St. Francis Levee Dist. v. Dorroh

• Decision Date: 31 December 1926
• Docket Number: No. 26850.,26850.
• Citation: 289 S.W. 925
• Parties: ST. FRANCIS LEVEE DIST. v. DORROH.
• Court: Missouri Supreme Court

289 S.W. 925

ST. FRANCIS LEVEE DIST. v. DORROH.

No. 26850.

Supreme Court of Missouri, Division No. 1.

December 31, 1926.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

Action by the St. Francis Levee District against Charles Dorroh. Judgment for plaintiff and defendant appeals. Reversed and remanded with directions.

C. G. Shepard, of Caruthersville, and Hope & Hope, of St. Louis, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

SEDDON, C.

This is a suit for the recovery of the annual installments of levee taxes (or, more particularly, the statutory penalties accruing by reason of the nonpayment of said annual installments of levee taxes before the several dates of delinquency thereof) for the years 1920 and 1921, levied and assessed against twenty separate and distinct tracts or parcels of land, owned by defendant and appellant, and to enforce the liens thereof, in accordance with the provisions and requirements of chapter 28, art. 9, Revised Statutes of Missouri 1919. In July, 1922, the defendant paid the principal of the annual installments of said taxes then delinquent, but refused to pay the statutory penalties which had accrued thereon after the respective dates of delinquency of said installments. The instant suit was brought to recover the balance or penalties due on said installments of levee taxes.

There is no dispute as to the facts. Plaintiff (respondent) is a public corporation, organized and existing under and by virtue of the provisions of chapter 28, art. 9, of the Revised Statutes of Missouri 1919. Defendant's lands were duly assessed and charged with said levee taxes, and the annual installments thereof. Prior to September 1, 1920, the board of supervisors of plaintiff levee district duly determined, ordered, and levied against defendant's lands, respectively, the amount of the annual installment of the levee taxes for the year 1920, in the aggregate sum of $194.90, and duly certified said annual installment to the collector of revenue of Pemiscot county for collection, and, prior to September 1, 1921, said board of supervisors duly determined, ordered, and levied against defendant's lands, respectively, the amount of the annual installment of the levee taxes for the year 1921, in the aggregate sum of $194.90, and duly certified said annual installment to said collector of revenue for collection. The installment levied and assessed against defendant's lands, respectively, for the year 1920 was unpaid on December 31st of that year and thereupon became delinquent and bore a penalty of 2 per cent. per month from said date of delinquency until paid; and likewise the installment levied and assessed against defendant's lands, respectively, for the year 1921 was unpaid on December 31st of that year, and thereupon became delinquent and bore a penalty of 2 per cent. per month from said date of delinquency until paid. Section 4618, R. S. 1919. On July 28, 1922, defendant paid to the collector of revenue of Pemiscot county the principal of said installments for the years 1920 and 1921 amounting In the aggregate to $389.80, but refused to pay the accrued penalties thereon, which then amounted to the aggregate sum of $101.33, to recover which latter amount this action was brought.

The petition is in conventional form. Defendant, by his answer, denied generally the allegations of the petition, and asserted that said penalties are unreasonable, unjust, and confiscatory, and in contravention of certain designated sections of the Missouri and federal Constitutions. The cause was tried to the court without the aid of a jury. At the close of all the evidence, defendant presented and requested a demurrer to the evidence, which was overruled, whereupon defendant requested certain declarations of law, nine in number, presenting defendant's several theories of defense and raising the several constitutional questions, all of which were refused by the trial court. Thereupon the trial court entered judgment in favor of plaintiff in the following form:

"Now at this day comes the plaintiff herein by attorneys Ward, Reeves, and Oliver, and the defendant in person and by his attorney, C. G. Sheppard, and, both plaintiff and the defendant announcing ready for trial, and each waiving the right of a trial by a jury, this cause is taken up and submitted to the court for trial.

"Wherefore it is ordered by the court that the petition of plaintiff against defendant be taken as confessed, and all and singular the matters contained in the petition are by the plaintiff submitted to the court, and the court, after hearing the testimony, doth find that the defendant is the owner of the real estate described in the petition, and the court doth further find that there are due and unpaid delinquent taxes, including interest thereon, on each tract of the following described real estate, situated in Pemiscot county, Mo., for the years and amounts set opposite each tract, viz.: [Here follows the descriptions of the twenty separate tracts of land and the amount of tax or penalty due upon each separate and distinct tract.]

"Wherefore it is ordered, adjudged, and decreed by the court that the plaintiff have and recover from the said defendant its special judgment for the said sum of $101.36 so found due on the land as aforesaid, with costs of suit, and that this judgment shall draw 10 per cent, interest from the rendition thereof, and further that there be levied and collected as other costs in this case 4 per cent. commission for the collector, and for Ward, Reeves, and Oliver, plaintiff's attorneys, an attorney's fee of 10 per cent. of the judgment herein collected, and that the aforesaid judgment and costs are a special lien and judgment against said tracts of land respectively, as hereinbefore described, and that plaintiff have execution therefor."

The cause involving the construction of the Constitutions of the United States and of this state, defendant was properly allowed an appeal to this court.

I. Appellant urges that the evidence discloses that the collector of revenue of Pemiscot county failed to give the statutory notice to the taxpayers of said county of the time and place when and where he would meet them to receive payment of the installments of the levee taxes, and did dot demand of defendant the payment of said installments of levee taxes. He insists that, inasmuch as plaintiff's action is strictly one to enforce a penalty for nonpayment of the installments when due, and inasmuch as penalties are not favored by the law, therefore every act required by the statute to be done by Plaintiff, or by the officers charged with the collection of the levee taxes, or annual installments thereof, in order to place defendant in default must affirmatively appear from the record in the cause. The collector of Pemiscot county testified:

"Q. Mr. Kersey, as collector of the St. Francis levee district, did you give notice to the taxpayers within the district that you would meet them at certain places at certain times for the purpose of collecting these taxes? A. No, sir; he (defendant) lives here, and it was not necessary.

"Q. You gave no notice to taxpayers owning land in the part of the district embraced in this county, that you would meet them at certain times and at certain places for the purpose of collecting these levee taxes? A. No, sir."

In support of his contention, appellant relies upon the provisions and requirements of sections 4617, 12900, and 12902, R. S. Mo. 1919. The pertinent portions of those sections of the statutes are as follows:

"Sec. 4617. It shall be the duty of the collector of revenue of each county in which lands or other property of any levee district organized under this article are situate, to receive the `levee tax book' each year and he is hereby empowered and it shall be his duty to promptly and faithfully collect the tax therein set out and to exercise all due diligence in so doing. He is further directed and ordered to demand and collect such taxes at the same time that he demands and collects state and county taxes due on the same lands and other properties. * * *"

"Sec. 12900. It shall be the duty of the collectors of revenue of the several counties of the state, immediately after the receipt of the tax books of their respective counties, to give not less than twenty days' notice of the time and place at which they will meet the taxpayers of their respective counties, and collect and receive their taxes; said notice shall be given by posting up at least four written or printed handbills in different parts of each municipal township in said counties, and by publication for two weeks in a newspaper, if one be published in the county, in which he shall notify said inhabitants to meet the collector. at such places in their respective townships as may be named therein, and the number of days (not less than three) that he will remain at each of such places for the purposes aforesaid; and it shall be his duty to attend at the time and place thus appointed, either in person or by deputy, to receive and collect such taxes: Provided, the county court may relieve the collector from visiting any municipal township in his county by an order of record to be made before notice under the provisions of this section is given." (The record herein shows no order of the county court of Pemiscot county of record relieving the collector from an observance of the provisions of the aforesaid section.)

"Sec. 12902. The taxpayers of each township In said counties shall meet such collector at the time and place appointed by such notice, and pay such taxes as may be due against them."

Under section 4618, R. S. 1919, levee taxes, or annual installments thereof, become delinquent after December 31st of the year for which said taxes are levied. Under section 12906, R. S. 1919, state and county taxes become delinquent after the 1st day of January next ensuing after the levy of...