State ex rel. Smith v. Atterbury
| Decision Date | 12 July 1954 |
| Docket Number | No. 44438,44438 |
| Citation | 364 Mo. 963,270 S.W.2d 399 |
| Parties | STATE ex rel. SMITH v. ATTERBURY. |
| Court | Missouri Supreme Court |
J. E. Taylor, Jefferson City, for relator.
John M. Dalton, Atty. Gen., Donal D. Guffey, Asst. Atty. Gen., for thE state.
This is an original proceeding in mandamus. Relator seeks an order of this court directing respondent to preapprove and certify for payment relator's account for compensation alleged to be due from the state in the amount of $377.91 for the making of the 1954 'real estate book' in compliance with the detailed provisions of Section 137.225(2) RSMo 1949, V.A.M.S. As authority for such compensation the relator relies upon Section 53.130 RSMo 1949, as amended Laws 1953, p. 371, S.B. No. 40, Section 1, 67th General Assembly, V.A.M.S.Cum.Supp.1953.
After the filing of relator's application and the court's order for the issuance of an alternative writ of mandamus, respondent entered his voluntary appearance in this court, waived the issuance and service of the alternative writ and agreed that relator's petition be taken as and for the writ. Respondent thereafter filed a motion to quash the alternative writ on the ground that under the existing law relator is not entitled to the compensation claimed for making the 'real estate book.' By stipulation, approved by the court, relator and respondent have waived oral argument and agreed that the cause be submitted to the court upon the pleadings and briefs.
The facts pleaded in relator's petition and now admitted for the purpose of respondent's motion are as follows:
Relator is the duly elected, qualified and acting County Assessor of Saline County, a county of the third class. Respondent is the duly appointed, qualified and acting Comptroller of the State of Missouri, whose duty it is to preapprove all valid claims and accounts against the state and to certify them to the State Auditor for payment.
It is relator's duty each year, among other things, to prepare and compile a 'real estate book' in the manner and form provided by law. He has performed all the duties imposed upon him by law, including the preparation and compilation of the 'real estate book', between the first day of January and the first day of May, 1954. The number of entries made in said 'real estate book' for 1954 was 12,597. Relator claims that he is entitled to a fee of six cents per entry for this service, one-half of which is to be paid out of the County Treasury and one-half out of the State Treasury; and that the total compensation to which he is entitled for making the 'real estate book' for 1954 is $755.82, and the amount for which the State is liable is $377.91. On this basis he presented his account for compensation for making the 1954 'real estate book' to the County Court of Saline County and that court, by order of record, found his said account to be correct and ordered the sum of $377.91 (which is the amount claimed to be due from the State) to be certified to the Comptroller for payment. Relator thereafter presented his account for compensation in the amount of $377.91 for making the 1954 'real estate book' to the respondent for his preapproval and certification to the State Auditor for payment, and at the same time relator delivered to respondent a duly certified copy of the order of the County Court of Saline County approving relator's account, as aforesaid. Thereafter respondent refused and still refuses to preapprove and certify to the State Auditor for payment relator's account for compensation in the amount of $377.91 claimed to be due from the State for the making of the 1954 'real estate book', as aforesaid. The refusal of respondent is based upon the sole ground that the Attorney General has ruled, in an opinion under date of June 22, 1953, that under the existing law an Assessor of a county of the third class is not entitled to any compensation for making entries in the 'real estate book.'
If relator is entitled to six cents per entry for making the 'real estate book', he is entitled to a total compensation of $755.82 and if the state is liable to relator for one-half of this amount the amount due relator from the state is the sum of $377.91. There is a valid appropriation sufficient in amount to pay relator the said amount as compensation to him for making the said 'real estate book'. Respondent would preapprove and certify to the State Auditor for payment the relator's said account for compensation, if it were not for the said opinion of the Attorney General that the State is not so indebted to relator.
Prior to the date of the Attorney General's opinion, respondent and his predecessors in office had construed Section 53.130 RSMo 1949, as amended Laws 1953, from July 1, 1946, its effective date, until June 22, 1953, the date of the opinion of the Attorney General, as authorizing assessors of counties of the third class a fee of six cents per entry for making the 'real estate book' and as requiring that one-half thereof be paid out of the State Treasury. Each year, during said period of time, respondent or his predecessors in office have, on the basis stated, preapproved and certified to the State Auditor for payment the claims of all County Assessors of the third class against the State for making the 'real estate book'.
The present State Auditor and his predecessors in office have also construed Section 53.130, from its effective date until the opinion of the Attorney General, as authorizing County Assessors of the third class a fee of six cents per entry for making the 'real estate book', one-half of which was to be paid out of the State Treasury. Each year, during said period of time and on the basis stated, they have issued their warrants in payment of the claims of all County Assessors of the third class against the State for making the 'real estate book'. Also, all of the County Assessors of third class counties and the county courts thereof have, during the above mentioned period of time, construed Section 53.130 as authorizing such assessors a fee of six cents per entry for making the 'real estate book' and such county assessors have been paid such fees each year during said period of time, one-half of which has been paid out of the various county treasuries and one-half out of the state treasury.
In view of the above stated facts the sole question presented in this proceeding is whether an assessor of a county of the third class not under township organization is entitled to the compensation claimed for making the 'real estate book'. Relator relies upon the provisions of said Section 53.130, supra, while respondent insists that said section 'does not authorize compensation * * * for making entries in the 'real estate book." Section 53.130, supra, is as follows: (Italics ours.) This section for the purposes of this case is the same as 53.130 RSMo 1949, enacted Laws 1945, p. 1554, Sec. 1, as the 1953 modification is not material here.
Respondent points out that Section 53.130, supra, provides that 'each county assessor shall be allowed a fee of six cents per entry for making real estate and tangible personal assessment books' and that it further contains a proviso 'that nothing contained in this section shall be so construed as to allow any pay per name for the names set opposite each tract of land assessed in the numerical list.' Respondent takes the position that 'these provisions are ostensibly conflicting and contradictory giving rise to an ambiguity which may be resolved only by judicial construction.' Respondent says that the term 'numerical list' as here used is synonymous with land book or 'real estate book'; that the language in Section 53.130 is almost identical with that in Section 9806 RSMo 1929, as amended Laws 1931, p. 358; that this court in the case of State v. Gomer, 340 Mo. 107, 101 S.W.2d 57, 64, 65, construed said amended Section 9806 and noted that it seemed impossible to harmonize these provisions, but, after a thorough and exhaustive review of the historical development of the laws relating to the assessment of property and the compensation provided the officials performing these duties, permitted each provision to stand; that, in reaching this conclusion, the court had before it for consideration another provision, to wit, Section 9780 RSMo 1929, later Section 10971 RSMo 1939, repealed Laws 1945, p. 1782, Section 1, which section allowed the county court to fix the assessor's fee for making the land book in an amount not to exceed three cents per tract assessed; that this court in the Gomer case held the words 'real estate' were added to the proviso in 9806 RSMo 1929, as amended Laws 1931, p. 358, to require the state to pay one-half of the amount allowed by the county court under Section 9780 for the making of the real estate book; that this construction of Section 9806 RSMo 1929, as amended Laws 1931, p. 358, which section respondent says was similar to Section 53.130, is controlling even though Section 9780 RSMo 1929, which was construed with Section 9806, as amended, has been...
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