State ex rel. Young v. F. W. Woolworth Co.

• Decision Date: 12 December 1941
• Docket Number: 37592
• Citation: 159 S.W.2d 297,348 Mo. 1180
• Parties: State of Missouri at the relation of Charles Young, Treasurer and and Ex Officio Collector of Livingston County, Appellant, v. F. W. Woolworth Company
• Court: Missouri Supreme Court

159 S.W.2d 297

348 Mo. 1180

State of Missouri at the relation of Charles Young, Treasurer and and Ex Officio Collector of Livingston County, Appellant, v. F. W. Woolworth Company

No. 37592

Supreme Court of Missouri

December 12, 1941

Rehearing Denied February 26, 1942.

Appeal from Grundy Circuit Court; Hon. V. C. Rose, Judge.

Affirmed.

Joseph J. Shy for appellant.

(1) Section 6906, R. S. 1889 (Sec. 10089, R. S. 1929), was not repealed or rendered obsolete by the repeal of Section 6899 R. S. 1889, and the enactment of a new section by the General Assembly of 1895 (Laws 1895, p. 223, now Section 10081, R. S 1929), because (a) Section 6906, R. S. 1889 (Sec. 10089, R. S. 1929), was not specifically repealed or mentioned by the repealing act of 1895, nor was it repealed by implication. Laws 1885, p. 223; State v. Bader, 78 S.W.2d 835, 336 Mo. 259; State ex rel. v. Smith, 67 S.W.2d 50, 334 Mo. 653; McGill v. St. Joseph, 38 S.W.2d 725, 225 Mo.App. 1033; State v. Walker, 34 S.W.2d 124, 326 Mo. 1233; Maurizi v. Coal & Mining Co., 11 S.W.2d 268; State v. Lee, 5 S.W.2d 83, 319 Mo. 796; Special Road District v. Huber, 212 Mo. 551. (b) Section 6906, R. S. 1889 (Sec. 10089, R. S. 1929), and Section 6899, Laws 1895, p. 223, as enacted by the General Assembly of 1895 in lieu of Section 6899, R. S. 1889, repealed, are not inconsistent or repugnant, and the two sections must be so inconsistent and repugnant as to be wholly irreconcilable in order for the Act of 1895 to effect a repeal of Section 6906, R. S. 1889 (Sec. 10089, R. S. Mo. 1929). State v. Walker, 34 S.W.2d 124, 326 Mo. 1233; State ex rel. v. Brown, 105 S.W.2d l. c. 911; Gasconage County v. Gordon, 241 Mo. l. c. 582; State ex rel. v. Shields, 230 Mo. l. c. 100; Decker v. Deimer, 129 S.W. l. c. 948, 229 Mo. 296; State ex rel. v. Clayton, 126 S.W. l. c. 509, 226 Mo. 292; State ex rel. v. Taylor, 123 S.W. l. c. 913, 224 Mo. 393.

Clarence T. Case, David W. Voyles, T. Jackson Case, Arch B. Davis and James W. Davis for respondent.

(1) The original enactment in 1855 of section now known as Section 10089, R. S. 1929, providing in effect that filing a false statement by a merchant as to the value of his stock in trade shall be deemed forfeiture of the bond given was a part of the former system of licensing, but said bond was never conditioned in a fixed penal sum, and no such provision has ever been added. Laws 1855, pp. 1072-1076; R. S. 1929, secs. 10078, 10089. (a) To determine whether a bond is one of forfeiture or one of indemnity, the court must be guided by the intent of the Legislature as evidence by the language of the statutes under which the bond is required. State v. Vienup, 147 S.W.2d 627. (b) The history of this legislation, and form and purpose of such bond, conclusively show it was intended to operate merely as indemnity to the collector against nonpayment of taxes. Laws 1834-1835, pp. 403, 404; Laws 1855, pp. 1072, 1076; Laws 1865, p. 409. (2) Prior to Act of March 2, 1895, there was no provision in the statutes of this State enabling the assessing officials to revise or increase the estimate of values placed by merchants and manufacturers upon their stocks of goods. Their own returned valuations were final, subject only to the procedure for collection of the tax, or a greater tax, and penalties, as outlined in Sections 10089, 10090 and 10091, R. S. 1929. The Act of 1895 changed all this, and definitely, for the first time, brought all jurisdiction over taxation of stocks of goods of merchants and manufacturers into the County Boards of Equalization upon principles applying to taxation of property, clearly eliminating all semblance of license or occupation tax. State ex rel. Carleton Dry Goods Co. v. Alt, 224 Mo. 493, 123 S.W. 885. (3) By this change, made in 1895, the collector was relieved of all duties or responsibilities except to collect tax bills certified by the county clerk under direction of the county board. Such legislative enactment, conferring power on a particular person or tribunal to perform specified acts, especially in the exercise of the power of taxation, is mandatory, and must be strictly observed. Railway Co. v. Apperson, 97 Mo. 300, 10 S.W. 478; Noll v. Morgan, 82 Mo.App. 112; Kansas City v. Railway, 81 Mo. 285. (4) Under the later system, the County Boards of Equalization were given the same powers, and were directed to proceed in the same manner as provided in the case of the equalization of real and personal property. They are now assessing boards with certain appellate powers, and have both legislative and judicial functions. Their action on questions of valuation of property within their jurisdiction is conclusive and binding. Principles of res adjudicata therefore apply. Their findings are not subject to collateral attack. R. S. 1929, sec. 10081; Laws 1931, p. 360; R. S. 1939, sec. 11309; State ex rel. Arnold v. McCune, 252 S.W. 657; State ex rel. Johnson v. Bank, 279 Mo. 228, 213 S.W. 815. (5) Where a property owner makes his own return, and is not given notice of an increase by the board, the assessment which follows on said return is a judicial act, upon which he is entitled to rely. State ex rel. v. Spencer, 114 Mo. 574, 21 S.W. 837; Mining Co. v. Neptune, 19 Mo.App. 438; Cape Girardeau v. Buehrman, 148 Mo. 198, 49 S.W. 985; Noll v. Morgan, 82 Mo.App. 112. (a) Such a determination is binding upon the collector as well as upon the taxpayer. State ex rel. Arnold v. McCune, 252 S.W. 657; State ex rel. Johnson v. Bank, 279 Mo. 228, 213 S.W. 815; State ex rel. Ford Motor Co. v. Gehner, 27 S.W.2d 1. (6) Where a later act covers the whole subject matter of earlier acts, embraces new provisions, and plainly shows that it was intended as a substitute for the earlier acts and to cover the whole subject then considered, and prescribe the only rules in respect thereto, it operates to repeal all former statutes relating to the same subject matter, not only inconsistent or in conflict, but even where not necessarily repugnant in express terms. State ex rel. Ashby v. Cairo Bridge Co., 340 Mo. 190, 100 S.W. 441; State ex rel. Mo. Pac. Ry. v. Public Serv. Comm., 275 Mo. 60, 204 S.W. 395; Grant v. B. & O. Ry. Co., 66 W.Va. 175, 66 S.E. 709; District of Columbia v. Hutton, 143 U.S. 18. (a) Statutes imposing a penalty should be strictly construed. State ex rel. Ashby v. Cairo Bridge Co., 340 Mo. 190, 197, 100 S.W. 441. (b) In construing a statute the court will not create a penalty by construction, but will avoid it, unless the legislative intent to the contrary clearly appears. Nicholas v. Kelley, 159 Mo.App. 20, 29, 139 S.W. 248; Rixke v. Western Union, 96 Mo.App. 406, 410, 70 S.W. 257. (7) Because the description or definition of the act penalized was partly contained within a section, other than the section naming the penalty, legislation affecting the one necessarily affected the other; and the abandonment by the General Assembly of the scheme of taxation, under which collectors were made responsible for merchants' taxation as set out in the former section, was, in effect, an abandonment of the provisions for his indemnity, with penalty features as contained in these allied sections, all of which had been previously adopted for his protection. Penal statutes include definition of offenses, as well as of punishments. Legislation affecting the one affects the other. State ex rel. Ashby v. Cairo Bridge Co., 340 Mo. 190, 100 S.W. 441; State ex rel. Mo. Pac. Ry. v. Public Serv. Comm., 275 Mo. 60, 204 S.W. 395; Hatton v. King, 134 Ark. 463; 1 Sutherland on Stat. Const. (2 Ed.), sec. 251; Commonwealth v. Kimball, 21 Pack. 373; Comm. v. McDonough, 13 Allen, 581; Grant v. B. & O. Ry. Co., 66 W.Va. 175, 66 S.E. 709.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

PER CURIAM

This is an action in six counts, each on the bond (for years 1923 to 1928 inclusive) required for merchant's license tax under Section 11306, R. S. 1939 (Sec. 10078, Mo. Stat. Ann. 8063, amended Laws 1935, p. 407) in the form provided by Section 11308, R. S. 1939. (Section 10080, Mo. Stat. Ann. 8064, amended Laws 1935, p. 407.) Recovery is sought for four times the amount of revenue found to be due for State and county taxes for each of these years, because it is alleged that false statements were filed, under the provisions of Section 11317, R. S. 1939. [Section 10089, Mo. Stat. Ann. 8069.] The court sustained defendant's demurrer to plaintiff's petition and entered judgment of dismissal from which plaintiff has appealed.

The question presented, by the allegations of the petition and the demurrer, is: Does the final determination of the Board of Equalization of the assessment of the merchant's tax (in accordance with the value stated in the merchant's list), and the payment of the taxes based thereon, make the matter of valuation res judicata, so that it is not subject to be collaterally attacked several years later in a suit by the collector on the merchant's bond?

The statutes requiring bond for merchant's license tax prescribing form of bond, and providing double, treble and quadruple penalties, as well as provisions for suit to collect them, first appear in R. S. 1855, Chap. 110, pp. 1072-78. [See also Laws 1853, p. 111.] They have been retained to this time in almost identical language (R. S. 1855, Chap. 110, sec. 4, now 11306, R. S. 1939; sec. 5, now 11308, R. S. 1939; sec. 11, now 11315, R. S. 1939; sec. 12, now 11316, R. S. 1939; sec. 13, now 11317, R. S. 1939; sec. 14, now 11318, R. S. 1939; sec. 15, now sec. 11319, R. S. 1939.) Under the 1855 laws, the merchant's tax (ad valorem) was "upon all goods, wares and merchandise, purchased by them," with certain exceptions (sec. 3), "within the year" (sec. 6); while the tax is now "on the highest amount of all goods, wares and...