State ex rel. Crutcher v. Koeln

• Citation: 61 S.W.2d 750,332 Mo. 1229
• Decision Date: 16 June 1933
• Docket Number: 33128
• Parties: State of Missouri at the relation of Eugene L. Crutcher, Relator, v. Edmond Koeln, as Collector of the City of St. Louis
• Court: United States State Supreme Court of Missouri

61 S.W.2d 750

332 Mo. 1229

State of Missouri at the relation of Eugene L. Crutcher, Relator, v. Edmond Koeln, as Collector of the City of St. Louis

No. 33128

Supreme Court of Missouri

June 16, 1933

Alternative writ made peremptory.

McDonald & Just for relator; Charles M. Hay, J. Wesley McAfee and M. P. Phillips of counsel.

(1) The act on which relator relies is state-wide in its expressed application; clear in its statement of the remedial relief it provides; plain in its declaration of respondent's duty in the premises, and the existence of the emergencies stated to give it immediate effect are matters for judicial notice. State ex rel. Pollock v. Becker, 289 Mo. 683. (2) The validity of No. 80 establishes the invalidity of all charges of the Comptroller of the City of St. Louis and other penalty charges for which respondent pleads he is personally liable. (3) An act withholding from all collectors in the State a portion of the fees allowed to them under prior law does not offend against Article IX, Section 12, of the Constitution providing "that the General Assembly shall by law uniform in its operation, provide for and regulate the fees of all county officers." Sec. 9935, R. S. 1929; Seaboard Natl. Bank v. Woester, 176 Mo. 49; Sec 9914, R. S. 1929; State ex rel. v. Gordon, 245 Mo 27; Sanderson v. Pike County, 195 Mo. 605; State ex rel. v. Brown, 146 Mo. 406; State ex rel. v McCracken, 60 Mo.App. 656. (4) The command of the act being expressly directed to all "the collectors of revenue of the counties and cities of the state," its purposes and the public need of its benefits being equally common to every taxing unit in the State, and both its adoption and approval being later in time than Senate Bills Nos. 110 and 115, it must, under accepted rule of statutory construction, be declared the law of the entire State, superseding all prior conflicting acts, both special and general. State ex rel. v. Crawford, 303 Mo. 652, 262 S.W. 341; State ex rel. v. Heidorn, 74 Mo. 412; Senate Bills Nos. 110 and 115; Bowers v. Smith, 111 Mo. 56; 25 R. C. L. 1013; 59 C. J. 943; Schott v. Continental Ins. Underwriters, 326 Mo. 92, 31 S.W.2d 11. (5) The act does not contravene Article X, Sections 3 and 4 of the Constitution, in that it does not affect the public purpose of any tax, the subjects or values of the things taxed, or the levy and collection of taxes by general laws. It applies solely to penalties, interest and costs that are not a party of any tax levy. Livesay v. De Armond, 284 P. 186, 68 A. L. R. 422; Jones v. Williams, 45 S.W.2d 130, 79 A. L. R. 983. (6) The act does not release any "indebtedness, liability or obligation" to the State, county or municipal corporation, within the intendment of Article IV, Section 51 of the Constitution, because: (a) Only penalties imposed for failure to pay a tax on time are affected by it. (b) Penalties arbitrarily imposed by the sovereign are not within this constitutional limitation. (c) Fines, penalties and forfeitures may be remitted by general though not by local or special law (Art. IV, Sec. 53, Subd. 22). Seaboard National Bank v. Woester, 176 Mo. 49; Cooley on Taxation (4 Ed.) sec. 1274; State ex rel. v. Superior Court, 93 Wash. 433, 161 P. 77; Jones v. Williams, 45 S.W.2d 130, 79 A. L. R. 983; Livesay v. De Armond, 284 P. 186, 68 A. L. R. 422; Ludlow-Saylor Wire Co. v. Woolbrinck, 275 Mo. 339, 205 S.W. 196; 12 C. J. 973, sec. 558; State v. Morris, 10 Wheat. 246, 6 L.Ed. 314; State of Maryland v. Railroad Co., 3 How. 534, 11 L.Ed. 714; Railroad Co. v. Wells, 65 Ohio St. 313, 62 N.E. 332, 58 L. R. A. 651; Cushman v. Hale, 68 Vt. 444, 35 A. 382; Atwood v. Buckingham, 78 Conn. 423, 62 A. 616; Anderson v. Byrnes, 122 Cal. 272, 54 P. 821. (7) The act, in relieving delinquent taxpayers of purely punitive burdens of legislative creation, impairs no vested right and, therefore, is not retrospective in its operations in violation of Article II, Section 15, of the Constitution. (Cases cited under 6 above.)

Charles J. Dolan for respondent.

(1) The Constitution of Missouri prohibits the General Assembly from passing any law to release or extinguish, or authorizing the releasing or extinguishing in whole or in part any indebtedness, liability or obligation of any corporation or individual to this State or to any county or other municipal corporation therein. Const. of Mo., Art. 4, Sec. 51. (2) A tax that has been duly levied on property in this State is a liability or obligation within the meaning of the foregoing provision of the Constitution of Missouri. Graham Paper Co. v. Gehner, 59 S.W.2d 52; Jasper Land & Improvement Co. v. Kansas City, 293 Mo. 678; State ex rel. v. Snyder, 139 Mo. 552. (3) Section 51 of Article 4 of the Constitution of Missouri forbids the enactment of laws intended to relieve taxpayers of any part of their obligation to the State, or to any county or other municipal corporation therein. Graham Paper Co. v. Gehner, supra. (4) Under the laws of Missouri the penalty or interest added to a delinquent tax is an additional tax. R. S. 1929, sec. 9914; State ex rel. v. Fendorf, 296 S.W. 789. (5) The lien of the State of Missouri on each tract and lot of real estate for the taxes due thereon extends to the interest and costs accrued on delinquent taxes. R. S. 1929, sec. 9937. (6) Under the laws of Missouri the penalty or interest added to a delinqunet tax is as much a liability or obligation of the owner of the property taxed as the original tax. Authorities cited under 4, 5. (7) The act approved April 13, 1933, known as Senate Bill 80 is in conflict with the aforesaid provision of the Constitution and is therefore null and void. Sanderson v. Bateman, 78 Mont. 235, 253 P. 1100; City of Louisville v. Ry. Co., 63 S.W. 14; Louisville Car Wheel & Ry. Supply Co. v. Louisville, 146 Ky. 573, 142 S.W. 1046. (8) The act approved April 13, 1933, known as Senate Bill 80 should be construed so as to allow respondent his commission of two per cent for the collection of delinquent taxes so as to avoid conflict with Section 12 of Article IX of the Constitution of Missouri. Pitman v. Drabelle, 267 Mo. 84; 12 C. J. p. 787, sec. 220. (9) The act approved April 13, 1933, known as Senate Bill 80, does not expressly remit respondent's commission of two per cent for the collection of delinquent taxes. It does not contain the usual general repealing clause, repealing all acts and parts of acts inconsistent therewith. The rule that repeals by implication are not favored is especially applicable in the absence of such general repealing clause. Hurlburt v. Bush, 284 Mo. 405. (10) It may be presumed that the Legislature did not intend that respondent should be required to perform the functions of his office without compensation. Const. of Mo., Art. IX, Sec. 12. (11) Assuming that the act known as Senate Bill No. 80 is a valid law, it is not applicable to the city of St. Louis, in so far as it relates to delinquent city and school taxes, for the reason that the collection of such delinquent taxes in the city of St. Louis is covered by two special laws which were enacted at the same Session of the Legislature as that which enacted the act known as Senate Bill No. 80. A general law passed subsequently to a special law does not repeal the special law. The special law should be construed as an exception to the general law. State ex rel. v. Crawford, 303 Mo. 661; Folk v. St. Louis, 250 Mo. 136; Hurlburt, etc. v. Bush, etc., 284 Mo. 405; State ex rel. Hyde v. Buder, 315 Mo. 797; 59 C. J. pp. 930, 932, 934.

OPINION

Hays, J.

This is a petition for mandamus, brought by the relator, a delinquent taxpayer owning real estate in the city of St. Louis, to compel respondent, the collector of revenue of that city, to accept under the direction of an act of the Fifty-seventh General Assembly, known as Senate Bill No. 80 (hereinafter referred to for convenience as No. 80), approved April 13, 1933, and in effect on that day under its emergency clause, the original amount of taxes assessed against the relator's real estate for the years 1930, 1931 and 1932 and relieved of all penalties, interest and costs on each such assessment.

Respondent entered his appearance; service of alternative writ was waived by stipulation; respondent's return to the petition as a writ was filed; and relator moved for judgment on the pleadings.

The substance of respondent's return is the following: That, having receipted to the comptroller of said city for the full amount of relator's delinquent tax bills, issued by the comptroller upon the occurrence of the delinquencies, respectively, showing (1) the original assessments, (2) certain charges of the comptroller and (3) interest on such assessment at the rate of one per cent per month for the three months ending March 31, after the respective delinquencies attached; that respondent has been charged by the comptroller with the amount of said delinquent bills, and has been charged with interest at the rate of one per cent per month on each of said bills from March 31 of the year in which the same became delinquent, and with two per cent of the original amount of such assessments, as respondent's commission thereon; and that respondent will be personally responsible for each of these charges and items and will be liable also for the penalty of Section 9928 of the Revised Statutes of Missouri of 1929, if he accepts relator's tender.

Further that No. 80, on which relator relies, is not a valid law of the State, and, if valid, does not apply to said city, and if it does so apply it does not affect his two per cent commission on the bills, because it violates several provisions of our State Constitution, as hereinafter stated, and because, if valid, it cannot operate on delinquent city and school taxes in said...