St. Francis Levee District of Missouri v. Dorroh

• Decision Date: 31 December 1926
• Docket Number: 26850
• Parties: St. Francis Levee District of Missouri v. Charles Dorroh, Appellant
• Court: Missouri Supreme Court

289 S.W. 925

316 Mo. 398

St. Francis Levee District of Missouri v. Charles Dorroh, Appellant

No. 26850

Supreme Court of Missouri

December 31, 1926

Appeal from Pemiscot Circuit Court; Hon. Henry C. Riley Judge.

Reversed and remanded (with directions).

C. G Shepard and Hope & Hope for appellant.

(1) Plaintiff's cause of action is strictly one to enforce a penalty; therefore, everything necessary to be done by plaintiff in order to place the defendant in default must affirmatively appear from the record in the case. Plaintiff in its petition stated "that the Collector of the Revenue, within the time and in the manner prescribed by law, did give notice to the taxpayers of said county of the time and place and when and where he would meet them to receive their taxes, and, in accordance therewith, attended at such times and places and thereafter did demand of the defendant the payment of said installment tax," as provided by Sec. 12900, R. S. 1919. The evidence conclusively shows that neither the statute nor the allegations in plaintiff's petition were complied with. 30 Cyc. 1358; Nat. Lumber Co. v. Burrows, 284 S.W. 153; Trimmer v. Rennien, 141 P. 784; Miller v. State, 173 P. 67; City Nat. Bank v. Gayle, 155 P. 552. (2) The collector is "directed and ordered" by the statute relating to levee taxes (Sec. 4617, R. S. 1919) "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 properties." The collector not only failed to give the notice required by Section 12900, but notwithstanding the imperative mandate of the levee tax law to demand the taxes, he made no demand of any sort upon defendant for payment of the alleged levee taxes. Such requirements in a tax statute are conditions precedent which must be fully and strictly complied with before the taxpayer can be assessed with any penalty. 37 Cyc. p. 1544, c and 4; 3 Cooley on Taxation (4 Ed.) secs. 1273, 1393, 1396; 2 Cooley on Taxation (4 Ed.) sec. 511; Paving Co. v. Peck, 186 Mo. 506; Lagroue v. Rains, 48 Mo. 536; Perkinson v. Schnaake, 108 Mo.App. 255; St. Joseph v. Forsee, 110 Mo.App. 237; Stifel v. McManus, 74 Mo.App. 558; Early v. Doe, 16 How. (U.S.) 610, 14 L.Ed. 1079; Chanton v. Spear, 22 Vt. 388. (3) In actions to recover penalties the pleadings are construed with the same strictness that indictments are. 30 Cyc. 1352. (4) The amount of the penalty that should be assessed against property owners for failure to timely pay their taxes is within the discretion of the Legislature, within reasonable limitations. 37 Cyc. 1542. (5) Penalty, when assessed against a property owner for failure to promptly pay his taxes, is synonymous with "fine," and the declaration in the Constitution that "fines" shall not be excessive makes it a question for the court to decide whether, under the facts of the particular case, the penalty sought to be enforced is excessive and violative of this provision of the Constitution. Sec. 25, Art. 2, Mo. Constitution; State v. Ry. Co., 97 S.W. 78. (6) The judgment as entered by the court calls for interest thereon at the rate of ten per cent per annum. This is error because as a general rule penalties do not bear interest. 3 Cooley on Taxation (4 Ed.) p. 2541; State ex rel. v. Howe Scale Co., 203 Mo.App. 355; Cumberland Ry. Co. v. State, 92 Mich. 668. If interest were allowable on such a judgment, it should never exceed six per cent per annum. Granite Paving Co. v. Parkview Inv. Co., 168 Mo.App. 468; St. Louis v. Allen, 53 Mo. 44; St. Joseph v. Gibson, 110 Mo.App. 243. (7) The judgment is further erroneous in the allowance of a fee for plaintiff's attorneys, because there is no authority in law for such an attorney's fee. The suit is for the two per cent per month penalty; no taxes are sued for. It is only for collecting the taxes that an attorney's fee can be allowed and taxed as costs. Sec. 4620, R. S. 1919. The attorney's fee is an additional penalty and not recoverable in the absence of plain statutory provision therefor. It is governed by the rule that "penalties are never extended by implication. They must be expressly imposed or they cannot be enforced." Elliott v. East Pa. Co., 99 U.S. 573. (8) For the same reasons the allowance in the judgment of $ 4.05 to the county collector is error. (9) The judgment is further erroneous on its face in that it adjudges the aggregate amount of the two per cent penalties for both the years 1920 and 1921 to be a special lien against each of the twenty different tracts of land. St. Louis v. Allen, 53 Mo. 48. (10) Defendant's declaration declaring that the penalties assessed in the legislative enactment creating the plaintiff district of two per cent per month on unpaid taxes due the district is unreasonable, unjust and confiscatory, and plaintiff should not be permitted to collect the penalty, and that "the finding of the court should be for the defendant," should have been given. The assessment against the defendant's land for the benefit of the plaintiff district is not, in fact, a tax, but is a betterment assessment, and the penalty of two per cent per month, arbitrarily assessed by the Legislature against all delinquent landowners within the district, is harsh in the extreme, of doubtful propriety, even more rigorous than the penalty assessed against taxpayers delinquent in their state and county taxes. (11) No constitutional provision authorizes the penalty assessed by the Legislature in behalf of the levee district. It leaves nothing to the judgment of the officers of the district, or to the people forming the district, but arbitrarily says there must be collected on all delinquent assessments two per cent per month. There are times when such a penalty is confiscation.

Ward & Reeves for respondent.

(1) There is no merit in appellant's contention that the collector did not give notice to the taxpayers of the county of the time and the place when and where he would meet them to receive their taxes. Such notice is required by the general revenue laws of the State for the collection of the State and county taxes, and has no application in the collection of levee taxes. But if the collector of revenue did fail to perform his duty in that respect, the defendant could not take advantage of that fact, since he knew that his taxes were due. Secs. 4617, 4618, R. S. 1919. (2) The judgment in this case may be irregular, but the defendant made no objection to the form of the judgment in his motion for new trial, neither did he file a motion in arrest of judgment. If the judgment is irregular, or if it provides for ten per cent interest, when as a matter of law it should only be six per cent interest, then this court will modify the judgment without reversing and remanding the case. Booneville ex rel. v. Stephens, 238 Mo. 359. The judgment for attorney's fee was proper. Sec. 4621, R. S. 1919; Drainage Dist. v. Bates County, 216 S.W. 949. (3) The penalty of two per cent per month on delinquent levee taxes prescribed by Sec. 4618, R. S. 1919, is not unconstitutional. Seaboard Nat. Bank v. Woester, 176 Mo. 62; W. U. Tel. Co. v. Indiana, 165 U.S. 304; Bankers Trust Co. v. Blodgett, 260 U.S. 647; State ex rel. v. Ry. Co., 178 S.W. 444. (4) The amount of penalty to be assessed against a delinquent taxpayer is discretionary with the Legislature. 37 Cyc. 1542; W. U. Tel. Co. v. Indiana, 165 U.S. 304. (5) This act should be liberally construed. Section 4650, R. S. 1919; Drainage Dist. v. Bates County, 216 S.W. 949.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

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 non-payment 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, Article 9, Revised Statutes 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, Article 9, Revised Statutes 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 two per cent per month from said date of delinquency until paid; and likewise the installment levied and assessed against defendant's lands,...