State ex rel. Keitel v. Harris

• Decision Date: 05 March 1945
• Docket Number: 39247
• Citation: 186 S.W.2d 31,353 Mo. 1043
• Parties: State of Missouri ex rel. Elmer John Keitel, Sr., George A. Rozier and Harry P. Drisler, Members of the Unemployment Compensation Commission of Missouri, Relators, v. Brown Harris, Judge of Division 4 of the Circuit Court of Jackson County, Missouri
• Court: Missouri Supreme Court

186 S.W.2d 31

353 Mo. 1043

State of Missouri ex rel. Elmer John Keitel, Sr., George A. Rozier and Harry P. Drisler, Members of the Unemployment Compensation Commission of Missouri, Relators, v. Brown Harris, Judge of Division 4 of the Circuit Court of Jackson County, Missouri

No. 39247

Supreme Court of Missouri

March 5, 1945

Original Proceeding in Prohibition.

PROVISIONAL RULE QUASHED.

Provisional rule quashed.

Edward D. Summers, Acting Chief Counsel, and John L Porter, Assistant Counsel, for relators; George A Rozier of counsel.

(1) Contributions required by the Unemployment Compensation Law have been held to constitute a tax. Lucas v. Murphy, 348 Mo. 1078, 156 S.W.2d 686; Streckfus Steamers, Inc., v. Keitel, 353 Mo. 409, 182 S.W.2d 587. (2) Subsection (g) of Section 9436, R.S. 1939, as amended, Laws 1943, l.c. 947, provides a summary proceeding for the collection of Unemployment Compensation tax. Subsec. (g), Sec. 9436, R.S. 1939; as amended, Laws 1943, l.c. 947; DeArman v. Williams, 93 Mo. 158, 5 S.W. 904. (3) Due process in connection with the collection of taxes does not require all of the formalities required in actions by private litigants, it being sufficient that the taxpayer has been accorded the right to hearing at some stage of the proceedings. Spitcaufsky v. Hatten, 182 S.W.2d 86; 61 C.J., p. 1044, secs. 1359, 1360; Morrison v. St. Louis, Iron Mt. & So. Ry. Co., 96 Mo. 602, 9 S.W. 626, 10 S.W. 148; Ploch v. St. Louis, 345 Mo. 1069, 138 S.W.2d 1020; St. Francis Levee Dist. v. Dorroh, 316 Mo. 398, 289 S.W. 925; State ex rel. Hibbs v. McGee, 328 Mo. 1176, 44 S.W.2d 36; Subsec. (d), Sec. 9436, R.S. 1939, as amended, Laws 1943, l.c. 945; Sec. 9432B, R.S. 1939, as amended, Laws 1943, l.c. 939. (4) Federal constitutional objections are not applicable. State v. Halbrook, 311 Mo. 664, 279 S.W. 395; State v. Privitt, 327 Mo. 1194, 39 S.W.2d 755; Blind v. Brockman, 321 Mo. 38, 12 S.W.2d 742, affirmed 50 S.Ct. 87, 280 U.S. 525, 74 L.Ed. 592. (5) Purpose of return to execution is to apprise parties of action taken by sheriff. 33 C.J.S., p. 616, sec. 314; Jones v. Goodbar, 29 S.W. 462, 60 Ark. 182. (6) Court is without power to quash or otherwise interfere with execution issued under taxing power of State. Sec. 1387, R.S. 1939; 33 C.J.S., p. 330, sec. 144; O'Neal v. Milburn, 112 S.W.2d 124; Wyoma Leather Co. v. Modern Hat & Cap Mfg. Co., 67 S.W.2d 815; Mellier v. Bartlett, 89 Mo. 134, 1 S.W. 220. (7) Right of appeal. Bueker v. Aufderheide, 111 S.W.2d 131; W.A. Ross Constr. Co. v. Chiles, 344 Mo. 1084, 130 S.W.2d 524; Stephens v. D.M. Oberman Mfg. Co., 334 Mo. 1078, 70 S.W.2d 899; Sec. 1184, R.S. 1939; Wehrs v. Sullivan, 187 S.W. 825; Slagel v. Murdock, 65 Mo. 522; Gale v. Michie, 47 Mo. 326; Kansas City v. Woerishoeffer, 249 Mo. 1, 155 S.W. 779; Phelps County v. Bishop, 46 Mo. 68; Campbell v. Carroll, 35 Mo.App. 640.

J. K. Owens for respondent.

(1) Subsection G of Section 9436, R.S. 1939, as amended, Laws 1943, l.c. 947 provided a proceeding for the collection of Unemployment Compensation tax is unconstitutional. Art. 2, Mo. Const.; Laws 1943, p. 947; State ex rel. v. Ryan, 182 Mo. 349; State ex rel. v. Public Serv. Comm., 259 S.W. 445; State ex rel. Laundry v. Public Serv. Comm., 34 S.W.2d l.c. 46; Sonken Galamba v. Mo. Pac., 31 S.W.2d l.c. 527; Smith v. Thompson, 137 S.W.2d 897; State ex rel. York v. Lacker, 191 S.W. l.c. 1002; Finley-Keil Inv. Co. v. O'Conner, 256 S.W. 798; State ex rel. v. Nast, 209 Mo. 708; State ex rel. Columbian Tel. v. Atkins, 195 S.W. 751; Rhodes v. Benton, 230 Mo. 138. (2) The Circuit Court of Jackson County, Missouri has power to quash said execution. Jones v. Crow, 176 S.W.2d 849; Dewey v. Union Electric Co., 83 S.W.2d 203; Weniger v. Weniger, 32 S.W.2d 773; Newton v. Newton, 32 Mo.App. 162; Mellier v. Bartlett, 89 Mo. 137.

OPINION

Ellison, J.

This is an original proceeding in prohibition filed here by the members of the Unemployment Compensation Commission as relators, whereby they seek to prohibit the respondent judge of the Jackson county circuit court from entertaining jurisdiction of a "Motion to Quash Execution and Strike Transcript from Record", which was filed in said court by Thomas Manzella under Sec. 1387. ^[1] The motion assailed certain proceedings in respondent's court which had been initiated by the relators under Sec. 9436, subsections (e-8) and (g), as amended by Laws Mo. 1943, pp. 917, 944, 947 in the Unemployment Compensation Law, dealing with contributions assessed against employers for the benefit of certain unemployed persons in this State. These subsections provide (paragraphing ours):

Sec. (e-8) " The certificate of assessment which, under the provisions of this section, may be filed with the clerk of the circuit court shall, upon such filing, thereafter be treated in all respects as a final judgment of the circuit court against the delinquent and the general statute of limitations applying to other judgments of courts of record shall apply."

Sec. (g) "In any case in which any contributions, interest or penalty imposed under this law is not paid when due and the assessment of which has become final, the Commission may file for record in the office of the clerk of the circuit court in the county in which the delinquent owing said contribution, interest or penalty resides, . . . a certificate specifying the amount of the contribution, interest and penalty due and the name of the delinquent liable for the same and it shall be the duty of the clerk of the circuit court to file such certificate of record and enter the same in the record of the circuit court for judgments and decrees under the procedure prescribed for filing transcripts of judgments.

"From the time of the filing of such certificate, the amount of the contribution, interest and penalty specified therein shall have the force and effect of a judgment of the circuit court until the same are satisfied by the Commission or its duly authorized agents. Execution shall thereupon be issuable at the request of the Commission, its agent or attorney as is provided in cases of other judgments. . . ."

The facts disclosed by relators' petition and respondent's return, on which the cause is submitted as if relators had filed a motion for judgment on the pleadings, are as follows. Pursuant to the above statute the relators had filed in the respondent's court a certificate showing a specified amount of contributions and interest due from Manzella to the Unemployment Compensation Fund of Missouri. Thereafter, at relators' request the circuit clerk issued an execution returnable to the court on a specified date, commanding the sheriff of the county to make the amount shown due by the certificate, with costs, out of the goods, chattels and real estate of Manzella; and to garnishee his bank account. Manzella then filed the aforesaid motion to quash the execution and strike the certificate from the court records. Relators appeared by counsel and by a plea to the jurisdiction challenged the respondent's right to entertain the motion to quash. Respondent overruled the plea and had set the motion down for hearing, when relators filed their petition for prohibition here.

Relators' primary contentions are: that the contributions imposed by the Unemployment Compensation law are taxes; ^[2] that Sec. 9436 (e-8) and (g), supra, provides a summary method for the collection of such taxes; that due process in the collection of taxes does not require observance of formalities which might be essential in private litigation, a purely administrative procedure being sufficient. ^[3] Relying on these premises, relators maintain that the execution issued to the sheriff by the circuit clerk under Sec. 9436(g) is not a judicial but an administrative writ; and that these two officers do not serve as officers of the court in such instances, but "become parts of the tax collecting machinery provided by the Unemployment Compensation Law." And so, relators argue, the circuit court has no jurisdiction to interfere with the execution process, in response to a motion to quash or otherwise.

Prior sections and subsections of the Unemployment Compensation Law ^[4] do provide for the administrative levy and assessment of the contributions as taxes; and also for a notice and hearing before the Unemployment Compensation Commission. But subsections (e-8), (g), (h) and (i) of Sec. 9436, supra, are the ones providing for enforcing collection thereof. The first two of these (quoted above) permit the filing in the circuit court of a certificate of final assessment showing past due contributions, and the direct issuance of an execution based thereon. Subsections (h) and (i) authorize a civil action against employers who default in the payment of the contributions, to which the employer shall be precluded from asserting any defense if he has failed to exhaust his administrative remedies. The two procedures are made cumulative, and pursuit of one is not to be construed as an election excluding the other.

In this case, as stated, the relators followed the procedure under subsec's (e-8) and (g), which gives the certificate of unpaid contributions, when filed, the force and effect of a final judgment of the circuit court, though no notice issuing out of that court to the delinquent employer is required. And subsection (g) further authorizes the issuance of an execution at the request of the Commission, as is provided in the case of other judgments. Plainly the filed certificate is put on a parity with any judgment of the court. But Sec. 1391 provides that whenever an execution against a judgment debtor shall be returned unsatisfied, the judgment creditor shall be entitled to a court order requiring him to appear for examination under oath. And Sec's 1560 and...