Pate v. Ross

• Decision Date: 27 June 1935
• Citation: 84 S.W.2d 961,229 Mo.App. 836
• Parties: SHARON J. PATE, APPELLANT, v. CHARLES G. ROSS, RESPONDENT
• Court: Missouri Court of Appeals

84 S.W.2d 961

229 Mo.App. 836

SHARON J. PATE, APPELLANT, v. CHARLES G. ROSS, RESPONDENT

Court of Appeals of Missouri, Springfield

June 27, 1935

Rehearing denied, July 26, 1935.

Appeal from the Circuit Court of Pemiscot County.--Hon. John E Duncan, Judge.

AFFIRMED.

Judgment affirmed.

Sam J Corbett for appellant.

Drainage taxes are not taxes for public purposes or taxes at all within the purview and sense of the article of the constitution pertaining to revenue and taxation. Ranney v. City of Cape Girardeau, 225 Mo. 514; Egyptian Levee Co. v. Hardin & Cummins, 27 Mo. 495. The statute only applies to the maintenance of State institutions and the support of public schools. Ranney v. City of Cape Girardeau, 255 Mo. 514; Egyptian Levee Co. v. Hardin & Cummins, 27 Mo. 495. The courts in construing a doubtful statute should resort to other statutes, more specifically appropriate to the subject, for the purpose of ascertaining the intention of the Legislature. Hannibal & St. J. R. Co. v. Shacklett, 30 Mo. 550, l. c. 557.

Ward & Reeves and C. G. Shepard for respondent.

Under the plain provisions of the statute, the law applying to the collection of State, county and school taxes applies to the collection of drainage taxes. Sections 10828, 9952, 9953, Revised Statutes 1929. Costs could not be collected in drainage suits that could not be collected in suits for the enforcement of State and county taxes. Chilton et al. v. Drainage District No. 8 of Pemiscot County, 63 S.W.2d 421. In Senate Bill No. 80 (Session Acts 1933, page 423), the Legislature used the term "taxes" in its general accepted term because special assessments are in every instance in the statutes applicable to levees and drains denominated taxes. Sections 11021, 11022, 11026, 11030, 10760, 10761, 10762, 10763, 10764, 10765, 10793, 10815, 10823, 10824, 10825, 10826, 10827, 10828, 10844, R. S. 1929. As to the question of payment of taxes, the collection thereof, credit for taxes, free of taxes, the word "taxes" is used synonymous with special assessments. Gibbs v. Peoples Bank, 64 N.E. 1060, l. c. 1062; Sheboygan Co. v. City, 11 N.W. 598; Hagerstown v. Herstzman, 49 A. 839, l. c. 39; Tull v. Toysty, 2 P. 866, l. c. 868. Senate Bill No. 80 (Session Acts in Mo., 1933, page 423), was passed to enable the State, county and school districts to collect the revenue necessary for their operation by relieving the penalties, costs, and attorney's fees. State v. Koeln, 61 S.W.2d 751; State v. Bair, 63 S.W.2d 64.

BAILEY, J. Allen, P. J. , and Smith, J., concur.

OPINION

BAILEY, J.

This is a suit to recover attorney fees in certain delinquent drainage tax suits. The defendant is the county collector of Pemiscot county, and holds the fees sought to be recovered under an agreement pending the outcome of this litigation. The case was tried under an agreed statement of facts and in addition the testimony of defendant. The agreed statement of facts is as follows:

"Now at this time it is admitted that the plaintiff Sharon J. Pate, is the duly appointed, qualified and acting attorney for drainage districts Nos. 6, 8, 10, 12, 14, 16, and 18, of Pemiscot County, Missouri, and was at all times mentioned in plaintiff's petition and in the answer. That the defendant, Chas. G. Ross is and was at all times mentioned in the petition and answer, the duly elected, qualified and acting collector of the revenue of Pemiscot County, Missouri; and that among the duties of his office was the collection of the tax assessments of the drainage districts named. It is admitted that as Collector of the Revenue of Pemiscot County, Missouri, and acting for the drainage districts mentioned, that the defendant, Chas. G. Ross, collected the attorney's fees as set forth in Exhibit A attached to plaintiff's petition, and the suits therein named, to the total amount of $ 1072.63.

"It is further admitted that the defendant, in the exhibit 'A' filed with plaintiff's petition, paid the amount of the attorney's fees and court costs, as mentioned and set forth in exhibit 'A' to plaintiff's petition, under protest; and that each of these cases were filed by Chas. G. Ross, as collector of revenue, by the plaintiff herein as attorney for said drainage districts, and that said suits were filed and pending in the Circuit Court of Pemiscot County, Missouri, at the time plaintiff's exhibit 'A' showed that the tax and other amounts mentioned thereon were paid, and that no judgment had been rendered in either of said cases, and the circuit court had made no order as to the amount of costs or attorney's fees. And that while said cases were pending in said court the different named landowners mentioned in plaintiff's exhibit 'A,' went to the collector and paid their taxes, and refused to pay the costs and attorney's fees. But upon agreement between each of them and Chas. G. Ross, said amount of costs and attorney's fees as shown by exhibit 'A' were paid to Chas. G. Ross, to be by him held until the matter was determined by a court of competent jurisdiction, and that the said Chas. G. Ross still holds under that agreement the said sum sued for herein, $ 1072.63."

Defendant Ross testified the amount of attorney fees shown by Exhibit A had been collected by him; that he held said fees under an agreement whereby the drainage taxes were paid including attorney fees and costs in pending delinquent suits, the attorney fees and cost being paid under protest, the money so collected for attorney fees to be paid Mr. Pate in the event the courts should hold the property owners liable for such tax, otherwise, said monies were to be returned to the property owners.

The defense set up in defendant's answer is to the effect that under the provisions of Senate Bill No. 80 (Acts of 1933, p. 423), the attorney's fees sued for are remitted, and are not collectible; that under the provisions of section 10828, Revised Statutes 1929, combined with said Senate Bill, the attorney fees sued for herein are not chargeable against the land upon which drainage taxes were paid and plaintiff is therefore not entitled to recover. On trial to the court, judgment was for defendant and plaintiff has appealed.

Plaintiff makes one specific assignment of error to the effect that the trial court erred in holding that the provisions of Senate Bill 80 applied to drainage districts. Sections 1 and 3 of the act in question read as follows:

"Sec. 1. In payment of the taxes assessed against any person whose name appears upon the personal delinquent lists of any year or years prior to January 1, 1933, and in payment of the taxes assessed against any real estate which appears upon the lists of delinquent and back taxes of any year or years prior to January 1, 1933, including delinquent taxes for the year 1932, the collectors of revenue of the counties and cities of this State are hereby empowered and directed to accept the original amount of said taxes as charged against any such person or real estate relieved of the penalties, interest and costs accrued upon the same; provided, however, that such remission of penalties, interest and costs shall be in full if said taxes are paid not later than June 30, 1933; if paid after June 30, 1933, and not later than August 31, 1933, then such remissions shall be seventy-five per cent of such penalties, interest and costs; if paid after August 31, 1933, and not later than October 31, 1933, such remission shall be fifty per cent of such penalties, interest and cost; if paid after Oct. 31, 1933, and not later than Dec. 31, 1933, then such remission shall be twenty-five per cent of such penalties, interest and costs: Provided, further, that after Dec. 31, 1933, all penalties, interest and costs as aforesaid shall be restored and be in full force and effect for the full period of time since their accrual and as if this act had not been passed.

"Sec. 3. As the expeditious collection of such taxes and lists is necessary for the maintenance of the State institutions and for the support of public schools, an emergency exists within the meaning of section 57 of article 4 of the Constitution of this State and also an emergency exists within the meaning of section 36 of article 4 of the Constitution of this State, and this act shall be in force and take effect from and after its passage and approval by the governor." [1933 Laws, pp. 423-424.]

Plaintiff argues that the foregoing law indicates that the intention of the Legislature was to enact a law to apply only to delinquent taxes from which revenue is derived for the maintenance of State institutions and for the support of public schools. This contention is upon the theory...