St. Louis Southwestern Ry. Co. v. Crunk

• Decision Date: 11 March 1980
• Docket Number: No. 61172,61172
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, a corporation, Plaintiff-Appellant, v. Thomas CRUNK, Collector of Dunklin County, Missouri, and Jesse Woodard, Successor Collector of Dunklin County, Missouri, Defendants-Respondents.
• Court: Missouri Supreme Court

Page 625

594 S.W.2d 625

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, a corporation, Plaintiff-Appellant, v. Thomas CRUNK, Collector of Dunklin County, Missouri, and Jesse Woodard, Successor Collector of Dunklin

County, Missouri, Defendants-Respondents.

No. 61172.

Supreme Court of Missouri, En Banc.

March 11, 1980.

David E. Blanton, King E. Sidwell, Blanton, Rice, Sickal, Gilmore & Winchester, Sikeston, for appellant.

Stephen R. Sharp, Pros. Atty., Kennett, for respondents.

MORGAN, Judge.

This is an action for recovery of certain taxes and penalties, paid under protest, which was tried to the court under a stipulation of facts. On appeal there is yet no dispute as to the facts, and the stipulation thereof has been amended only to include references to the judgment as entered.

We quote therefrom as follows:

Dunklin County through respondent Thomas Crunk, Collector, mailed to appellant, St. Louis Southwestern Railway Company at Tyler, Texas, a notice of taxes due for the year 1975 in the sum of $221,647.10. Appellant mailed to respondent its check in the sum of $221,647.10, together with a notice of protest concerning an excessive school tax levy which is not at issue before the Court on this appeal, from its office in Tyler, Texas. Payment was deposited in the United States mail service, duly stamped and post-marked December 30, 1975, addressed to the Tax Collector of Dunklin County, Treasurer Ex Officio Collector, Dunklin County Courthouse, Kennett, Missouri 63857.

Respondent, Collector of Dunklin County, Missouri, made regular mail calls at the United States Post Office in Kennett, Missouri, to pick up mail addressed to him or the Collector at such times as his office as Collector was open until January 5, 1976, on which date the above referred to mail and tendered tax payment and notice of protest were received by him as Collector.

The tendered check and notice of protest were thereafter returned to appellant with the explanation by the respondent that the tendered payment was late and would not be accepted unless the late penalty in the sum of $4,432.94 was paid in addition to the tax claimed to be due by the appellant.

On January 22, 1976, appellant delivered to the respondent the amount of taxes claimed by the respondent to be due by the appellant in the sum of $221,647.10 plus $2,216.47 alleged interest and $2,216.47 alleged commission, at which time notice of protest was delivered to the respondent to the alleged excess school taxes (not at issue in this appeal) and the notice of protest relative to the interest payment and the commission payment in the sum of $4,432.94.

This proceeding for the recovery of the sums paid under protest was instituted in the Circuit Court of Dunklin County, Missouri, within ninety days after January 1, 1976. The Court without jury considered the evidence on a stipulation of facts and held that the payment of the tax was not timely and that the appellant was subject to the penalty.

The Court further entered judgment for appellant concerning the $2,894.80 excessive school tax which is not at issue in this appeal except that it is pertinent as the basis of calculating the penalty, if any, which is the subject of this appeal. From this adverse ruling that the payment of the tax was not timely and that penalty was assessed based upon the excessive school tax, the appellant takes appeal.

It should be noted that the petition filed by appellant (taxpayer) sought refunds based on two separate grounds: (1) that there had been no readjustment ¹ of the prior levy when the county assessment had increased by at least ten per cent as provided in § 137.073, RSMo; and (2) that payment of the taxes actually due had been timely and that no penalties should have attached.

The trial court found for the taxpayer on point one and ordered a refund of "the sum of $2,894.80, representing taxes paid under protest (because there had been no readjustment), together with such interest as may have accrued as a result of the payment having been made to the Collector, if the same has been invested." The record reflects a refund being made and "receipt of the sum of $3,343.46" by the taxpayer. The latter suggests that the readjustment problem "is not at issue in this appeal except that it is pertinent as the basis of calculating the penalty, if any, which is the subject of this appeal."

Next, we consider whether or not payment of the property taxes actually due for 1975 was timely when the same was mailed (and postmarked) by the taxpayer on December 30, 1975, and received by the tax collector on January 5, 1976. The answer to the question is obviously "No" if the statutory law of this state is to be controlling. Chapter 151, RSMo, is titled "Taxation of Railroads" and is devoted solely to that subject. We quote from some of the sections thereof:

151.010 All railroads now constructed, in course of construction, or which shall hereafter be constructed in this state, and all real property, tangible personal property . . . owned, hired or leased by any railroad company or corporation in this state, shall be subject to taxation, and taxes levied on real property, and tangible personal property, shall be levied in the manner herein set forth . . . .

151.190 It shall be the duty of the county clerk as soon as the tax book is completed, to make out and certify to the secretary of the proper railroad company, or the officer making the return thereof, a statement of taxes levied on the property of the railroad company in his county . . . .

151.200 All taxes of whatever description, charged against any railroad company, according to the provisions of this chapter . . . shall be due and payable to the county on the first day of November of the year for which the same may be levied and charged as herein provided. (Emphasis added.)

151.210 All property owned or held by any railroad company in any county in this state shall be liable for the taxes assessed and levied . . . together with all dues, penalties and costs accruing thereon, are hereby declared a prior lien . . . and become a fixed encumbrance as soon as the amount of the taxes is determined by assessment and levy.

151.220 If any railroad company shall fail to pay to the county collector of the proper county any taxes levied . . . on or before the thirty-first day of December next after the same shall have been assessed and levied, the same shall then be, after that date, known and treated as delinquent railroad taxes ; and the...