*1 Supreme op COURT Missouri, Vol. 316. Levee Francis District of Missouri v. Charles Dorroh, Ap pellant. One, Division December 1. LEVEE DISTRICT: Taxpayer: Installment Tax: Directory Notice to Statute: Penalties. A valid assessment of having an installment tax been made and entered on the tax district, book the (Sec. of the levee the statute 12900, ceiving 1919) R. requiring S. county collector, immediately after re- book, give the tax to place notice of the time and he will meet the taxpayers and receive and collect their taxes and to attend at the timé and place to them, receive and directory, collect give and failure to the notice upon or place attend taxpayer does not paying excuse the from tax levied his land penalty delinquency, relieve him of the though, even delinquency, pays after levied, he only the taxes and the suit is penalties. for the specifically Other sections declare that the taxes become delinquent year after December levied, being 31st of the in which and there declaring they no statute delinquent only become after notice or de- mand, purpose the intent or requiring of the statute notice and attendance is to prompt orderly assist or facilitate the and collection of the is not to be stumbling-block way construed aas hindrance and of a speedy collection. Supplied 2. APPEAL: Abstract. An by Supplemental Tax Book: Omitted from Abstract: objection by appellant the levee district failed to delinquent make out a ease in its suit for taxes because the tax book was not (Sec. 4621, 1919) introduced in be requires, evidence as the statute R. S. will abandoned, where, appellant’s failing considered abstract to show the evidence, respondent supplemental tax book was offered in files a ab- original stract which shows that tax book was offered in evidence at incorporated exceptions, ap- the trial and that it was in the bill of pellant question supplemental does not .the correctness of the abstract. Penalty. power levy LEVEE 3. cludes the prompt TAXES: in- to assess power adopt to such measures as will make their collection effective; by tax while it is true that the installment levied improve- a levee district is in the nature of a ment and assessment for a local strictly impost governmental a tax or for revenue or levied is. levy purposes only, its assessment is nevertheless referable to the tax- ing power part providing of the statute for levee upon pay the lands of the district to works and the assessment of benefits levying Legislature properly provided for and collection for them the pay penalty installment before a fixed date of de- for failure of a linquency. Equal Penalty Per Month: Due Process: Pro- of Two Per Cent -:4. imposing upon the landowner a of two The statute tection. cent fixed installment tax the date a levee before his failure to month for deny him due by does not it becomes law equal protection the laws under either the State or process Federal alty law or arbitrarily impose pen- may appear although Constitution, regardless district and regardless needs of the upon him giving opportunity therein, an him be heard without lands benefits penalty. unreasonableness show the otherwise court or deciding, Assuming, without ihat the Fines. Excessive -:-: 5. word declaring imposed” Article of the Constitution 25 of in Section used “fines” required, fines nor excessive not be bail “excessive non-payment of taxes when imposed for the statutes applies to pa.y an installment for failure to month two due, unreasonable, un- date is not so a fixed before district a levee levied tax meaning within the excessive confiscatory considered as to be just or St. FRANCISLevee District Dorroh. the word as there used. be excessive in that To sense it must be so flagrantly oppressive disproportionate to the benefit as to constitute an Legislature abuse of its discretion. Monthly Penalty: Special pen- long 6. -: Two Per Cent Interest Law. The *2 alty as terest, by required of two statute to be added each month so by a delinquent unpaid tax levied a levee district remains and is not in- provision prohibiting and the therefore the the Gen- Constitution Assembly passing eral “fixing from a law of in- local the rate application terest” no to the statute. Penalty. declaring 7. TITLE: Levee Act of 1913: Taxes: A title that the repeals designated existing pertaining act certain articles the law organization, levee districts and their a in and enacts new act lieu single, general act, expressing purpose is misleading, payment and while is not imposing and if the act contains a section a for the non- ancillary of levee taxes such section is not inconsistent with title, though “penalty” the word is used therein. judgment 8. JUDGMENT: Erroneous Default: Petition Confessed. A by against plaintiff reciting petition that “it is ordered court that the confessed,” ap- reciting parties that the defendant be taken as peared, but further up and cause taken and submitted to the court for trial that the was by default, evidence, and the the court is not a heard stating petition as is as should be treated clause taken confessed surplusage. against In a suit Commission: Costs. LEVEE TAXES: Collector’s Suit: 9. county delinquent a taxes commission a landowner collector collect levee against delinquent as in the costs landowner cannot be taxed the de- two cent for a case. He linquent entitled retain commission 4619, (Secs. 4616, meaning collects, statutes taxes but he commission, penalties are 4620, 1919), taxes and when the is that his R. S. against collected, charge the district. ais brought Attorney’s a levee In a suit Taxed Costs. 10. -: Fee: penalties, delinquent against taxes and levee a district landowner attorney alone, who penalties a fee favor reasonable equal costs, may to ten and a fee brings the amount taxed as the suit unreasonable. is not and of the tax Judgment. which rate of interest The -: Interest 11. cent, may and not six bear is and taxes ten cent. delinquent levee Judgment against In a suit for All Tracts. -: 12. each, forty twenty acres separate land of tracts of levied penalties a the taxes or aggregate making taxes, judgment for the is erroneous. tract each special lien only upon particular tract a lien constitute can penalties and costs levied.” taxes are “against 2089, p. Error, J., Appeal Section 4 C. and Juris-Cye. References: Corpus 21; 926, 1177, p. Law, J., n. 12 Section C. 407, Constitutional 97 New. n. Penalties, 25 C. Fines, 34, 35, Forfeiture's 1264, 1064, 36. n. p. Section Interest, 1180, New; 75, p. 33 23. n. 1152, Section 10, 79 p. n. , Section J 196, 418, p. J., n. Judgments, Section C. Control, 228, 113, n. 89. p. J., Section C. 53, J.,C. Section and Flood 506, 75; Levees 804, p. 63. n. Section New; 1023, 72, 47; p. n. 20 1016, 55, p. n. Section 27; p 1015; Section n. Statutes, Cyc., 1026, 80, New. p. n. 74 24; Section 73, p. n. Section 43, 45, Cyc., 46. Taxation, p. n. 25. 13; p. n. 1026, n. p. Judge. Henry Riley, G. Circuit Court.—iHon. Pemiscot from Appeal op Supreme Missouri, Vol. COURT directions). (with ANDremaNded Reversed appellant. Hope Shepard Hope & fox* G.C. penalty; strictly one enforce
(1) canse of action Plaintiff’s by plaintiff in order everything- necessary done therefore, to be affirmatively appear must in default from place the defendant “that the Collector Plaintiff, petition stated record case. prescribed time and in the manner within the of the Revenue county of taxpayers said the time give did law, notice to place them to receive their he would meet when where places and, therewith, attended such times accordance of said install- did the defendant thereafter demand of R. 1919. The con- provided ment Sec. evidence tax,” S. plain- clusively- allegations nor the shows that neither the statute Cyc. petition 1358; Lumber complied tiff’s with. Nat. Co. were 784; Rennien, Burrows, 153; 284 W. Ti-immer v. 141 Pae. Miller S. *3 City (21 67; v. State, Gayle, v. 173 Nat. Bank Pac. 552. Pae. 155 relating The is “directed and ordered” collector statute 1919) (Sec. R. 4617, levee taxes S. “to demand and collect such taxes at the same time that he demands collects state and county, properties.” taxes due on the same lands and The collec- give required by only tor not failed to the notice 12900, Section but notwithstanding imperative mandate of tax law to de- any mand. the he made no demand of sort defendant alleged for requirements levee taxes. Such in a tax precedent conditions fully are which must strictly be complied taxpayer with before the can be assessed with penalty. 37 Cyc. p. 1544, Cooley 34; Ed.) c and on (4 Taxation 1273, secs. Cooley 2 1396; (4 Ed.) on Taxation 511; Paving sec. Co. v. Peck,-186 506; Lagroue Mo. 48 Rains, 536; v. Mo. Perkinsom v. M¡o. Sebnaake, App. 255; 108 Joseph St. v. Forsee, 237; 110 App. Mo. v. 74 McManus, App. Early Stifel Mo. 558; S.) Doe, (U. 16 How. 1079; 14 L. Ed. Chanton v. 22 Speai-, (3) Vt. 388. In actions to penalties pleadings recover are construed with the same strictness Cyc. (4) that indictments are. 1352. The against that should be property assessed owners for failure to timely pay their taxes is within the discretion of the Legislature, within rea- sonable 37 Cyc. (5) limitation's. 1542. Penalty, when against assessed a property owner for failure to promptly pay his taxes, is synonymous with “fine,” and the declaration in the Constitution that “fines” be excessive a question makes it the court to decide whether, particular under the facts of the case, the penalty sought to be en- forced excessive and provision violative of this of the Constitution. Sec. Art. 2, Constitution; Mo. Ry. State v. Co., "W. 78. S. St. v. Dorroh. Levee District FRANCIS for interest thereon court calls by tbe entered (6) The gen- aas This is error because annum. per per rate of ten cent at the (4 Ed.) Cooley on Taxation interest. bear do not penalties rule eral App. 355; Cumber- Co., Mo. v. Howe Scale 2541; rel. p. State ex interest were allowable on 668. If 92 Mich. Ry. Co. v. land annum. per per six cent never exceed judgment, it should such 468; 168 Mo. St. Louis Co., App. Parkview Inv. Paving v.Co. Granite Gibson, App. (7) 110 Mo. 243. Joseph v. 44; Allen, 53 Mo. plain- in the allowance of erroneous fee is further The authority in law for an at- is no attorneys, because there tiff’s penalty; two cent month torney’s is for the fee. The suit only collecting that an at- It is the taxes for. taxes sued no costs. Sec. R. S. 1919. torney’s allowed taxed as fee can be additional and not attorney’s is an recoverable fee The statutory governed by provision therefor. It is plain absence implication. They “penalties are never extended must rule they expressly imposed or cannot enforced.” Elliott v. East Co., (8) 99 IT.S. 573. For the same reasons the allowance in Pa. county (9) judg- collector is error. $4.05 on its in that it adjudges aggre- further erroneous face
ment penalties for gate years amount of the two both twenty 1921 to be a lien each of the different tracts (10) Allen, 53 of land. St. Louis v. Defendant’s declara- Mo. declaring that legislative tion assessed enactment creating plaintiff district unpaid of two month unjust due the is unreasonable, district and confiscatory, and ‘‘ permitted plaintiff should not be to collect the penalty, and that finding of the court should be for defendant,” should have been given. The assessment the defendant’s land' for the benefit of plaintiff not, tax, in fact, district is but is a betterment assess- *4 ment, per of penalty the two cent per month, arbitrarily assessed by Legislature against delinquent the all landowners within the dis- trict, is harsh in extreme, the of doubtful propriety, even more rigorous penalty than against assessed taxpayers delinquent county (11) their state and taxes. No provision constitutional au- penalty by thorizes the Legislature assessed in behalf of the levee It nothing district. leaves judgment of officers the dis- trict, or forming to the people district, but says arbitrarily there must be all delinquent collected on assessments two cent per month. There times when such a penalty is confiscation.
Ward respondent. & Beeves for
(1) There is no merit in appellant’s contention that the collector give did not taxpayers notice to the of county of the time and 316 Mo.—26. op StjpRemb 316.
402 Missouri, Vol. Court them to receive their taxes. place would meet where he when general laws revenue of the State required Such notice county application no taxes, and of the State and the collection did But of revenue of the collector levee taxes. if the collection take duty respect, the defendant could not in that perform fail to he knew that his taxes were due. advantage fact, since Secs. (2) judgment may ir- 1919. The case be 4617, 4618, R. S. objection judg- no the form of the defendant made regular, but trial, neither did he file a in ar- motion for new motion ment in his irregular, if provides judgment. rest of If only a matter law it should six interest, ten when as cent modify the interest, then this court will without remanding rel. v. reversing Stephens, the case. Booneville ex 4621, attorney’s proper. Mo. 359. fee was Sec. The 1919; Drainag’e County, (3) v. Bates W. R. S. Dist. S. 949. month two on taxes 1919, prescribed by 4618, Sec. R. is not S. unconstitutional. Seaboard 62; Woester, Nat. Bank 176 Mo. W. Co. v.-Indiana, v. U. Tel. 165 U.' Blodgett, 304; 647; S. Trust Co. U. S. rel. Bankers State ex Ry. (4) 178 S. Co., W. 444. The amount of to be assessed delinquent taxpayer is with discretionary Legislature. 1542; Cyc. W. U. Indiana, (5) Tel. Co. v. U. S. 304. act This liberally should 4650, 1919; Drainage construed. Section R. S. ~W. County, Dist. v. Bates S.
SEDDON, recovery C. This is a for the suit the annual install- (or, particularly, statutory ments of levee taxes more penalties non-payment accruing by reason of the said annual installments delinquency dates thereof) levee taxes the several before for the years 1921, 1920 and levied assessed twenty separate parcels of land, tracts or distinct owned ap- defendant and to enforce the pellant, and liens accordance with pro- 28, requirements Chapter visions and Article Revised Statutes July, paid principal 1919. In the defendant of the annual delinquent, installments said then but refused statutory had accrued thereon after respective said dates installments. The instant suit was brought balance, or penalties, to recover due said installments of levee taxes. dispute no There is as to the facts. Plaintiff (respondent) is a
public organized corporation, and existing under virtue of provisions Chapter Article Revised Statutes 1919. De- *5 duly were charged lands assessed and fendant’s with said and the annual thereof. installments Prior September 1, 1920, supervisors plaintiff the board of levee district duly determined, Dorroit. Eevee District St. FeaNois tbe lands, respectively, against defendant’s and levied ordered, year for tbe of tbe levee installment annual amount tbe install- annual duly certified said $194.90, and aggregate sum of in tbe collection, County for of Pemiscot of Revenue Collector ment to tbe duly deter- supervisors said board prior September 1, and, respectively, tbe lands, against defendant’s mined, and levied ordered, year 1922, taxes for the the levee annual installment amount of tbe in- annual duly certified said $194.90, and aggregate sum of in tbe for collection. Tbe installment of revenue stallment to said collector lands, for tbe respectively, against defendant’s and assessed levied year thereupon and 31st of that unpaid on December year 1920 was month from penalty of two bore became and likewise tbe installment paid; until said' date of lands, respectively, for tbe against defendant’s and assessed levied year thereupon 31st of that year unpaid on. December was two month penalty of delinquent and bore a became paid. 4618, R. S. delinquency until 1919.] from said date [Sec. tbe Collector of Revenue July 28, 1922, paid to On defendant years County of said installments tbe principal tbe Pemiscot aggregate $389.80, but refused to amounting in tbe aggregate penalties thereon, which then amounted to tbe tbe accrued this action was which latter $101.33, sum to recover brought. Defendant, by answer, petition form. his
Tbe is in conventional allegations petition, and asserted that said generally denied unjust confiscatory, and in contraven- unreasonable, are designated of tbe Missouri and Federal Con- tion of certain sections jury. stitutions. was tried to tbe court without tbe aid Tbe cause presented requested a evidence, At the close of all tbe defendant overruled, whereupon evidence, which was defendant demurrer tbe requested law, number, presenting certain declarations of nine de- raising theories of defense and tbe several constitu- fendant’s several by questions, refused tbe all of which were court. There- trial tional upon judgment.in plaintiff favor of tbe trial court entered in tbe fol- lowing form: day plaintiff by Ward,
“Now at attorneys, comes tbe herein person & Oliver, attorney, Reeves and tbe defendant plaintiff announcing and tbe Sheppard, C. G. both defendant ready waiving right trial, and each tbe of a trial jury, aby the, up this cause taken and submitted to court for trial.
“Wherefore, petition it is ordered tbe court that the plain- tiff confessed, singular defendant taken as and all and petition plaintiff matters contained in tbe tbe submitted to court, hearing tbe testimony, and tbe court after tbe doth find that the defendant is tbe owner the real estate described petition, tbe *6 op MissouRi, Von. SUPREMECOURT unpaid de- are due find that there doth further
and the court thereon, tract of fol- including the taxes, interest on each linquent County, Missouri, estate, in Pemiscot situated lowing real described tract, each viz: follows opposite years for and amounts set [Here the twenty separate land and the descriptions of of tracts separate each and distinct penalty due tract.] tax or of by adjudged and decreed court ordered, it is “WheRefoee, special from the plaintiff have and recover said defendant that the thirty-six hundred and judgment for said sum one one aforesaid, as so found the land with costs hundredths dollars due judgment that this shall draw ten cent interest suit, and from further, that there levied and the rendition collected case, in this Collector, as other costs four cent commission Ward, Oliver, plaintiff’s attorney’s attorneys, and for & an Reeves collected, fee ten cent of the herein áforesaid costs are lien and respectively, land as described, said tracts of hereinbefore and that plaintiff have execution therefor.” involving
The cause the construction Constitutions United States defendant was properly allowed an appeal to this court. urges Appellant
I. that the evidence discloses that the Collector County give Revenué of Pemiscot failed to statutory notice to taxpayers county said place of the time and when and where payment he would meet them receive of the installments of the taxes, levee and did not demand of defendant the Notice: of said installments of levee taxes. He that, insists inas- Directory plaintiff’s much as strictly action is one to a penaty enforce Statute. non-payment due, of the installments when and inasmuch by law, are not favored every therefore required act to be done plaintiff, charged officers with the collection the levee or annual installments thereof, in place order to defendant in default affirmatively must appear from the record in the cause. The Collector Pemiscot County testified : “Q. Kersey, Mr. as collector of the St. Francis Levee District, did you give taxpayers notice to the within the district you would places meet them at certain at certain times for purpose of col- lecting No, sir; these A. taxes? he here [defendant] lives and it necessary. was “Q. gave taxpayers You no notice owning land part the district county you embraced in this would meet them places certain times and at certain purpose of collecting these No, levee taxes? A. sir.” v. Dorroh. Levee District FkaNCis provisions upon the relies contention, appellant support of his Statutes 12902, Revised 12900 and requirements of Sections statutes sections pertinent portions of those 1919. The
follows: each of revenue duty the collector It shall be
“Sec. 4617. or- district property of county lands or other in which ‘levee tax-book’ situate, receive ganized under this article are *7 duty, his be and it shall hereby empowered year each and he is out and to exercise therein set faithfully the tax promptly and collect and ordered is further directed diligence doing. in so ILe all due that he demands time taxes at the same to demand and collect such and other due on the same lands county and taxes and collects state properties. ... . of revenue of duty collectors of “Sec. It shall be the the. the immediately receipt of after counties of the several twenty give not less than respective counties, to
tax books of their tax- will they at meet days’ place the time and notice of their payers respective counties, and collect receive of their up at least four taxes; given posting written said notice shall municipal parts township of each printed handbills in different or newspaper, counties, weeks in by publication in for two said in- notify county, in in which he shall said published if one be respective town- places in their the collector at such habitants to meet .days (not less may therein, and the number of ships as be named purposes three) places such that he remain at each of than will place aforesaid; at time thus duty and it his to attend shall be either, collect, such deputy, receive appointed, person or from visit- county may relieve the collector Provided, the court taxes: of, county by an record to any township order ing municipal his ’’ given. is provisions of this section notice under the be made before County Court of Pemiscot (The shows no order of the record herein relieving collector from an observance County of record section.) provisions the aforesaid of taxpayers township of in said 12902. The each counties
“Sec. place appointed time and sxich shall meet such collector due them.” may such taxes as notice, and taxes, or annual 4618, Revised Statutes Under Section delinquent 31st of the thereof, become after December .installments levied. Under Section year said taxes are Revised for which county taxes become after the state Statutes January ensuing levy day next after the such taxes. .Thus first delinquency taxes, date of of levee or appears annual it coincident, practically so, or with the installments county delinquency passing, might, state and taxes. it date of such levee that the date of annual be noted op Missouri, Vol. 316. SUPREMECourt statute, definitely by the precisely and fixed thereof, is installments giving any notice to dependent upon the whatsoever payment of such upon him taxpayer making or the a demand challenge appellant does not might also taxes. It be stated special made validity benefits of the assessment of herein challenge validity the levee respective lands, nor does he assessment) levy (based upon benefit recognized thereof; fact, apparently he annual installments validity by said annual making payment principal their installments. respective have not parties
Learned counsel for the
herein
directed
court,
our attention to
decision of
or of the several courts of
appeals, construing
particular
sections of the statute above cited
upon by appellant,
and relied
we
and we ourselves find none. While
mandatory
are aware that similar
to be
statutes have been held
yet
jurisdictions,
persuaded
few
we are
that the above cited sections
directory.
merely
court,
long
our own
statute are
This
line
decisions,
other,
similar,
has held that
and somewhat
sections
merely
our
directory,
taxation
revenue
when
is shown1that a valid
assessment has been made and entered
*8
161;
tax-books.
ex
Bank,
v. Chapin,
rel. v.
120 Mo.
[State
Thomas
396;
116 Mo.
Hutchinson,
399;
ex
State
v.
116
v.
rel.
Mo.
State ex rel.
Phillips,
259;
137
Bank,
381;
Mo.
rel.
144
State ex
v.
Mo.
and State
Carr,
ex rel. v.
books, jurisdiction
only
attaches
proceedings
and the rest
are
directory.
principle
The broad
announced
[Citing authorities.]
underlying all
is,
of these cases
when a
shown,
valid assessment is
entry upon
its
the tax-book and
property-owner
failure
due,
to
it when
good
out,
cause of action is
all
made
requirements
proceedings
other
are mere formalities and intended
to assist and facilitate the
taxes,
collection
and are not in
stumbling1
tended to be
blocks and
way
hindrances
thrown
of a
speedy collection of them.’’ To like effect is
Dungan,
State ex rel. v.
In Noland v. Busby, Ind. a somewhat similar was statute held to merely directory. be Said that court: “The statute makes it duty of the receipt treasurer on duplicate, forthwith, to posted ‘cause notice to up be door, the court-house and in three public places other county, and to pub- cause the same be lished in newspaper some having general in his county, circulation any be,' if there successively, for three weeks stating in such notice the amount of charged tax state, county, school, road or other purposes, on each one hundred dollars valuation of prop- the taxable v. Dorroh. Levee District St. FRANCIS pur- county and state, other poll for tbe tax on each erty; and also made of the been levy had If a assessment . . valid poses. . in the hands placed made out duplicate thereof proper and a notice would give the collection, failure to of the treasurer That, subsequent collection. prevent tax, or invalidate the only regarded statute, can enjoined duties various other like would not officer; neglect give directory ¿lotice ’' thereof. collection obstacle to the discharge tax, present or a valid merely our statute sections of that the cited Our conclusion Stat- think, by 4650, Revised Section directory strengthened, we pro- Law), which District Art. the Levee (Chap. utes in character hereby to be remedial “this article is declared vides that carry- by the courts liberally shall construed purpose, purpose,” and Section ing legislative intent and out revenue, which on taxation and 1919, of the Revised Statutes any any officer or officers provides: “. . . nor failure of shall day or within the assigned them, perform duties him or any proceedings.” specified, work invalidation of time As given thoughtful the cases—Barber ¥e have consideration to McManus, Mo. Paving Peck, 506; Stifel v. phalt Co. Mo. Joseph 558; App. 255; and Schnaake, 108 Mo. App. Perkinson support Forsee, by appellant App. ex rel. v. Mo. 237—cited thoughtful reading A those de careful and his contention. ordinance, construed cisions, however, statute, or discloses specifically prescribed that the each of those eases said, the stat only Here, run from the date demand. as we have tax, prescribe ute does not that the date of of the levee days after, begin at, or many annual installments so demand, but, hand, the statute the time of notice and on the other specifically precise delinquency. names the date purpose, intent,
¥e are inclined the view that the cited prompt and sections of the statutes is to assist and or- facilitate derly benefit, rather than to afford a con- collection of *9 taxpayer. Hence, venience,' protection or we think that the merely directory, appellant’s cited sections of the statutes are against him. contention must be ruled Appellant plaintiff contends that a
II. failed to make out case by plain- because the levee tax-book was not introduced in evidence (Sec. 1919) provides 4621, tiff. The S.R. that “the ‘levee tax-book’ of district, as returned the collector of Supplemental secretary supervis- the revenue to the of the board of Abstract. prima-facie ors of the levee district shall be evidence contained, all of all matters therein . . . and in courts probative aforesaid ‘levee tax-book’ shall have the same effect as op SupRemb Vod. Missouri, Court has in the State’s the back tax bill actions for tbe enforcement of general appellant’s real It is that lien taxes estate.” true plaintiff the levee abstract of record does not show that introduced in has filed However, plaintiff (respondent) tax-book evidence. plaintiff supplemental abstract, a it is that of- herein wherein shown evidence, original trial, fered St. Francis Levee District years 1921, respectively, 1920 and and that tax-books tlfb exceptions incorporated same were in the bill of filed the cause. Appellant questioned respondent’s supple- has not the correctness of as abstract, appellant’s mental we will contention therefore treat abandoned. Appellant (Sec. 4618,
III. contends the section of the statute 1919) R. imposed S. under which the is unconstitutional it because contravenes Constitution of Section 30 of Article of the
Missouri, provides “that person which no shall deprived Due Process: life, liberty property or without due of Equal Protection. gection iaW;” Article of the of of procesg provides States, to the Constitution of the United Amendments any abridge that “no make enforce law which shall State shall or privileges States, or immunities of nor shall citizens United any any person life, liberty deprive property of or due State without process (4618) complained part law.” The section a of is of chapter, law, pertaining levees, to drains and and reads as follows: provided unpaid taxes for in remaining “All this article De after year 31st cember for which said taxes were levied become bear of two cent month on the paid. said from date of until com puting part said each fractional month shall be counted as a month.” full early Eyerman Blaksley,
In the 145, case of Mo. was con- ,a section the then city pro- tended charter of the St. Louis, viding evidencing that a tax bill an assessment for local improvements “shall be and property become lien on the charged may therewith, collected of land, owner contractor, any of and claim, name other court the. competent jurisdiction, with interest at the rate of ten annum, days thirty after from demand its payment; and if not paid six such demand, within after then at months the rate of fifteen ’’ per annum from date of said demand, was unconstitu- being tional in conflict with Section Article of our State Con- this court in that stitution. Said case: “Nor is Section of with charter conflict Section Article Constitution, person which declares ‘that no deprived life, shall be liberty ’ process property due without law. The provi- substance *10 v. Levee Distbiot Doeeoh. Fbanois city State, and law this organic always part of sion has been Assembly for assess- providing General of the ordinances acts have question, ordinance similar to the improvements, ments for pro- . . . repeated of this court. upheld been decisions tax fifteen allowing bill the holder of the vision of the charter within six bill be not made payment cent if of the tax per annum, refused, is of the'nature of months after demanded is annum a at ten penalty. It Interest is interest. although the previously provided for, and fifteen had been contingency, is in a certain denominated allowed the ordinance im- reality prompt payment, to secure ‘interest,’ penalty it is in corporations posed municipal neglect duty; have the prescribe neglect power penalties for or refusal to reasonable by a discharge any duty imposed upon a citizen valid ordinance. ” Tipton Norman, v. Mo. [Town 380.] Appellant’s penalty provision theory that the levee dis process trict statute of law’’ sections our violates “due Con arbitrarily' stitution the Federal Constitution inflicts imposes or penalty upon taxpayer landowner and regardless requirements the needs or of the levee district and re gardless therein, giving benefits without the land lands opportunity court, owner an appear or before the board of su pervisors district, of the levee show the unreasonableness of the penalty, penalty and that therefore such should not be enforced as a lien words, appellant In other lands. contends that the penalty nothing section of the statute leaves to the officers district, district, levee or to the landowners but the Legislature, enacting arbitrarily section, de prescribed termined linquent there must be collected a on all de
levee or thereof. While it is true that installments tax levee special of a nature assessment for a im local provement, and in strictly is not impost sense tax or levied for governmental revenue purposes only, imposition nevertheless tax taxing assessment is power referable and au thority power authority primarily rests in the Legislature. [Ranney Girardeau, v. Cape 514; City Mo. Kansas Bacon, c. 282; Mo. l. Farrar 379; Louis, v. St. Mo. City of St. Louis v. Ranken, 96 500; Mo. l. c. City Schwab Louis, of St. 274 S. W. l. c. taxing Legislature Pursuant power, 1062.] has enacted the levee statute, district providing comprehensive for a method for the determination acquiring of the cost and condemn ing lands and constructing the levee works and improvements, the assessment of benefits to lands the district reason there of, and the levying of a or assessment, tax and annual installments original for the cost and maintenance of such works *11 Terni, Supreme 316. Missouri, Vol. of Court Legislature statute, of the part a such As improvements. aof imposition and collection the provided for think,
properly, we should within the district a landowner in the event penalty thereof, duly levied tax, or annual installments pay fail the levee the fixed date of due and before against lands, when power taxes includes the levy and assess power to thereof. The n adoptsuch measures prompt and effec- their collection as will make Cyc. tive. 1542.] [37 Assessments, by Special Local and Page and Jones on Taxation In say: compelling prompt of “As a means text-writers Section the may provide penalty that a Legislature payment of the assessments non-payment of the assessment case shall be added to the text, Eyerman Blaksley, 78 Mo. citing, support thereof,” Allen, City use, v. 53 Mo. 145, and of St. Louis to 44 N. In- State, E. In Western Union Tel. Co. that, telephone, express, or other diana, .providing telegraph, if pay it, a tax and an corporation like refuse levied shall brought the the action therefor be include fifty per amount of as penalty tax, cent of the was attacked Supreme being “Ap- unconstitutional. Said the Court of Indiana: pellant particular complaint fifty penalty pro- makes ... pay vided for in suits under the statute. No one need penalty except through wrongful government his own act. The is in revenues, paid need and these will promptly be revenues good all comply citizens. case of failure to with duty, such penalties will, will imposed lawmaking power, compliance compel best with case, the law in each to the end property may that all the owners of the State equal bear their share public penalties, Such seen, burden. we have are never imposed upon those that their due; taxes when imposition being part an effort on the penalty compel of the lawmakers to good citizenship part on the all taxpayers, may that none shirk duty.” the common
The last-cited case went to the United Supreme States Court on (see writ of error Telegraph Western Union Indiana, Co. v. 165 U. 304), S. Mr. wherein Chief Justice Fuller, speaking for that court fifty said: “Whether the penalty clause of the Act of 1893 contravenes the Constitution of the question United States is pre- sented on this writ. If it not, question does whether that properly was included in rendered the tele- graph company was for the determination of the state courts. . . . The amount was a matter for Legislature to de- termine in its discretion, and Supreme Court imposi- refers to the tion in other Indiana, instances under the statutes of varying according particular subjects of taxation, apparently District v. Dorroií. FRANCis Levee . We . quiteñas much harshness. . operate with calculated Constitu- holding the Federal any ground unable to discover the Su- which agree in the view law, and violated tion was premises.” expressed the State preme Court of discussing text-writer, ap- Corpus In 12 Juris says: law, process guaranty of due plicability of the constitutional it is com- enforcing of assessments purpose “For they liens provide that shall constitute petent Legislature to for the may pro- Furthermore, they are levied. on the lands on maturity an additional paid vided that if the assessments are *12 may sold and the assess- that lands be penalty accrue, and the proceeds.” paid ments from the 325, it held 103 N. E. Railway Schmuck, Ind. is Co. attorney’s in an to enforce an fee action providing
that a statute within unconstitutional, not payment assessment is the of a sewer Constitu Amendment to the Federal purview the the Fourteenth of Constitution, depriving Indiana as tion a similar section and law; and, in property process without due of land of his owner 134 Pac. it is held that a Ritterbusch, 38 Okla. Shultz v. eighteen annum for penalty per a of cent providing for improvements is non-payment for street when due of assessments constitutional. statute, prescribing in opinion
We are that the levee-district imposing penalty delinquency in levee thereof, deprive or annual installments does not the landowner and property process law, without due taxpayer of hence does not 30 of of our contravene either Section Article State Constitution or to Federal Article of the Amendments Constitution.
Appellant prescribed penalty claims two delinquency month after the date of tax, or annual unreasonable, unjust installment confiscatory, is is violative of Section- 25 of Article Constitution Excessive Fme‘ provides 0f this which that “excessive bail shall required, nor imposed, be excessive fines nor cruel and punishment It unusual inflicted.” is claimed that “pen- the term alty,.” synonymous in statute, used is with “fine,” the term in as used the aforesaid section of our Ordinarily, Constitution. applicable aforesaid section of is pros- the Constitution to criminal ecutions, gwcm-criminal proceedings, or and the word “fines” as used punishment therein is referable to the law violator inflicted prosecutions such proceedings. or di- Appellant, however, has rected our attention to certain jurisdictions authorities other seemingly hold that the term “fines” as used a similar section Constitutions of those applies penalties imposed by states to statute for non-payment therefore, of taxes Assuming, when due. Yol. Missouri, SUPREMECourt of our Constitution deciding,
without that the section State cited applicable question, to we do not deem the levee statute here spirit penalty or prescribed within the therein to “excessive” letter of the Constitution. Corpus
In 25 of a Juris, is said: “The amount to 1180, it and it Legislature, inflicted rests in the sound discretion of the only flagrantly prescribed by oppressive when the minimum statute is disproportionate imposed that the to the offense for which it is courts will enactment.” interfere refuse enforce the
So, Cyc. levy power it is said: “The and assess taxes power includes adopt will collec- such measures make their tion prompt always regard effective, having requirement process law, authority impose of due and this includes the delay justly refusal to due and for con- cealing property seeking taxable or otherwise to obstruct defeat operation laws, penalties being amount of revenue Legislature, the discretion of the within reasonable limitations.” unwilling say Legislature,
We are in prescribing of two month after of the annual controversy, installments levee taxes in discretion, abused its say toor penalty prescribed flagrantly is disproportionate, oppressive, confiscatory. unreasonable, or Appellant claims that said section the statute Sec- contravenes *13 53, tion 4, Article of provides, the Constitution of this which section, subdivision Assembly of said that “the General shall any pass special not or law: fixing local . . . the >> Special Law. ra.¡.e intereS£_ However, it is 0£ clear to our minds that the of in question attempt section the statute does not to fix a rate interest, prescribes imposes, purely solely, of but a penalty. Woesten, Bank 49, In Seaboard v. Mo. court, National en this banc, of St. allowing held that a section the Louis charter recovery a per per annum, interest if a of fifteen cent taxbill evidencing a local demand, paid is not within after assessment six months does not con 53, 4, travene Section Article our Constitution. of We then said: “Having thus reached the conclusion that the fifteen cent ais penalty and not interest, the constitutional contentions drop out of case, they upon depend the the of postulate existence the first that interest, penalty, is If it not but prohibition it interest. is a the of 53 of of Constitution Section Article the power the Assembly pass local special General to or law ‘fixing rate application. interest’ no And the same is as true to prohibi passage special of a local or law, tion general where a law (cid:127) applicable. . . power could be made . The same gives that a right penalty to impose a one cent a State month for failure gives city right general taxes, Louis the pay St. under its Fe ANCis Levee District Dorroh. quarter penalty and a cent a month impose a of one charter to therefore, the As, benefits. a assessment of for failure interest, which and not the foundation imposition penalty is a wiped is ...” questions rested out the constitutional Ritterbusch, 494, 38 Okla. l. c. that court said: So, in Shultz ‘that, made . . rehearing, “On is so far as the contention . authorize, a authorizes, purports this or the collection of greater bears, is, rate of interest than the bond on face maturity, until seven cent each assessment from date ’ eighteen per maturity paid, contrary from until is cent the same ‘ 46r, Legislature Constitution, art. sec. which reads: The except not, provided pass any in this Constitution, otherwise local special law fixing . . . the rate of Not interest.’ As be so. property tween the bondholder and the owner these assessments are contract, species founded on but are a taxation, not can and hence eighteen per not be said to a Neither is this interest, be debt. such, penalty prescribed discharge imposed but a duty failure to And, may added, law. the same power gives the State right to impose non-payment general penalty eighteen gives right impose penalty cent as a for the non-payment when of these assessments due. ... that, It follows being interest, imposition eighteen per not Constitution, conflict with art. 3, fixing secs. the rate interest, but is valid and enforceable.” appellant Lastly, statute, contends that the legislative act, un- is imposed, der which violates Section 28, Article Constitution, provided our State wherein it (except “no bill bills) certain excluded shall contain more than subject, one Title, ” s]ian clearly expressed in its urged title. It is question the bill or statute here in contains subject more than one subject-matter and that the clearly of the bill is not expressed in its title; that no is made in the mention title of said bill as to penalties, fines, for non-payment or interest of levee taxes. (Sec. The section 1919) prescribing R. S. the statute the penalty is part of a Legislature regular bill enacted (Laws session 1913, p. seq.), 290 et the title which bills reads: “An Act to re- *14 (entitled 9 peal ‘Organization article levee districts circuit courts’) (entitled chapter 41 levees’) ‘Drains and of the Revised 1909, Statutes of Missouri of repeal to an act amending and adding 9, said to article enacted in 1911 and found on pages 231 and 239, inclusive, of the Laws of of 1911, Missouri and all sections there- in by designation, whatever and to enact a new act in lieu thereof, 9 (pertaining to be known as organization article to the levee dis- courts) chapter tricts circuit 41, said with an emergency ’’ clause. op (cid:127)Supreme 816. Missouri, Vol. 414 CouRT was wbicb act, an the title of 301 Mo. State v. Mullinix, In not review, was ruled under act now general as that of equally as In that above cited. requirement the constitutional violative of to be ‘‘ validity its not affect a title will generality of said: The case, we inis legislation which up or obscure tend to cover where does amendatory congruity is that to requisite A incongruous. itself part a consistent being made and admit of pertain to act always to been disposition of the courts amended. The to be law legislative salutary effect efficiency thwarting or evident avoid provision. constitutional interpretation by a liberal action (Mo.) Scott, 205 S. W. 76; Booth v. Railroad, Mo. [Burge v. held that frequently been it has in view With this end 633.] sought to section bar, reference, as in the case numerical subject-matter of of the without a statement be amended to exclusively an act which deals title to amendatory act, is a sufficient following cases The to be amended. subject of the section with the County Court, 128 Mo. v. ruling: State ex rel. of this are illustrative Hadley 112; v. ex inf. Heege, 135 Mo. State 440; ex rel. v. State 166; State 722; Murray, 237 Mo. l. c. State v. Herring, 208 Mo. l. c. 180; Helton, 255 l. c. 303; l. v. Mo. Imel, v. Mo. c. State ex rel. City, (Mo.) 188; l. c. Asel v. Jefferson Hutchens, W. parte Ex S. 204; Peery, 293 Mo. l. c. 234.” l. McCue v. Mo. c. said, Banc: “If we Roach, 258 Mo. l. c. we en In State ex rel. v. by muddy it would prolixity, seem that when
are not offend clearly general purpose title, an act is set then all an forth its (cid:127) cillary matters, germane general with not inconsistent necessary, necessary details, purpose which are order give carry purpose, and effect and without which out and life implication purpose fail, by necessary its would are to be read into the title of act. ’ ’ Gentry, Ferguson 206 Mo. c. said: l. we “We do not un importance Constitution; of this clause of our pur
derrate pose mandatory, is unmistakable and its tone is but it must not be given a hamper Legislature construction would in a faith intelligent containing ful and effort act a subject to embrace one pertaining legislative different features but all to the purpose, same ” Doerring, 194 Mo. [State 410.] question clearly The title of the act general indicates that the purpose repeal of the act is 9 Chapter Article of the Revised organization pertaining Statutes of districts courts, amendatory circuit and an act of 1911 said article, and to enact a new act in lieu to be known as Article Chap- said subject act, ter in our opinion, single, and, while general expressing purpose the title act, it cannot be misleading, said to and it appear, would from a reading of the *15 Dorroh. Levee District FraNcis non-pay- imposing entirety, that the section act in- germane to, ancillary, taxes when due ment of levee act, general purpose subject and with, single consistent organization, respecting the comprehensive law provide a which is to by circuit organized levee districts and maintenance of support courts. imposing Statutes find Revised
"We do not that Section taxes’,, of levee the amount month on of two paid, until date of or annual from installments the cited our contravenes the cited sections of State Constitution Constitution, assignment must section of and the of error the Federal against appellant. be ruled as,to Objections judg
IY. are of the made content form appellant ment as that the by entered the circuit court. It is said judgment by default, recites there upon its that it was entered face by by appellant ignoring up defenses the several set Judgment. jn j^g judgment answer filed. While the does recite against plaintiff “it is ordered court de- petition that the ’’ confessed, yet judgment fendant be taken as recites the: further appearance parties, up that the cause was and submitted taken testimony trial, to the court for and that the court heard the therein.. It is evident that the trial court did not de- enter by default, above-quoted fendant and the clause will be surplusage. treated us as mere defendant, case, taxes as costs a com
mission for the county aggregate collector of four cent on the judgment. Appellant insists that there authority Collector’s is no ruling in law therefor. this conten- Commission. ^on we mus^ adVert applicable to the statute to levee organized by districts courts, plaintiff brings circuit under which this action.
Section 1919, provides: Revised Statutes “The said collector shall retain for his services one centum the amount he collects on current two centum of the amount he collects delinquent taxes.” Section 4620 provides: “All provided levee taxes in this article,
together with all penalties for default same, all costs in collecting including same, attorney’s reasonable fee, to be fixed brought court and taxed as costs in the action payment, enforce shall, filing from date of the certificate hereinafter described in the officeof county deeds for recorder wherein the lands and properties until situate, paid, constitute a lien, only general the lien county, school state, State Missouxi,
SUL>REMRCOURT or VoL. 316. paramount, property road taxes shall be all the lands and other *16 provided which such taxes shall be levied as is in this article.'' provides: delinquent Section 4621 "In all suits for the collection of taxes, judgment delinquent for said taxes and shall also attorney's include all costs of suit and a reasonable fee to be fixed court, delinquent recoverable the same as the tax and in the same suit.'' statute, authority given As we read the there is no therein for the taxing of the collector's commission as costs in the case. Section 4619 per allows the collector to retain for his services ``two centum of the delinquent amount he collects on taxes." Section 4617 of the statute duty county makes it the of the collector of revenue of each in which organized lands of levee district under the statute are situate year receive the levee tax-book each and to collect the tax therein set out, required and said collector to "make due return of all levee year secretary supervisors tax-books each to the of the board district, pay the aforesaid and shall over and account moneys year for all collected thereon each to the treasurer of said pays county district at the same time when he over state and taxes." provided sjaall proceed It is further ``said collector to collect delinquent payment such levee taxes and demand therefor in the same provided manner as herein for the collection of current levee taxes.'' provides per Section 4619 for a of ten cent on the amount of his failure of the collector over tax, any part treasurer of the levee district collected by him, for which the collector's bondsmen shall be liable Obviously, ianguage official bond. in view of the of Section 4619 that the collector shall retain for his services ``two centuiu of the taxes, amount he collects on "taken in connection with ~the language above-quoted, of the other sections of the statute it was the purpose Legislature district, intention the levee rather taxpayer, compensate than the landowner the collector collecting penalties for his services the tax and thereon. The judgment taxing is therefore erroneous the defendant with the collector `s commission. - Appellant complains judgment costs, also because as attorney's place judgment him an fee. At one reads "attorney's fees, $20," controlling paragraph por but in the judgment ordered, adjudged tion of the it is Attorney's Fee. decreed . there be levied and collected arci, Oliver, plain as other costs in this case . . . for `N k~eeves& attorneys, attorney's tiff's an fee of ten cent of the attorney herein collected." An `s fee of ten cent of the amount approximate would the sum of ten or eleven dollars. (Section 4620) provides The statute that "all levee taxes . District v. Dorroh. Levee FraNCís same, all together mth all default fee, attorney’s including..a reasonable collecting’ same, costs hrmught to in the action taxed costs the court and he fixed upon which upon the lands a lien payment” shall constitute enforce (Sec. 4621), “in all levied, furthermore and, taxes shall be said de judgment for delinquent taxes, suits for collection suit and a all costs of penalty shall also include linquent taxes and "We think the attorney’s by the court.” reasonable fee fixed action, rea taxing, as costs clearly authorizes the regard air We attorney’s fixed the trial court. sonable fee herein attorney’s of the amount fee of ten judicial discretion reasonable, and will interfere with attorney’s fixing in that amount. the trial fee court in draw below, made to ten judgment, as entered judg rendition, *17 appellant from claims terest the date of its gen a penalties, It that respect. in that is said ment is erroneous judicial authorities interest, are some rule, eral not bear and there do for provides However, review to that effect. the statute under taxes entry judgment of a for the amount judg contemplates money penalty. a words, the statute other (Sec. money judgments regulating interest on all ment. Our statute 1919) money “Interest be allowed all provides: R. S. shall day upon any court, from of render any judgment due order of ing by payment, made accord or sale of the same until satisfaction be money contracts property; judgments upon and orders for all such same interest bearing per than six interest shall bear the more cent judgments orders contracts, borne such and all other money made, as per per six annum bear until cent satisfaction applicable aforesaid.” held to be The aforesaid statute been money recovery also judgments penalties, but it is held [City judgments only bear interest. such should six cent City 44; Joseph v. of St. ex rel. v. Allen, Louis to use Mo. 237; Paving Realty Co., App. 168 Mo. Forsee, App. Mo. Co. ten, purports bear judgment The is erroneous 468.] instead of from the rendi six, annum date of interest tion. adjudged Finally, urged aggre- it is that it is and ordered that costs,
gate together judgment, amount of the with taxable twenty special every judgment against sepa- lien and each and of the therein. think rate distinct tracts of land described We inspect. [City in that erroneous St. Louis use is 4620) Allen, (Sec. tax, Mo. declares the levee The statute 44.] together penalties all in payment same, with for default collecting same, including attorney’s all fee, costs reasonable upon “against constitute a lien the lands such shall be Mo,- 27, 316 — Missouri, CouRT Vol. SUPREME OK non-payment tax, due, when Clearly, tbe with levied.” single separately, and the lien thereof upon each tract land is levied single upon particular and identical no farther than extends against judgment' tax of land which the is levied. The rendered tract penalty thereon, tax, levied each for the sepa- separate tract, should such constitute lien each sepa- only from such rate tract to the extent of the amount due each tract, together six annum rate with interest at on the separate from Each separate amount found be due tract. each and distinct tract should bear one-twentieth of the amount the tax- including attorney’s action, costs of the able the reasonable fixed fee court, and of such costs one-twentieth the amount taxable separate should constitute a each lien tracts of de- land judgment. scribed' of the circuit court therefore reversed, and the is remanded with
cause directions to said circuit court to enter newa (as original herein of the date judg- entry ment) rulings consistent with our opinion. as stated in Lindsay. C., concurs.
PER CURIAM: —The foregoing opinion by SeddoN, C., adopted opinion the court. All judges concur, Graves, except J., absent. Pevely Dairy Company The State ex rel. v. Charles H. Daues Judges et al., of St. Appeals. Louis Court of *18 One,
Division December Appliances: 1. NEGLIGENCE: non-delegable Safe Vicious Mule. The duty ordinary master to use care to his furnish servants with rea- sonably inaminate appliances safe instrumentalities and embraces animate as well as things. It placed embraces a mule vicious in a stable where the required employer through owner’s hostler to work. An who whim or fancy keeps at premises kicking propensities on his a mule of vicious is bound peril employee protect discharge his to his who in the duties is range brought within the mule’s heels. Comparative Safety. 2. -: Where Vicious Mule: Instruction: Standards of charged negligence stabling was the of mule to known place employee performance in a where the vicious for of the duties employed exposed injury mule, he was was and the open employee that when the mule was in an stall evidence exposed danger arising was from the work in aisle mule’s vicious kick, propensities when the mule was in a stall but box he was ex- question danger, posed an which submitted the instruction whether permitting negligent open the mule employee to be an stall and in was erroneous, failing keep stall was not the matter the mule box