State v. Rodecker

• Court: Missouri Supreme Court
• Writing for the Court: Burgess
• Citation: State v. Rodecker, 145 Mo. 450, 46 S.W. 1083 (Mo. 1898)
• Decision Date: 14 June 1898
• Parties: STATE ex rel. FISHER, County Treasurer, v. RODECKER et al.<SMALL><SUP>1</SUP></SMALL>

46 S.W. 1083

145 Mo. 450

STATE ex rel. FISHER, County Treasurer, v. RODECKER et al.¹

Supreme Court of Missouri, Division No. 2.

June 14, 1898.

MERCHANTS' LICENSE TAX — PERSONS LIABLE — CONSTRUCTION OF STATUTE — BOND — VALIDITY — ENFORCEMENT — PLEADING — VARIANCE.

1. In an action by the state, at the relation of a county treasurer and ex officio collector, on a merchant's license bond, the petition alleged a breach of the condition which required the filing of a statement of the highest amount of stock had by the principal between certain dates, alleged a certain amount to be the highest amount of said stock between said dates, and alleged damages in a sum equal to three times the amount of the tax "levied in the city" where the principal did business, in said county, on an assessment based on the amount of said stock. Held, that as against an objection that said relator, having no authority to collect city taxes, had no authority to sue, the petition was good.

2. Rev. St. 1889, § 6899, requiring a merchant to file a statement on the first Monday in June of each year, showing the greatest amount of goods on hand "at any time between the first Monday in March and the first Monday in June next preceding," means the first Monday in March and the first Monday in June of the same year in which the statement is required to be filed.

3. Where a petition by a clerical mistake alleged that it was the duty of defendant to perform a certain material act at a certain time in 1893 instead of 1894, but the petition also averred, and the evidence showed, that said act was not performed at said time in 1894, the incorrect averment was immaterial.

4. Under Rev. St. 1889, § 6899, providing that the principal in a merchant's license bond shall file a statement, in the county where he does business, of the highest amount of stock had on hand between the first Monday in March and the first Monday in June succeeding, the principal is amenable to the tax, although he ceases doing business in said county prior to the first Monday in June, where he continued doing business therein after the first Monday in March.

5. A merchant's license bond executed under Rev. St. 1889, § 6897, properly conditioned for payment of the tax, contained a further provision for the filing of the statement required by section 6921 of the highest amount of stock on hand between certain dates. Held that, conceding the latter provision to have been improperly placed therein, the bond was not thereby invalidated, and hence it might be enforced under section 6905, which provides that every person who shall fail to file the statement of assets required by section 6899 shall be deemed to have forfeited the bond given by him under section 6897.

Appeal from circuit court, Bates county; James H. Lay, Judge.

Action by the state, at the relation and to the use of Samuel H. Fisher, treasurer and ex officio collector of the revenue within and for Bates county, against J. Rodecker and Sam Cohen, partners as J. Rodecker & Co., W. K. Royce, and Aug. Elgert. There was a judgment for plaintiff, and motions for a new trial, in arrest of judgment, and for a new judgment were denied, and defendants appeal. Affirmed.

Silas W. Dooley, for appellants. Smith & Thurman, for respondent.

BURGESS, J.

This is an action by the state at the relation of Samuel H. Fisher, treasurer and ex officio collector of Bates county, against defendants Rodecker & Cohen as principals, and Royce and Elgert as sureties on their bond as merchants, executed according to the provisions of chapter 111, Rev. St. 1889. The conditions of the bond are "for filing the true statement required by section 6899, Rev. St. 1889, and for the payment on the 1st day of November next, to the collector of said county, of all taxes which may then be due from the principal in the bond for the twelve months ending on the 1st day of November next, upon merchant's license retail vender of merchandise, goods, wares and merchandise, and in default of such statement and payment to pay all damages and costs which may be adjudged against them by law." The bond was executed on the ____ day of November, 1893. The petition alleges that "it was the duty of the defendants Rodecker & Cohen, as merchants, to file or cause to be filed on the first Monday in June, 1893, with the clerk of the county court of said county, a true and correct statement, verified by affidavit, of the greatest amount of goods, wares, and merchandise which said defendant merchants * * * had on hand at any time between the first Monday in March, 1894, and the first Monday in June, 1894, which said defendant merchants * * * failed and refused to do; that the greatest amount in value of such goods, wares, and merchandise so had on hand by said merchants at one time between last-named dates was the sum of twelve thousand dollars; that by virtue of the premises under the law the bond so executed by defendants as aforesaid has become and is now forfeited, and that a right of action has accrued and now exists in favor of the plaintiff, and against each and all of said defendants upon said bond (a copy of which is herewith filed) for damages in sum equal to three times the amount of the revenue levied in the city of Rich Hill, Missouri, aforesaid, for the year 1894, upon an assessment of property at the value of $12,000, the amount in value of the greatest amount of goods, wares, and merchandise so held by defendants, * * * merchants, * * * at any time between the first Monday in March, 1894, and the first Monday in June, 1894, and for a reasonable fee for the attorney for bringing and prosecuting this action." The petition further alleges that the rate of taxation in the city of Rich Hill, Mo., aforesaid, for all purposes legally levied for the year 1893, is 20 mills upon each and every dollar of taxable property in said city. It also alleges that the relator has employed and selected Thomas J. Smith and A. W. Thurman, attorneys at the bar of this court, to bring and prosecute this action, and that a reasonable fee for their services in so doing is the sum of $100. It then prays judgment against defendants for the sum of $720, being three times the amount of taxes that would be due and collectible for the year 1893 in said city of Rich Hill, Mo., upon an assessment of $12,000, the true amount of property had on hand by defendants, as aforesaid, and which should have been returned in said statement, and for costs, including said attorneys' fee. Defendants answered, denying all the allegations in the petition, and by way of affirmative defense proceeded as follows: "Defendants, further answering, state that the said firm of Rodecker & Co., composed of J. Rodecker and Sam Cohen, ceased dealing in goods, wares, and merchandise or clocks in the said county of Bates prior to the 1st of June, 1894, nor did they at any time thereafter engage in the selling of goods, wares, and merchandise or clocks in said county; and they had made their statement and paid the...