State v. Hackmann

• Decision Date: 31 July 1924
• Docket Number: No. 25220.,25220.
• Citation: 265 S.W. 532
• Parties: STATE ex rel. BUDER v. HACKMANN, State Auditor.
• Court: Missouri Supreme Court

265 S.W. 532

STATE ex rel. BUDER v. HACKMANN, State Auditor.

No. 25220.

Supreme Court of Missouri, in Banc.

July 31, 1924.

Motion for Rehearing Overruled October 9, 1924.

Original proceeding in mandamus by the State, on the relation of William F. Buder, to compel George E. Hackmann, State Auditor, to approve certain accounts. Writ denied.

Buder & Buder, of St. Louis, for relator.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for respondent.

DAVID E. BLAIR, J.

Original proceeding by mandamus to compel the state auditor to approve certain accounts of relator. The petition was filed, and respondent entered his appearance and waived the issuance of our alternative writ. The facts are undisputed, and are gleaned from the amended petition, respondent's amended return, and relator's reply thereto. A demurrer was filed to a portion of relator's reply.

Relator is assessor of the city of St. Louis, and respondent is auditor of this state. As such assessor relator filed with respondent, and respondent refused to approve the following account:

                Expense United States postage (receipts
                heretofore filed with respondent) .........    $   12 00
                Expense clerk hire (pay roll heretofore
                filed with respondent) ....................     3,123 80
                (County clerk work—section 12997, R. S. 1919.)
                Extending tax on 1,318 returns at 3 cents
                each .....................................         39 54
                Making tax book for collector at 10 cents
                per 100 words and figures (26,670) .......         26 67
                Fifty cents per $100,000 valuation ........         7 50
                One-tenth of 1 per cent. total tax ($194,429.68)  194 42
                Filing and safe-keeping 1,747 lists at one-half
                cent each ......................................    8 74
                Making income assessment book, 10 cents
                per 100 words ..................................   26 67
                (Assessor's work—section 12816, R. S. 1919.)
                Taking 509 corporation returns at 20 cents
                each ...........................................  101 80
                Taking 1,240 individual returns at 20 cents
                each ...........................................  248 00
                Entering 311 corporation returns at 3 cents
                each ...........................................    9 33
                Entering 1,007 individual returns at 3 cents
                each ...........................................   30 21
                                                               ---------
                                                               $3,828 68
                

Relator is the proper officer for taking and receiving income tax returns in the city of St. Louis. The account rendered covers the period from May 1, 1922, to December 1, 1922. The controversy is as to the amount for which the state is liable. It is admitted that, save for the question of recoupment to be noticed later, whatever is due relator upon such account is due and payable to him by the state, and that there are sufficient funds in the state treasury appropriated and unexpended to pay the account.

Respondent admits that relator is entitled to compensation for, and we may therefore omit from further consideration, certain items in said account, as follows:

                Expense United States postage ...............  $   12 00
                Extending tax on 1,318 returns at 3 cents each     39 54
                Making tax book for collector at 10 cents per
                100 words and figures  ......................      26 67
                50 cents per $100,000 valuation .............       7 50
                One-tenth of 1 per cent. on total tax .......     194 42
                Entering 311 corporation returns at 3 cents
                each ........................................       9 33
                Entering 1,007 individual returns at 3 cents
                each  .......................................      30 21
                

Respondent denies that relator is entitled to any compensation whatever for the following items of said account:

                Expense of clerk hire ....................... $ 3,123 80
                Making income assessment book at 10 cents
                per 100 words ...............................      26 67
                

As to the following items, respondent admits relator is entitled to part of the compensation claimed, to wit:

(a) Item of filing and safe-keeping 1,747 lists at one-half cent each; amount claimed $8.74. Respondent concedes relator is entitled to $6.59 for 1,318 lists and denies liability for 431 lists, amounting to $2.15.

(b) Item of taking 509 corporation returns at 20 cents each; amount claimed, $101.80. Respondent concedes relator is entitled to $62.20 for 311 corporation returns and denies liability for 198 corporation returns, amounting to $39.60.

(c) Item of taking 1,240 individual returns at 20 cents each, for which relator claims $248. Respondent concedes relator is entitled to $201.40 for taking 1,007 such returns and denies liability for taking 233 such returns, amounting to $46.60.

I. The main controversy centers around relator's claim for clerk hire, in the sum of $3,123.80. The compensation of assessors for the performance of their duties under our income tax law is provided for by section 13124, R. S. 1919, which reads as follows:

"Assessors and collectors shall be compensated in like manner and in like amounts as for the assessments of other taxes: Provided, that in counties in which the assessors and collectors are paid a fixed salary, that in addition to the salary paid, they shall be permitted to charge for work performed in the assessing and collecting of the income tax, as provided by this article, the same fees as are charged by assessors and collectors whose salary is not fixed by law, and which fees so charged by said assessors and collectors for services rendered in assessing and collecting income tax shall be paid by the state."

Relator receives a salary as assessor of the city of St. Louis and is entitled to receive in addition the same compensation for performing his duties under the income tax law as assessors not upon a salary are entitled to receive. To support his claim for allowance of clerk hire relator relies upon section 13116, which is as follows:

"Every person who has a taxable income shall, on the first day of January of each year, or as soon thereafter as practicable, apply in person or by mail to the assessor of the district in which such person resides, for a proper blank on which to make a return, which said return shall be filed with the assessor on or before the first of March next following. The assessor shall be furnished all necessary printing, stationery, postage and office equipment, and he and his deputies shall be entitled to receive their actual necessary expenses incurred in the performance of their duties; all such expenditures shall be audited and paid out of the state or county treasury in the same manner as other similar expenses are audited and paid."

The words "he and his deputies shall be entitled to receive their actual necessary expenses incurred in the performance of their duties" are the particular words of the section to which relator looks for authority to charge the item of clerk hire. We think those words do not constitute such authority, Section 13124 provides for the compensation of the assessor. Therefore the words quoted from section 13116 have no reference to the compensation of the assessor himself, and the same consideration argues against a meaning for the words as referring to compensation or salary to deputies, assuming that deputies include clerks. Even if clerk hire may be regarded as an expense item to the assessor, no such expense item would be incurred by his deputies. The words "actual necessary expenses" are used in the same sense in referring to the assessor and to his deputies.

Section 13124 provides that assessors shall be compensated in like manner and in like amounts as for= assessment of other taxes. Their compensation for assessment of other taxes is fixed by section 12816, as amended by Laws of 1921, p. 671. Such compensation is in lieu of salary, except where a salary is provided by law. In that case the salary provided for is in lieu of fees. Section 12762 provides that the assessor may appoint as many deputies as he needs, "to be paid out of the fees allowed to such assessor." It is therefore the plain purpose of the statute, where the assessor is compensated upon the fee basis, that he shall pay out of such fees all of the salaries of deputies (including clerks) in making such assessments. Section 13124 provides that he shall be compensated in the same manner for making and receiving income tax returns. There is therefore no escape from the conclusion Relator receives a salary as assessor of that the assessor must pay salaries of all necessary deputies and clerks out of the fees allowed him for taking and receiving income tax returns. The "actual necessary expenses" provided for do not include salaries of any character. The clear meaning of sections 13116 and 13124 is that the assessor, in addition to the fees allowed by law, shall be entitled to have furnished to him, without deduction from such fees, all his necessary printing, stationery, postage, and office equipment, and that he shall be reimbursed for all outlays made by himself and his deputies by way of expenses in doing the work, for the doing of which work he and they are fully paid out of the fees allowed by law.

Before the state can be held liable for the payment of a fee or expense incurred in its behalf, the person or officer claiming such fee or expense must be able to point out the law authorizing such payment. Williams v. Chariton County, 85 Mo. 645; State ex rel. v. Wilder, 197 Mo. loc. cit. 32, 94 S. W. 499; Sanderson v. Pike Co., 195 Mo. loc. cit. 605, 93 S. W. 942. This relator has not done. The rule is that mandamus will not lie, unless the party asking such relief has...