State v. Ludwig

Decision Date09 March 1959
Docket NumberNo. 45746,45746
Citation322 S.W.2d 841
PartiesSTATE of Missouri, Appellant, v. Lawrence LUDWIG, Respondent.
CourtMissouri Supreme Court

John M. Dalton, Atty. Gen., Robert R. Welborn, Asst. Atty. Gen., for appellant.

Christian F. Stipp, Carrollton, for respondent.

BARRETT, Commissioner.

In this summary proceeding by motion, alleging that Lawrence Ludwig, who as treasurer and thereby ex-officio collector of Carroll County, had retained fees and commissions in excess of those allowed by law, the State of Missouri sought to recover its share of the excess, $653.96 for 1954 and $844.13 for the year 1955, together with the statutory penalty of 10% per month upon the amounts he had failed to pay. Sec. 139.260, R.S.Mo.1949, V.A.M.S. Mr. Ludwig filed a motion to dismiss the proceeding and upon the motion's being overruled filed an answer. At the conclusion of a hearing in which Mr. Ludwig offered no evidence except three exhibits, his annual settlements with Carroll County and a letter from the supervisor of the county department of the Department of Revenue, the trial court found 'the issues' on both counts of the motion in favor of the collector and the State of Missouri has appealed from the judgment entered against it.

The statutes governing the salary, fees and commissions of county collectors, particularly those statutes limiting the total salary, fees and commissions of county treasurers who are ex-officio collectors in counties under township organization, are sections 54.320, 52.260, 52.270 and 52.280, R.S.Mo.1949, V.A.M.S. The ex-officio collector here admits that he has retained the fees and commissions described in the proceeding and he tacitly concedes, for the purposes of this proceeding and of this appeal, that they are in excess of the sums allowed by the statutes. Thus there is no controversy as to the basic, underlying facts and the determinative questions briefed and argued concern the validity and applicability of the statutes, the appropriateness of this summary proceeding, and whether the events subsequent to the collection and retention of the commissions constitute a defense to the state's claim. In this opinion it is proposed to first outline and then consider in detailed order the collector's attack upon the statutes and this proceeding. The collector's attack upon the entire proceeding is two-pronged: he first attacks the constitutionality and validity of the statutes, sections 52.260 and 52.270, which limit his fees and commissions, and, second, he attacks the essential merits of the proceeding in detail.

He contends that the statutes are unconstitutional for three reasons: one, because the bill by which they were enacted was uncertain and indefinite and contained more than one subject (Const.Mo.1875, Art. 4, Sec. 28; Const.Mo.1945, Art. 3, Sec. 23, V.A.M.S.), second, because the General Assembly in its passage so amended the bill as to change its original purpose (Const.Mo.1875, Art. 4, Sec. 25; Const.Mo.1945, Art. 3, Sec. 21), and, third, because the statutes, particularly section 52.270, deprive him of his property without due process of law (Const.Mo.1875, Art. 2, Sec. 30; Const.Mo.1945, Art. 1, Sec. 10). He also urges, in so far as it applies to him as an ex-officio collector in a township organization county, that the statute limiting his fees and commissions, section 52.270, was repealed by implication by the reenactment of section 54.320, in 1951, concerning treasurers and ex-officio collectors.

The collector's attack upon the essential merits of the proceeding is also threefold: He contends, first, that the state's motion fails to state a claim upon which relief can be granted in that it does not allege that he has failed to pay 'taxes or revenue' collected by him for the state but seeks only to recover 'commissions' in excess of those allowed by law. In this connection it is urged that there is no charge or claim of fraud, or of filing a false return, and no allegation or proof that he has intentionally failed to pay the amounts shown to be due on his settlements. Further, in connection with this point, it is said that the evidence proved as a matter of law that the state was not entitled to a recovery against him under section 139.260 (the section under which the proceeding was instituted) because the evidence showed that he had collected and paid the state all taxes due for the two years involved, and there was no order by the county court to pay over to the state any alleged excess commissions. He contends, second, that he made and the county court approved, all as provided by law, his final settlements and, therefore, the state may not recover its share of the excess commissions in this proceeding. He urges, in the third place, that the state accepted his monthly settlements and 'his final settlement,' and, therefore, the state is 'barred' and 'estopped,' that if there was a mistake in his settlements with the state, the mistake was one of law, not of fact, and precluded a recovery in this proceeding. Since the granting of a rehearing the respondent urges that the action under section 139.260 is solely for the recovery of a penalty, that the penalty of ten per cent per month may not be imposed in the circumstances of this case, that the penalty provision of the statute is not separable from its other provisions, and, therefore, there can be no recovery of the excess commissions or of any other sum in this particular proceeding.

In considering whether the statutes limiting the collector's compensation are unconstitutional by reason of the bill enacting them, it is necessary to note in detail the place of these provisions in the statutes in general. Sections 52.260 and 52.270 are now a part of chapter 52 of the revised statutes and that chapter contains the 'general provisions' concerning 'County Collectors.' Subdivision 13 of section 52.260, dealing with counties in which the total of all taxes levied exceeds $350,000 but is less than $2,000,000, applies to Carroll County and limits the collector's commissions on taxes collected. Section 52.270 makes it the duty of county clerks to forward the annual settlements of collectors to the state auditor and again limits the fees of collectors to specified commissions and as to collectors falling within subsection 13 of section 52.260 to 'not more than five thousand five hundred dollars.' In express language, section 52.270 does not apply to the rate of per cent to be charged for collecting taxes in counties under township organization, such as Carroll County, 'but shall apply to counties under township organization so far as to limit the total amount of fees and commissions which may be retained annually by the county treasurer and ex officio collector for collecting taxes in such counties.' In the 1929 statutes what have now come to be sections 52.260 and 52.270 was contained in a single section consisting of fifteen subdivisions, section 9935, and, it may be noted in passing, provided that 'no collector shall be allowed to retain over nine thousand dollars of commissions and fees in any one year.' This statute, section 9935, referred to but expressly exempted collectors and counties under township organization; 'Provided, however, that this section shall not apply to any county adopting township organization.' Section 9935 was contained in Article 8, 'Collectors And The Collection of Taxes,' and the article was a part of Chapter 59, 'Taxation and Revenue.' In the 1929 statutes chapter 86 dealt with the subject of 'Township Organization,' and article 11 of that chapter dealt with 'County Treasurers As Ex Officio Collectors,' section 12316 of the article fixing the salaries and commissions of such officers. It is said in passing, therefore, that there was no necessity for anyone interested in the office of ex-officio collector in a township organization county to familiarize himself with section 9935, although he had to have known that it was that particular section that specifically exempted township organization counties from the restrictions as to the fees and commissions any collector could retain.

In any event, in 1933 section 9935--now sections 52.260 and 52.270--was 'repealed' and 'a new section' enacted (Laws of Mo.1933, p. 454), and it is that act which the respondent now says is unconstitutional; first, in that the bill by which it was enacted infringed and violated section 28, Article 4, Constitution of Missouri 1875 (Const.Mo.1945, Art. 3, Sec. 23): 'No bill shall contain more than one subject, which shall be clearly expressed in its title.' It is said that the subject of section 9935 was 'compensation and limitation of compensation of collectors other than those in township organization counties' while section 12316 governed the compensation of ex-officio collectors in township organization counties, and thus it said and sought to be demonstrated that the act, particularly as amended in its passage, contained two subjects.

The bill by which section 9935 was repealed and the new section enacted was introduced by Senator Albert Clark, then senator from the eighth senatorial district comprised of Caldwell, Carroll, Daviess and Ray counties. Section 11269, R.S.Mo.1929. The bill was Senate Bill No. 185 and the Senate Journal recites that it was 'An act to repeal section 9935 of article 8, chapter 59, Revised Statutes of Missouri, 1929, entitled 'Collectors and the collection of taxes,' and to enact a new section to be known as section 9935 pertaining to the same subject.' Senate Journal, 57th General Assembly, pp. 199-200. After its second reading the bill was referred to the Committee on Ways and Means and that committee recommended the passage of the bill 'with Committee amendments 1 and 2.' Senate Journal, pp. 259, 447. The bill was then placed on the informal calendar (Senate Journal, p. 487); subsequently Senator Clark called the bill from the informal...

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19 cases
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    ...State v. Bennett, 102 Mo. 356, 14 S.W. 865, 10 L.R.A. 717; State ex rel. Lorantos v. Terte, 324 Mo. 402, 23 S.W.2d 120; and State v. Ludwig, Mo., 322 S.W.2d 841. The approach of the courts to the determination of this question is well stated in a case determining the validity of the County ......
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    ...not generally favored. Sutherland Statutory Construction, 3rd Ed., § 2011; Collins v. Twellman, 344 Mo. 330, 126 S.W.2d 231; State v. Ludwig, Mo.Banc, 322 S.W.2d 841; In re Thomas, Mo.App., 306 S.W.2d 336; and it is sometimes said that there is a presumption against such a repeal. State v. ......
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1 books & journal articles
  • Tipping point: Missouri single subject provision.
    • United States
    • Missouri Law Review Vol. 72 No. 4, September 2007
    • September 22, 2007
    ...omitted). (6.) Hammerschmidt v. Boone County, 877 S.W.2d 98, 101-02 (Mo. 1994) (en banc). (7.) Id. at 101. (8.) State v. Ludwig, 322 S.W.2d 841, 847 (Mo. 1959) (en banc) (quoting THOMAS M. COOLEY, CONSTITUTIONAL LIMITATIONS 314 (9.) Hammerschmidt, 877 S.W.2d at 102. (10.) Fustv. Attorney Ge......

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