State ex rel. Davidson v. Railway Co., 32798.

• Decision Date: 06 December 1933
• Docket Number: No. 32798.,32798.
• Citation: 66 S.W.2d 149
• Parties: STATE EX REL. A.L. DAVIDSON, Collector, etc., v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

66 S.W.2d 149

STATE EX REL. A.L. DAVIDSON, Collector, etc., v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.

No. 32798.

Supreme Court of Missouri.

Division One, December 6, 1933.

Appeal from Dunklin Circuit Court. — Hon. John A. McAnally, Judge.

REVERSED.

E.T. Miller and Ward & Reeves for appellant.

(1) Under the revenue laws of Missouri, railroad corporations are treated separately and apart from other taxable property and the statutes set up a separate and exclusive procedure for the assessment and collection of taxes against railroad corporations. Art. 13, Ch. 59, R.S. 1929, Secs. 10011-10051. (2) Section 10044 of this article fixes the compensation of the collectors for service rendered in collecting railroad taxes, and is applicable to services performed by treasurers and ex officio collectors in counties under township organization, except to the extent that this section may be modified by Section 12316, Revised Statutes 1929. The latter section does not authorize the allowance to the plaintiff of five per cent for the collection of railroad taxes, to be paid by the railroad, even though they are delinquent. As to collection of delinquent railroad taxes, plaintiff, as treasurer and ex officio collector, is governed either by Section 10044 allowing him one per cent of the taxes collected, where no seizure of property or suit is filed, or by the expressed provisions of said Section 12316 allowing him two per cent, payable out of the amount collected as fixed for collection of back taxes, including railroad back taxes. In this case no suit was filed for these taxes and there was no seizure of the defendant's property to enforce payment thereof. The plaintiff therefore was not authorized to collect from the defendant a commission, but all compensation going to plaintiff was payable out of the taxes and penalty collected by him. Secs. 10044, 12316, R.S. 1929. (3) The corporation taxes, back taxes, licenses, merchants' tax and tax on railroads specifically referred to in said Section 12316, upon which the collector retains a commission of two per cent, are distinguished from the following clause of said section relating to such collector being allowed a five per cent commission on delinquent taxes to be paid by the taxpayer, as the latter clause referring to the five per cent commission is applicable only to delinquent taxes which are returned uncollected by the various township collectors in their settlements with the county courts and which said delinquent taxes are made up into a delinquent tax book which is then turned over to the treasurer as ex officio collector and for collecting those taxes he gets five per cent, which must be paid by the taxpayer. The railroad taxes specifically referred to in Section 12316 are never placed upon the delinquent tax book because before those taxes become due they are made up into a railroad tax book and placed in the hands of the county treasurer as ex officio collector, and said book remains in his hands until such taxes are collected. Secs. 10030, 10032, 12312, R.S. 1929; Art. 12, Ch. 86, R.S. 1929. (4) In construing these statutes the court must bear in mind that the levying of taxes, penalties, and commissions, must be clearly authorized by statute and such statutes are strictly construed against the taxing power. State ex rel. v. Gehner, 325 Mo. 24, 27 S.W. (2d) 1; State ex rel. v. Baker, 316 Mo. 853, 293 S.W. 399; State ex rel. v. Buder, 308 Mo. 253, 271 S.W. 770; State ex rel. v. Hyde, 292 Mo. 342, 241 S.W. 396. (a) Statutes in apparent conflict must be harmonized to give effect to whole, if possible, and special statutes (such as railroad taxation statutes) take precedence over general statutes. Coates Realty Co. v. Ry. Co., 328 Mo. 1118, 43 S.W. (2d) 817; Kenney v. Hoerr, 324 Mo. 368, 23 S.W. (2d) 96; State ex rel. v. Davis, 314 Mo. 373, 284 S.W. 464; State ex inf. v. Koln, 270 Mo. 174, 192 S.W. 748; State ex inf. v. Schuster, 285 Mo. 399, 227 S.W. 60; Tevis v. Foley, 325 Mo. 1050, 30 S.W. (2d) 68; State ex inf. v. Imhoff, 291 Mo. 603, 238 S.W. 122.

George Smith for respondent.

(1) Article XIII of Chapter 59, Revised Statutes 1929, governs the assessment and collection of taxes in this State generally. But these sections do not apply to this case because these laws cannot apply to a situation existing here, that is, where railroad taxes become delinquent in the county where township organization is in operation. (2) Section 10044, Revised Statutes 1929, fixes the compensation of collectors of the revenue for services rendered in counties not having township organization and Section 12316, Revised Statutes 1929, fixes the compensation of ex officio collectors in counties having township organization. Secs. 10044, 12316, R.S. 1929. (3) Section 10035, Revised Statutes 1929, says in speaking of railroad taxes that if they are not paid on or before January 1st next after they have been assessed and levied the same shall then be on and after that date known and treated as "delinquent" taxes. Therefore, railroad taxes can become "delinquent" if there is any difference between "back" taxes and "delinquent" taxes. But there is no difference or distinction between the word "delinquent" taxes and "back" taxes. State ex rel. White v. Fendorf, 296 S.W. 787; State ex rel. Dowell v. Renshaw, 166 Mo. 682.

GANTT, J.

Action to recover the balance of a commission alleged to be due plaintiff as ex officio County Collector of Dunklin County on the collection of taxes assessed against defendant in said county for the year 1931.

In substance, the petition alleged that Dunklin County was under township organization; that defendant owed $27,443.39 taxes assessed for the year 1931; that said taxes remained unpaid on January 1, 1932, and became delinquent; that in May, 1932, defendant paid to plaintiff said taxes with accrued penalty thereon and $274.43 as commission due plaintiff and that said payments were accepted, subject to plaintiff's claim for an additional amount as commission.

The petition further alleged that plaintiff was entitled to five per cent commission on the taxes and interest paid, which amounted to $1430.49; that on crediting defendant with $274.43 paid as commission there remained due plaintiff $1156.06, for which he prayed judgment.

The answer admitted all the allegations of the petition, except the claim of plaintiff for $1156.06 as additional commission for collecting said taxes. It further alleged that defendant paid all the taxes, penalties and commissions due on said assessment againt defendant.

Thereupon plaintiff filed a motion for judgment on the pleadings. The motion was sustained and judgment entered for the $1156.06. Defendant appealed.

[1] The compensation of the treasurers as ex officio county collectors for collecting taxes assessed against railroads in counties under township organization is fixed by Section 12316, in Chapter 86, Revised Statutes 1929, providing for township organization. The pertinent part of said section follows:

"... the county collector (treasurer) for collecting and paying over the same (taxes) shall be allowed a commission of two per cent on all corporation taxes, back taxes, licenses, merchants' tax and tax on railroads, and five per cent on all delinquent taxes, which shall be taxed as costs against such delinquents and collected as other taxes: Provided, he shall receive nothing for paying over money to his successor in office."

The word "commission" is without technical meaning. As used in this section it means a compensation of two per cent payable from the tax collected. Of course, the Legislature would not charge the two per cent against the taxpayer if the tax was paid before it became delinquent. The five per cent is expressly charged against the delinquent. The meaning of other provisions of the section is not so easily determined. For instance, the section is ambiguous from the use of the words "back taxes" in the first clause, and the words "delinquent taxes" in the second clause of the above part of the section.

Plaintiff argues that "back taxes" and "delinquent taxes" have the same meaning, citing State ex rel. White v. Fendorf, 317 Mo. 579, 296 S.W. 787. In that case we held that said words in Articles VIII and IX, Chapter 59, Revised Statutes 1929, relating to taxation and revenue have the same meaning. However, that ruling is not conclusive as to the meaning of said words as used in Section 12316 in Chapter 86, Revised Statutes 1929, relating to township organization. The meaning of said words in said section was not under consideration in that case.

The above-quoted section (12316) when enacted in 1881 did not contain the words "back taxes." It was carried in the revisions without amendment until 1911 when it was amended by adding said words. [Acts of 1911, p. 425.]

It is clear that, by the amendment, the Legislature intended to change the commission allowed ex officio county collectors. Under the section as originally enacted, said collectors were allowed five per cent for collecting delinquent corporation, merchant, license and railroad taxes. He also was allowed five per cent for collecting taxes returned uncollected to the county courts by the township collectors. In construing said section it should be noted that under township organization the personal and real estate taxes are collected by township collectors, who make annual settlements with the county courts on the first of March. Thereafter the delinquent taxes returned by the township collectors are made into a delinquent list, or back tax book, and delivered to the ex officio county collectors for collection. It should also be noted that the current and delinquent corporation, merchant, license and railroad taxes are collected by the ex officio county collectors. The township collectors are without authority to collect said taxes. The railroad taxes referred to in Section 12316 are not listed in the...