State ex rel. Western Union Tel. Co. v. Markway, 35391.

• Decision Date: 09 December 1937
• Docket Number: No. 35391.,35391.
• Citation: 110 S.W.2d 1118
• Parties: STATE OF MISSOURI at the relation of THE WESTERN UNION TELEGRAPH COMPANY, a Corporation, Relator, v. AL MARKWAY, Collector of the Revenue of the County of Cole.
• Court: Missouri Supreme Court

110 S.W.2d 1118

STATE OF MISSOURI at the relation of THE WESTERN UNION TELEGRAPH COMPANY, a Corporation, Relator, v. AL MARKWAY, Collector of the Revenue of the County of Cole.

No. 35391.

Supreme Court of Missouri.

Court en Banc, December 9, 1937.

Mandamus.

PEREMPTORY WRIT ORDERED.

Jones, Hocker, Gladney & Grand, Sullivan, Reeder & Finley, Lon O. Hocker and Ralph T. Finley for relator; Francis Stark and Robert C. Barnett of counsel.

(1) Under the Constitution of Missouri, the Supreme Court has original jurisdiction in mandamus proceedings to compel administrative officers to perform administrative or ministerial acts. State ex rel. Haliburton v. Roach, 230 Mo. 408, 130 S.W. 689; State ex rel. McDowell v. Smith, 334 Mo. 643, 67 S.W. (2d) 50; State ex rel. Nolen v. Nelson, 310 Mo. 526, 275 S.W. 927. The writ has been repeatedly used to compel the acceptance of a tender for taxes and issuance of receipt therefor. State ex rel. v. Hyde, 241 S.W. 400; State ex rel. v. Jaudon, 286 Mo. 181, 227 S.W. 48; State ex rel. v. St. Louis School Board, 131 Mo. 505, 33 S.W. 3. (2) A tax is not a debt, and liability therefor is in invitum, and authority to tax must be expressly given. Cooley on Taxation (4 Ed.), sec. 22; State ex rel. v. Dix, 159 Mo. App. 576; State ex rel. Parrish v. Young, 327 Mo. 915, 38 S.W. (2d) 1021; Leavell v. Blades, 141 S.W. 894. (3) Before the State can collect interest and penalties on taxes, the authority therefor must be clearly set forth in the statutes, and taxing laws are strictly construed against the State in favor of the taxpayer. State ex rel. Natl. Life Ins. Co. v. Hyde, 292 Mo. 352, 241 S.W. 396; State ex rel. Compton v. Buder, 308 Mo. 260, 271 S.W. 770; State ex rel. Ford Motor Co. v. Gehner, 325 Mo. 29, 27 S.W. (2d) 1. (4) The relator, being a telegraph company, is taxable in the same manner as railroads, and the statutes of Missouri do not authorize the assessment of interest herein. Secs. 10035, 10066, R.S. 1929; Laws 1933, p. 426, sec. 9945; Laws 1933, p. 429, sec. 9952. (5) There is no provision under our statutes for the making of a levy nunc pro tunc, and the assessment of interest or penalties prior to the levy and ascertainment of the amount of the tax. And taxes in Missouri are not levied until the county court acts upon the certification received from the State Auditor or Tax Commission. R.S. 1929, sec. 10028; State ex rel. v. St. Louis & S.F. Ry. Co., 117 Mo. 1, 22 S.W. 910; Cooley on Taxation (4 Ed.), sec. 1164. (6) There is no authority in law for the assessment and collection of collector's commissions in addition to the taxes as attempted by the respondent in this case. Whatever commissions that may be allowable, there being no suit or seizure of personal property, are payable out of the tax. Sec. 10044, R.S. 1929; State ex rel. v. St. Louis-S.F. Ry. Co., 334 Mo. 127, 66 S.W. (2d) 149.

Roy McKittrick, Attorney General, and James L. HornBostel for respondent.

(1) The Missouri State Tax Commission has original jurisdiction in assessing distributable or operative property of telegraph companies subject only to approval of the State Board of Equalization. Sec. 9854 (6), R.S. 1929; State ex rel. v. Baker, 320 Mo. 1146, 9 S.W. (2d) 592; State ex rel. St. Louis v. Caulfield, 333 Mo. 270, 62 S.W. (2d) 823. (2) When operative property of a utility is assessed, each county and political subdivision in which the utility has properties, receives an allocated percentage of the total property of the utility. Sec. 10024, R.S. 1929. (3) The county court fixes and determines the rate of levy and levies the tax. Sec. 10028, R.S. 1929; St. Louis & S.F. Ry. Co. v. Apperson, 97 Mo. 300. (4) The county clerk enters on the railroad tax book the assessment certified and extends the levy and tax and turns said book over to the county collector for the collection of the tax. Secs. 10030, 10032, R.S. 1929. (5) Relator cannot take advantage of the failure of the taxing officials to levy taxes in the time required by law or enjoined assessments when relator restrained the certification of the assessments. While mandamus is a legal action, yet relator must come into court with clean hands in respect to the controversy; consequently mandamus does take of the nature of equity. This court should take into consideration what relator by the injunction suits has done to respondent. State ex rel. Hyde v. Jackson County Medical Soc., 295 Mo. 144, 243 S.W. 341; State ex rel. Causack Co. v. Shinrick, 208 Mo. App. 284, 232 S.W. 1053; State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W. (2d) 891, 81 A.L.R. 1066. (6) The collector is not entitled to a commission from relator. State ex rel. Davidson v. St. Louis-S.F. Ry. Co., 66 S.W. (2d) 149, 334 Mo. 127.

TIPTON, J.

This is an original proceeding in mandamus to compel respondent, as collector of revenue of Cole County, Missouri, to accept from relator a designated and tendered sum in full satisfaction of certain taxes for the years 1933, 1934 and 1935, without penalties, interest and commissions as demanded by respondent.

As of June 1, 1932, relator made return of its property in this State assessable by the State Tax Commission. As provided by Articles IV, XIII and XV of Chapter 59 of the Revised Statutes of Missouri, 1929, relator was notified by the State Tax Commission that a tentative assessment of $6,556,192 had been made on its property in Missouri for taxes payable in the year 1933, and that at a hearing before that commission and also before the State Board of Equalization the assessment had been approved in that sum. Before this assessment was apportioned and certified by the State Tax Commission to the various taxing subdivisions of this State, relator obtained a temporary injunction in the United States District Court against the members of that commission, its secretary and the State Auditor, restraining them from certifying to the various taxing subdivisions of the State their apportionment of the assessment in excess of $3,440,000, the amount that relator contended the assessment should have been. At a final hearing that court dismissed relator's bill, which judgment was affirmed by the United States Circuit Court of Appeals.

As of June 1, 1933, relator made its return to the State Tax Commission of its taxable property in this State, and that commission placed on it a tentative assessment of $6,505,013, for taxes payable in the year 1934. This assessment was finally approved by the State Board of Equalization in the sum of $6,504,684. Relator obtained a temporary injunction in the United States District Court similar in all respects to the suit involving the 1932 assessment. This injunction enjoined the certification of that portion of the assessment in excess of the amount admitted to be reasonable.

Again, in 1934 the State Tax Commission made a tentative assessment of $6,281,857 for taxes payable in the year 1935, which assessment was finally approved by the State Board of Equalization. Again relator obtained a temporary injunction similar in all respects to the first two injunctions.

The State Tax Commission duly caused to be certified to the various counties in this State those portions of the assessments as of June 1, 1932, June 1, 1933 and June 1, 1934, which were not in dispute, and the taxes based on these assessments were paid by relator before becoming delinquent.

After the decision of the Court of Appeals in the first suit, relator dismissed the second and third suits, and damages on the various injunction bonds in the third suits were waived.

In October, 1936, the State Tax Commission apportioned and caused to be certified to the various counties in the State those portions of the three assessments as of June 1, 1932, June 1, 1933, and June 1, 1934, respectively, which had not theretofore been certified, and State and county taxes were levied and extended on the tax books in the various counties, including Cole County, for the years 1933, 1934 and 1935. Respondent demanded of relator the payment of the taxes, interest and collector's commissions based on such additional assessments for such years in that county as follows:

                          Amount     Amount     Collector's
                Year      of Tax   of Interest  Commissions
                1933    $ 406.68   $ 89.47       $ 9.92
                1934      475.03    104.51        11.59
                1935      443.72     53.25         9.94
                       _________   _______       ______
                       $1,325.43   $247.23       $31.45
                

On December 9, 1936, relator tendered to respondent the sum of $1325.43 in full payment for such additional taxes, without interest and commissions, and demanded a receipt for these taxes. Respondent refused such tender because it did not include the interest and commissions. It is the contention of relator that such additional taxes did not become delinquent prior to January 1, 1937.

[1] "The power to levy and collect taxes is purely statutory, and has been confided to the Legislature and not the courts." [State ex rel. Parish v. Young, 327 Mo. 909, l.c. 915, 38 S.W. (2d) 1021.] "It is well established that the right of the taxing authority to levy a particular tax must be clearly authorized by the statute, and that all such laws are to be construed strictly against such taxing authority." [State ex rel. Ford Motor Co. v. Gehner, 325 Mo. 24, l.c. 29, 27 S.W. (2d) 1.]

[2] With these principles of law in mind, we look to the statutes of this State to see when taxes on telegraph companies become delinquent. Section 10066, Revised Statutes...