State ex rel. and to Use of Berra v. Sestric

• Decision Date: 13 March 1942
• Docket Number: 37812
• Citation: 159 S.W.2d 786,349 Mo. 182
• Parties: State of Missouri at the relation and to the use of Charles Berra, Appellant, v. Anton Sestric, Justice of the Peace, Second District, City of St. Louis, and Walter Graeser, Constable for and within said district
• Court: Missouri Supreme Court

159 S.W.2d 786

349 Mo. 182

State of Missouri at the relation and to the use of Charles Berra, Appellant, v. Anton Sestric, Justice of the Peace, Second District, City of St. Louis, and Walter Graeser, Constable for and within said district

No. 37812

Supreme Court of Missouri

March 13, 1942

Appeal from Circuit Court of City of St. Louis; Hon. Joseph Ward, Judge.

Affirmed.

George A. McDonald for appellant.

(1) The Sales Tax Acts of 1935 and 1937 are general revenue laws. State ex rel. v. Smith, 111 S.W.2d 167; same 114 S.W.2d 1067; same 338 Mo. 409. The State of Missouri is plaintiff; the Attorney General and the State Auditor are State officers. Art. 6, Sec. 12, Mo. Constitution. (2) The court could not render any judgment on the piece of paper and dismiss its alternative writ until a return had been made thereto in obedience to the command in that writ; except the compelling of the making of a return and until that return is made there is nothing before the court to quash. 11 C. J., p 165, par. 250, p. 183, par. 293A; In re Breck, 252 Mo. 302, citing State ex rel. v. Patterson, 229 Mo 364. (3) The application for the writ is not a pleading under any statute; the return of the respondent in the form of his record and defenses, if any, is the first actual pleading and the court starts from there. The defense of "Remedy by Appeal" is not applicable in cases where the jurisdiction of the court is attacked. State ex rel. v Franklin, 220 Mo.App. 232; State ex rel. v. Williams, 70 Mo.App. 238; House v. Clinton, 67 Mo. 522; State ex rel. v. Pfeffle, 220 Mo.App. 676; State ex rel. v. Goodrich, 257 Mo. 40. (4) The Sales Tax Acts of 1935 and 1937, the laws of Missouri, the Constitution of Missouri, do not provide for any employee of the State Auditor, who is on the monthly payroll under the guise of clerk or field representative, to act in the dual capacity of "attorney;" the piece of paper filed does not point out this authority. State ex rel. v. Hackman, 305 Mo. 342; same 276 Mo. l. c. 116. (5) There is no specific provision in the Sales Tax Acts of 1935, 1937, 1939, 1941, for suits to collect tax in the justice court. The sections provide for attachments, and in the venue sections immediately following, say that when attachments are within jurisdictional amount of justice, may be brought from that court. The State of Missouri has a well developed code on attachments; the provisions of Chapter 12, R. S. 1939, designate the grounds for affidavit; the same chapter provides in Section 2830 that they are governed by "provisions of law" governing attachments in a court of record. Tax liens are not among those present for grounds of attachment in the justice court; they are not mentioned in Chapter 8, Article 1, R. S. 1939, in civil procedure. The suits filed are against the wrong parties; the purchaser is the one liable for the tax; there can be no delinquency as the tax is against each individual sale; if collected and not remitted the seller becomes an embezzler of the State's money. The Supreme Court has held that the purchaser and not the seller is liable. Sec. 29, Acts 1935; Sec. 30, Acts 1937; Chap. 12, R. S. 1939, for justices of the peace; Chap. 8, R. S. 1939, for courts of record; State ex rel. v. Smith, 111 S.W.2d 167; same 114 S.W.2d 1017, same 338 Mo. 409. (6) Section 19 of the Acts of 1935, Section 20, Acts 1937, provide for an assessment in case of failure, refusal or neglect to make a monthly return; Section 25, Acts 1935, Section 27, Acts 1937, cover fraud and evasion; Section 27, Acts 1935, Section 29, Acts 1937, provide for a lien. A seller could collect the tax, keep the money and be exempt from arrest for embezzlement under these ambiguous sections, in view of the rulings cited heretofore regarding liability for the tax. The Acts of 1933-34, 1935, 1937, 1939, 1941, provide for the writ of certiorari in all cases of dispute with the State Auditor in his administration of the Sales Tax Act. The only disputes that could arise would be under the statutes or sections quoted above. Acts 1935, sec. 37; Acts 1937, sec. 38; R. S. 1939, sec. 11445.

Roy McKittrick, Attorney General, S. V. Medling and Tyre W. Burton, Assistant Attorneys General, for respondents.

(1) The circuit court had discretionary power to enter order quashing the writ. State ex rel. Underwood v. Fraker, 168 Mo. 445, 68 S.W. 576; State ex rel. Powell v. County Court, 237 Mo. 460, 141 S.W. 614. (2) Writ of certiorari should be issued where the lower court acts in excess of its jurisdiction or where no remedy by appeal of right of order exists. State ex rel. Lunsford v. Landon, 265 S.W. 529, 304 Mo. 654; School District of Kansas City v. Smith, 342 Mo. 21, 111 S.W.2d 167; Sec. 11439, R. S. 1939. (3) The writ of certiorari cannot be substituted for appeal or a writ of error. In re Breck, 158 S.W. 843, 252 Mo. 302. (4) The rules of procedure in trial courts rests in the discretion of that court. Kuh v. Garvin, 125 Mo. 547, 28 S.W. 847; Stimson v. Cathedral Mining & Smelting Co., 264 Mo. 190, 174 S.W. 420. (5) Certiorari may be resorted to under the Sales Tax Act. Sec. 11445, R. S. 1939; Wymore v. Markway, 89 S.W.2d 9, 338 Mo. 46; State ex rel. Ford v. Gehner, 29 S.W.2d 1, 325 Mo. 24; Moss Tie Co. v. Allen, 8 S.W.2d 1038; State ex rel. Gracy v. Bank of Neosho, 25 S.W. 372, 120 Mo. 161; State ex rel. v. Dungan, 177 S.W. 604, 265 Mo. 353; Hughes v. State Board of Health, 137 S.W.2d 523, 345 Mo. 995.

OPINION

Leedy, J.

This is a proceeding in certiorari, commenced in the Circuit Court of the City of St. Louis, whereby relator (appellant) seeks to quash a judgment rendered against him by respondent Sestric, a Justice of the Peace, in an action brought by the State of Missouri to recover delinquent sales taxes, penalty and interest. To avoid confusion, we will refer to the parties as they were styled in the trial court. Before return was made, respondents filed a motion to quash the writ on the ground that relator had an adequate remedy by appeal. This motion was sustained, the writ quashed, and relator appealed. Some of the questions preserved for review involve the construction of the revenue laws, and for that reason jurisdiction is in this court.

There is nothing in the first assignment asserting the court could not quash its writ prior to the coming in of the return, as it will be seen that the practice here complained of has the sanction of numerous cases. See State ex rel. Underwood v. Fraker, 168 Mo. 445, 68 S.W. 576, holding, as stated in the syllabus, "A writ of certiorari issued by the circuit court may be quashed by such court, on motion, before return is made." In State ex rel. Powell v. Shocklee et al., 237 Mo. 460, 141 S.W. 614, a banc case, it was said, "As the application for a writ of certiorari is made ex parte, and may be granted by one member of the court, no good reason is perceived why the question as to whether the writ was improvidently granted may not be inquired into when the respondents are brought into court and for the first time have an opportunity to raise that issue, as is the recognized practice in the case of other original proceedings. The weight of authority favors the right of respondents to attack by proper motion the regularity of the issuance of the writ." [Citing State ex rel. Underwood v. Fraker, supra; 6 Cyc. 813; 4 Ency. Pleading & Practice.] See, also, State ex rel. Gardner v. Harris, 286 Mo. 262, 227 S.W. 818. In the very recent case of State ex rel. Callahan v. Hess, 348 Mo. 388, 153 S.W.2d 713 (certiorari, wherein the writ was quashed on motion) the following from 4 Houts Mo. Pl. & Pr., sec. 1400, p. 687, was quoted with approval: "'A motion to dismiss or quash the writ, being in the nature of a demurrer, may be filed and granted before the return has been made to the writ. A motion to dismiss or quash the writ for want of jurisdiction or right to relief prayed by the petition is in effect a demurrer, confessing all facts well pleaded, but searching the whole record and attacking the first fatal defect.'"

Coming now to the merits of the case, it is unnecessary to set out the allegations upon which the writ issued. From them it appears that the action was brought by the State Auditor under what is now Section 11437, R. S. '39, for the recovery of delinquent sales taxes, together with statutory penalties and interest, which relator defended, and resulted in the rendition of a judgment against him for a sum within the monetary jurisdiction of the justice.

All references to sections of the statutes are to the Revised Statutes of 1939. Section 11437 provides, among other things, that "any tax due and unpaid under the provisions of this Article shall constitute a debt due the State," and authorizes the Auditor, in the name of the state, to recover the amount thereof, with penalty and interest, "by an action at law or other appropriate judicial proceedings." It further provides that in "every such action the writ of attachment may issue" and that no bond in attachment shall be required; that "in every such suit the process, pleadings and practice shall be except as in this Article otherwise specifically provided, according to the provisions of the Code of Civil Procedure." This section does not purport to confer jurisdiction of the suits therein authorized upon justices of the peace, circuit courts, or any other court. Such suits are, therefore, to be brought in any court of competent jurisdiction.

The next section, 11438, prescribes the venue in such actions and also provides, "If such suit be by attachment it shall be brought in the county wherein the property attached is located, and when the amount of tax involved does not exceed the jurisdiction of justice courts within such county, the attachment suit may be...