed only on behalf of said parties.*
Plaintiff's notice of appeal was filed July 24, 1959. She claims relief in excess of $7,500. The County of Cape Girardeau was a party. We have jurisdiction. Mo.Const. Art. V, Sec. 3; Sec. 477.040; Laws 1959, S.B. 7.
The County of Cape Girardeau is a county of the third class. Robert Kirkpatrick was elected Collector of said County in 1954, and took office March 1, 1955. He died November 9, 1957. Billy Rose was appointed and qualified as Mr. Kirkpatrick's successor on November 25, 1957.
Taxes become delinquent on January 1st following the year in which they are due and payable; and this controversy arises from the fact that the collector of said County is allowed a percentage of the taxed collected for his compensation and the conduct of said office, and that the greater part of said taxes is paid annually near the end of the calendar year, a fact disclosed by this record and of which we may take judicial notice (Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543). The collections and allowable commissions for the collector's fiscal year beginning March 1, 1957, and ending February 28, 1958, are involved.
Defendant contends Mr. Kirkpatrick's allowable compensation is to be computed on and restricted to the taxes Mr. Kirkpatrick actually collected, that is, $453.271.34. Plaintiff contends said compensation should not be so restricted, but consideration should be given his performance of the duties of the office and the expenses incurred therefor during the fiscal year here involved.
Robert Kirkpatrick made the required monthly statements and settlements of taxes collected for March through October, 1957 (Secs. 139.210-139.230), and later a statement of his collection of taxes between November 1st and 9th, 1957, both inclusive, was filed under Secs. 52.180-52.200.
For the purposes of our statement we take plaintiff's figures and calculations of the taxes involved. In a few instances the tax figures in defendant's brief differ but do not materially affect the result.
Collector Kirkpatrick, between March 1st and November 9th, 1957, collected $453,271.57 in taxes, of which $35,374.23 were delinquent taxes and $417,897.34 were current taxes.
Collector Rose collected $1,266,742.67 (defendant says $1,267,742.67) in taxes from November 25, 1957, to February 28, 1958, the end of the fiscal year, of which $6,558.31 were delinquent taxes and $1,261,184.36 were current taxes.
The total gross tax collected by said collectors for the fiscal year 1957 was $1,720,014.24 (defendant says $1,721,014.24), of which $41,932.54 were delinquent taxes, and $1,679,081.70 current taxes.
The statement of Mr. Kirkpatrick's collections from November 1st to 9th, 1957, showed $81,944.55. At the time of his death he owed the State and County $77,914.41; Little River Drainage District $2,191.76, and Main Street Levee Improvement District $687.64. (The County Collector does not account to State and County officials for taxes collected for the drainage and levee districts before the court in this case.) He had on hand $74,405.34. With the consent of the interested parties and approval of the court wherein the estate was pending, $2,191.76 was paid said Drainage District. Upon defendant's refusing to accept the $72,213.58 balance, said $72,213.58 was paid to the County Treasurer and, according to the record, disbursed pro rata by him to the recipients of the tax money, including the State of Missouri. This $72,213.58 payment left $5,700.83 owing the State and County, and $687.64 owing Main Street Levee Improvement District; and the judgments entered therefor, mentioned in the first paragraph hereof, and not questioned.
We state the substance of the authorized statutory commissions for the Collector of Cape Girardeau County and the contentions of plaintiff and defendant Rose thereunder:
Item I. He is allowed a commission of 2%, taxed against and payable by the taxpayer, on all delinquent taxes collected. Sec. 52.290.
The parties agree that Mr. Kirkpatrick is entitled to 2% of $35,374.23 for delinquent taxes collected, or $707.48.
Item II. He is required to mail tax statements, at least fifteen days prior to delinquent date, to all resident taxpayers and receipts for all such taxes received by mail (Sec. 52.230), postage to be furnished by the county court (Sec. 52.240), and is to receive 'one-half of one percent * * * of all current taxes collected, including current delinquent taxes,' excluding certain taxes not here involved, 'as compensation for mailing said statements and receipts,' which compensation is unaccountable in the commissions allowed under Secs. 52.260 to 52.280 (Sec. 52.250).
Plaintiff claims 1/2 of 1% of $1,720,014.24 total 1957 fiscal current and delinquent taxes collected, for preparing and sending out the tax statements by Mr. Kirkpatrick, or $8,600.07. Defendant contends plaintiff is entitled to 1/2 of 1% on the $453,271.57 taxes actually collected by Mr. Kirkpatrick, or $2,266.35.
Item III. Under Secs. 52.120 and 52.130 he is required to maintain a branch office in the courthouse at Cape Girardeau and to keep specified records and one or more deputies in said office. Section 52.140 provides that he 'shall be allowed to retain, in addition to the amount now authorized by law, three-fourths of one percent of all taxes collected to cover the additional expense of maintaining such branch office.' See Laws 1915, p. 396.
Plaintiff claims 254/349ths of $12,900.11 (being the 3/4ths of 1% of $1,720.014.24 total 1957 fiscal taxes collected) to cover the expense of maintaining said branch office from March 1st to November 9th, 1957, or $9,387.84. (Plaintiff bases this 254/349ths on Mr. Kirkpatrick having maintained the office for 254 days during fiscal 1957, the office being vacant for 16 days, and defendant maintaining the office for 95 days.) Defendant contends plaintiff is entitled to 3/4ths of 1% of the $453,271.57 total taxes actually collected by Mr. Kirkpatrick, or $3,399.53.
Item IV. So far as material here, under Secs. 52.260(13) and 52.270 (see Laws 1955, p. 368), the annual compensation of the Collector of Cape Girardeau County, based on commissions on current taxes collected, is restricted to $5,500, being based on 1 1/2% of the first $350,000 collected and 1/2 of 1% on collections in excess thereof.
Defendant and plaintiff agree that Mr. Kirkpatrick collected approximately 25% ($417,897.34) of the taxes involved ($1,679,081.70) and should receive 25% of the $5,500 allowable maximum compensation, or $1,375.00
Item V. Under Sec. 52.280 said collector is authorized to retain for deputy and clerical hire 25% of his maximum compensation under Secs. 52.260 and 52.270, the same being payable out of commissions earned and not from general revenue. See Alexander v. Stoddard County, Mo., 210 S.W.2d 107.
Plaintiff claims 254/349ths of the $1,375 of Mr. Kirkpatrick's maximum allowable compensation for deputy and clerical hire (see explanation under 'III,' above), or $1,000.76. Defendant says this item should be 25% of said $1,375.00, maximum under 'IV,' above, or $343.75.
Plaintiff states the collector's total allowable commissions for the whole of the 1957 fiscal year were: 2% of $41,932.54 delinquent taxes, or $838.65, 1/2 of 1% of $1,720,014.24 total taxes collected, or $8,600.07. 3/4ths of 1% of $1,720,014.24 for maintaining branch office, or $12,900.11. Maximum allowable retained for compensation to collector, or $5,500. 25% of said $5,500 for deputy and clerical hire, or $1,375. This makes a total compensation of $29,213.83 for the 1957 fiscal year.
Mr. Kirkpatrick retained $16,718.05, and defendant Rose retained $15,482.22, a total of $32,200.27.
Plaintiff does not question defendant's contentions that a county collector has the burden of pointing out the specific statute under which the fees and commissions claimed are authorized (State v. Ludwig, Mo. Banc, 322 S.W.2d 841, 849; State ex rel. Forsee v. Cowan, Mo....
To continue reading
Request your trial
-
State ex rel. Sprouse v. Carroll County Com'n, WD
...her compensation, and if she does not, she is barred from later recovering the correct amount. The Commission points to Kirkpatrick v. Rose, 344 S.W.2d 59, 62 (Mo.1961), for the proposition that in dealing with issues concerning authorizing fees for a county collector, "the statutes are to ......