State v. Davis
Decision Date | 17 May 1934 |
Docket Number | 33690 |
Citation | 73 S.W.2d 406,335 Mo. 159 |
Parties | The State, Appellant, v. O. M. Davis, Collector of Revenue of Howell County |
Court | Missouri Supreme Court |
Appeal from Howell Circuit Court; Hon. Will H. D. Green Judge.
Affirmed.
Roy McKittrick, Attorney-General, and Harry G. Waltner Jr., Assistant Attorney-General, for appellant.
(1) Appellate jurisdiction of this case is in the Supreme Court as it involves the construction of the revenue laws of the State. State ex rel. Hadley v. Adkins, 221 Mo. 112. (2) Motion for judgment against collector on his bond is a proper remedy when the collector fails to pay over taxes collected. Sec. 9934, R. S. 1929; Mississippi County v Jackson, 51 Mo. 23. (3) The term "levied" as used in Section 9935, Revised Statutes 1929, is used in the sense of "charged." (a) Such construction consistent with purpose of enactment. Sec. 9935, R. S. 1929. (b) Such construction is required by consideration of entire section and other sections respecting compensation of collectors. Sec. 9969, R. S. 1929; Board of Education v. Ziegenhein, 156 Mo. 313; State ex rel. Shannon County v. Hawkins, 169 Mo. 615; Scotland County v. Ewing, 116 Mo. 129. (c) Such construction has been placed upon the term "levied" by other courts when intent of statute required. State v. Ascotin County, Washington, 140 P. 914. (d) The Legislature having provided extra compensation for collection of delinquent taxes under Section 9969, the collector is confined to such additional compensation and Section 9935 cannot be construed so as to give additional compensation for such collections. King v. Riverland Levee District, 279 S.W. 195. (e) Such construction is consistent with administration interpretation, which should be given due consideration. Stipulation of Facts, par. 4; State ex rel. White v. Fendorff, 317 Mo. 579. (4) Public officers are presumed to act gratuitously and are required to point to the letter of the law authorizing their compensation. Holman v. City of Macon, 155 Mo.App. 398. Such statutes are to be construed strictly against the claimant. State ex rel. v. Brown, 146 Mo. 401.
H. D. Green and A. W. Landis for respondent.
The word "levied" as applied to taxation refers to the exercise of the legislative function of declaring the rate and subject of taxation, and determines the amount sought to be raised for the particular year of the levy. And on this sum the collector's commission is based. Secs. 9866-9870, R. S. 1929; McAnally v. Little River Drainage Dist., 28 S.W.2d 651; State ex rel. Hamilton v. Ry. Co., 113 Mo. 307; Sec. 9935, R. S. 1929; State ex rel. v. Ry. Co., 247 S.W. 182; State ex rel. v. Payne, 151 S.W. 663; Scotland v. Ewing, 116 Mo. 129; So. Railway v. Kay, 39 S.E. 785; People v. Ry. Co., 147 N.E. 492; Sussex v. Jarratt, 106 S.E. 384; State ex rel. v. Minneapolis, 200 N.W. 932. Executive construction can be invoked only when statute is ambiguous or doubtful, and when such construction has long been adhered to. Folk v. St. Louis, 157 S.W. 71, 250 Mo. 116; State ex rel. Cobb v. Thompson, 5 S.W.2d 57, 319 Mo. 492. The law presumes that an officer will perform his duty, but if the collector should fail to use diligence in the collection of taxes the law provides a remedy by permitting the county court to disapprove his settlement. His settlement having been approved, he is entitled to full commission, since the presumption is that he has used due diligence. State ex rel. v. Hawkins, 169 Mo. 621.
Gantt, J. All concur, except Ellison and Hays, JJ., absent.
Action under Section 9934, Revised Statutes 1929, to recover $ 40.78 alleged to have been illegally withheld by defendant collector as commission for collecting State taxes for 1932. Judgment for defendant, and plaintiff appealed.
The question presented must be determined by a construction of the revenue laws of the State. [State ex rel. Hadley v Adkins, 221 Mo. 112, 119 S.W. 1091.]
Defendant admits that plaintiff correctly stated the facts as follows:
The provisions of said section for consideration in determining the question follow:
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