Maguire v. State Sav. Ass'n

• Decision Date: 31 January 1876
• Citation: 62 Mo. 344
• Parties: CONSTANTINE MAGUIRE v. THE STATE SAVINGS ASSOCIATION, Respondent, and THE COUNTY COURT OF ST. LOUIS COUNTY, Appellant.
• Court: Missouri Supreme Court

62 Mo. 344

CONSTANTINE MAGUIRE

v.THE STATE SAVINGS ASSOCIATION, Respondent, and THE COUNTY COURT OF ST. LOUIS COUNTY, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Thomas C. Reynolds, for Appellant, cited Walker vs. St. Louis, 15 Mo., 563: Christy's Adm'r vs. St. Louis, 20 Mo., 143; State vs. Powell, 44 Mo., 436; Hill. Tax., pp. 421-4, 449-51; Fellows vs. School, 39 Me., 559; Dow vs. Chicago, 11 Wall., 108; Miss. Co. vs. Jackson, 51 Mo., 23; Hill. Tax., 423, § 92 b.; Brown vs. Harris, 52 Mo., 307.

Noble & Orrick, for Respondent, cited Gen. Stat., 1865, ch. 13, §§ 26, 58 and 84; Falconer vs. Higgins, 2 McLean, 212; Cooley Const. Lim., 2d ed., 266; Goggins vs. Turnipseed, 1 S. C., (N. S.) 180; Claflin vs. McDonough, 33 Mo., 412; Smith vs. Redfield, 27 Me., 145; Preston vs. Boston, 12 Pick., 7, 14 and 15; Sumner vs. Dorchester, 4 Pick., 361; Joyner vs. School Dist., 3 Cush., 567; Dakotah vs. Parker, 7 Minn., 273; Mayor of Balt. vs. Leffenower, 4 Gill., 425.

SHERWOOD, Judge, delivered the opinion of the court.

This proceeding in its origin was an action for money had and received. It was brought in 1873 by the State Savings Association against Constantine Maguire, former collector of St. Louis county, for the recovery of $10,372.54, alleged to have been illegally collected by him in 1871, when acting in the before mentioned official capacity, and converted to his own use. The above sum was collected as interest on certain tax bills amounting to $25,593.60, assessed against certain personal property of the association, for the years 1865-66 and 1867. Pending the action thus brought, the county court of St. Louis county, as is alleged, made claim to the money so collected, but never accounted for. Whereupon Maguire filed his petition in the nature of a bill of interpleader, praying that the association and the county court be required to interplead in order to the determination of the question to whom the money belonged. This was accordingly done, and the court, on evidence adduced, found and decreed for the association, holding it entitled to recover the money for which it had originally sued.

The case thus presented involved two questions: 1st, whether the tax bills referred to bore interest after the occurrence of delinquency; 2d, if they did not bear interest, whether the interest was collected under such circumstances as to authorize its recovery by the association.

In relation to the first point no doubt is entertained. An examination of section 84, p. 122, Gen. Stat., 1865, the law in force at the time the taxes referred to had accrued, will clearly show that, while the legislature with special care provided that the taxes on land and town lots “should, if not paid, bear ten per cent. interest from the first day of January, etc.;” yet not the slightest mention is made in that section as to any interest by way of penalty in consequence of the nonpayment of taxes due on personalty.

The legislature, in thus specially mentioning and providing for interest on land tax, must be presumed to have had in contemplation the whole matter of affixing penalties for failure to pay taxes at the appointed time, and therefore intentionally negatived the accruing of interest on any species of property other than real. And this presumption obviously accords with the familiar maxim of such frequent recognition in statutory construction: expressio unius exclusio alterius.

And there is nothing in section 51, nor in other sections of the same chapter, at all indicative of a legislative intention to supply any supposed omission in section 84. But in addition to the reasons already urged, one of perhaps equal cogency is found in the reflection, that the sale of land for the nonpayment of taxes could not be immediately accomplished; while, by the provisions of section 26 of the same chapter, collectors were urged to diligence, and were empowered “to seize and sell the goods and chattels of the person liable for the taxes, in the same manner as goods and chattels are, or may be, required to be seized and sold under execution issued on judgment at law, and no property shall be exempt from seizure and sale for taxes, etc.”

Armed with such powers, no necessity, it seems, would exist for delay, so far as concerns taxes due on personalty, and if no delay, then, evidently, no necessity for interest by way of penalty. Whether the act under discussion be supported by reason or otherwise, is, however, a matter with which we have no concern, as we can by judicial construction, neither enlarge the penalties which it imposes on the one hand, nor diminish them on the other.

Section 58 of the same chapter, to which reference has been made, makes provision for the “full compensation” for the services of the collector, and, therefore, cuts off any possible inference to be drawn, that the law had left a margin, whereby that official could, under the euphemistic head of ““perquisites,” appropriate to his own use a portion of the monies collected. This being the status of the law applicable to the case before us, it would be difficult to arrive at any other conclusion, but that the money collected in excess of that really due was collected without authority of law, and extorsively obtained, and if this was done wilfully and corruptly, the offense of extortion was complete; for extortion is defined as “the taking of money by an officer, by color of his office, either when none at all is due, or not so much is due, or where it is not yet due.” (Coke Litt., 368 b; Wagn. Stat., 488, §§ 19,...