State ex rel. Curators of University of Missouri v. Walker

| Mo. | Mar 1, 1912

VALLIANT, C. J.

Relator prays a writ of mandamus to issue to respondent, the collector of revenue of Clinton county, requiring him to pay into the State treasury $1.74.69, being part of tbe money collected by him under the statute which imposes an inheritance tax, and which was paid out by him as compensation for services rendered by an attorney employed in the collection of the tax under the provisions of section 329, Eevised Statutes 1909. That section provides that: “In proceedings to which any county collector is cited as a party under section 322 of this article, the State Auditor is authorized, in his discretion, to designate and retain counsel to represent such county collector therein, and to direct such county collector to pay the expenses thereby incurred out of the funds which may be in his hands on account of this tax.” The relator’s contention is, first, that “the county collector was not cited as a party under section 322,” and therefore the condition under which the statute authorized the employment of counsel did not exist, and, second, the statute authorizing the collector to pay the expenses incurred for services rendered under such retainer is in violation of section 43, article 4, of the Constitution.

Let us first look at the statute and see what it requires, then turn to the facts and see if they meet the requirements. “Section 322. The probate judge of the court having jurisdiction of the estate of the decedent, upon the application of any interested party, including county collectors, or upon his own motion, shall, as often and whenever occasion may require, appoint a competent person as appraiser to fix the valuation of estates which shall be subject to the payment of any tax imposed by this article. Every such appraiser shall forthwith give notice by mail to all persons known to have a claim or interest in the property to be appraised, including the county collector of revenue, and to such persons as the probate judge may by order direct, of the time and place when he will appraise such estate or property.”

The section then goes on to direct how he shall proceed to make the appraisement, authorizing him to issue subpoenas for witnesses, etc., and report his appraisement in writing to the probate judge, with the evidence on which it is founded. The section then provides that for his services the appraiser shall be paid three dollars a day and his travelling expenses and witnesses’ fees, all to be paid by the county collector out of funds in hand derived from this inherit' anee tax.

The next section prescribes the duty of the probate judge in reference to the appraisement. The next section authorizes proceedings to be taken by the State Auditor if he believes the appraisement of the estate or assessment of the tax to have been fraudulently, collusively, or erroneously made, under which proceedings the circuit judge may appoint an appraiser, who shall possess the same powers as are given the appraiser to be appointed by the probate judge under section 322, and receive the same pay for his services out of the inheritance tax. The provisions of the next four sections are not in question in this suit.

Section 329 authorizes the prosecuting attorney of the county on representation of the county collector, and finding probable cause to believe that such a tax is due and unpaid, to apply to the probate court “for a citation citing the persons liable to pay such tax to appear before the court on the day specified, not more than three months after the date of such citation and show cause why the tax should not be paid. ” That is the only call for a writ of citation that we find in either of these sections. Then follow directions for proceedings in the probate court on the return of the writ, and provision is made for paying the expenses of that proceeding out of the funds arising from this tax. Then comes the closing sentence which we have-hereinabove quoted authorizing the State Auditor to retain counsel to represent the county collector'in proceedings in which, he “is cited as a party under section 322 of this article.”

There is no call for a citation in section 322, the only means provided for bringing the county collector before the appraiser is a written notice to him by mail.

Now let ns turn to the facts in the case.

When the probate judge found that there was an estate in his county liable to this collateral inheritance tax he appointed an appraiser, as section 322 required, to fix the valuation of the estate. That appraiser immediately gave “notice by mail to all persons known to have a claim or interest in the property to be appraised, including the county collector of revenue . . . of the time and place when he will appraise such estate or property.’-’ The State Auditor appointed counsel to appear at that proceeding and represent the county collector, which he did. The valuation placed on the property by that appraisement was $110,800, and on that the probate court fixed the amount of the tax at $5266.80, which the county collector collected and, before paying the same into the State treasury, deducted therefrom $174.69, as directed by the Auditor, and paid the same to the attorney who represented him in the appraisement.-

The purpose of this suit is to require the county collector to pay that $174.69 into the State treasury.

I. Relator’s first point turns on the meaning of the word “cited” as used in the last clause of section 329 above quoted, relator contending that the word is used in a technical sense and means served with a writ of citation, respondent contending that it means notified by mail of the time and place appointed for the appraisement as required by section 322,

Section 8057, Revised Statutes 1909, prescribing rules for the interpretation of statutes directs that “words, and phrases shall he taken in their plain or ordinary and usual sense, hut technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.” The word “cited” is a technical word, and among its technical meanings is that which the relator claims should be given it in this case. A citation in its technical sense is a writ issuing out of a court;.it is not an original writ instituting a suit, but it issues in a matter pending in court to notify a party interested that certain proceedings in that matter are to be considered. It is a proper writ to issue out of a probate court in which an estate is being administered. [2 Words and Phrases, p. 1161.] But when a technical word is inappropriately used in a statute and when to give it its technical meaning would entirely defeat the purpose of the lawmaker, if another meaning can with reasonable certainty be gathered from the whole context and the purpose of the statute be thereby effected, the word must be given that meaning.

If we should give to the word “cited” as here used the meaning contended for by relator it would destroy that whole clause of the statute. If we should say that the statute means to give the State Auditor authority to retain counsel to represent the collector only when the collector has been served with a writ of citation under section 322, then we would by interpretation wipe that clause of the statute off the books, because section 322 does not provide for the issuance of a writ of citation to the county collector under any circumstances, it only requires the appraiser to give him notice by mail, and that notice is what the statute refers to when it says “cited” under section 322.

The word “cited” is not limited, even in its technical meaning, to being served with a writ of citation; its meaning, among others, is, notified of a legal proceeding (Black’s Law Dictionary), and that is the sense in which it is used in this statute.

It is argued by tbe learned counsel for relator that, whilst the amount in controversy in this case is small, yet the principle involved is of great importance, because if this authority be conceded to the State Auditor, it is liable to such an abuse as would cause a large diminution of the collateral inheritance tax; That’ is an argument more appropriate to the General Assembly than to the court. The statute in question has been on our books for more than ten years, and if abuse had been practiced it is likely the attention of the General Assembly would have been called to it. At all events there is no suggestion of abuse of the power in the case before us, and we cannot consider that argument.

II. Is the statute which authorizes the payment of reasonable expenses incurred in the collection of this inheritance tax out of that fund while yet in the hands of the county collector a violation of section 43, article 4, of the Constitution? That section is in these words: “All revenue collected and moneys received by the State from any source whatsoever shall go into the treasury, and the General Assembly shall have no power to divert the same, or to permit money to be drawn from the treasury, except in pursuance of regular appropriations made by law.” The language is ample to cover Pot only all revenue derived from general taxation, but moneys collected by authority of the State from any source whatsoever; it therefore covers moneys derived from the collateral inheritance tax. It does not apply in a different force or degree to one than to the other. If the literal construction contended for by relator is to be applied to this section, then it-means that the General Assembly cannot authorize by statute the payment of fees to any officer or agent out of the money he may collect for the State, but he must pay it all into the treasury, and wait until the General Assembly meets and makes an appropriation to pay him for his services. That has never been the course of dealing between the State and the collectors of its general revenue or of its other taxes. The officers making the collections have always been permitted to retain the fees fixed by statute as their compensation; such was the course of dealing when the present Constitution was adopted, it had been for many years before, and it has been so ever since.

Relator seems to concede that such has been the practice, but it seeks to draw a distinction between fixed fees and fees that are to be fixed. If we are going to adhere to the letter of this section we must say that it applies to fixed fees as well as fees to be fixed; if we say that it does not apply to fixed fees that have long been allowed, then we depart from the letter and inject an exception by interpretation, and if we make an exception of one for a certain reason we should make an exception of another that comes under the same reason. The convention which framed our Constitution was composed of men who knew what the law on this subject then was and if they had understood that this section was liable to be construed as applying to the payment for services rendered in collecting thi revenue they would doubtless have made some provision to meet that condition, because payment for such services out of the funds before they were paid into the treasury had always been allowed by statute, and also because it would naturally impede or hinder the State in collecting its revenue unless such payments were so allowed.

The reason for allowing the county collector to retain his commissions is that his services were necessary in collecting the tax, and that reason applies as well to the services of the legal counsel in the collection of the inheritance tax as it does to the services of the collector. We do not say that the one is as necessary as the other, because the services of the collector are indispensable in every instance, whilst the services of an attorney may be necessary in some cases but not in others, therefore the statute has given the State Auditor authority to retain counsel only when in his judgment it is necessary, but when it is thus determined that the services are necessary there is no more reason for allowing the collector to .retain his commissions out of the fund collected than there is for the payment of the attorney out of the same fund. It has always been the policy of the State to allow payment out of taxes collected mot only to the county collector of general taxes, but to the officer intrusted with the issuance of licenses and the collection of license taxes, and if we should now give to section 43, article 4, the construction contended for by relator we would not only overturn a settled policy, but bring confusion in the collection of the revenues of the State. The General Assembly is forbidden by this section to divert from the State treasury the fund arising from the inheritance tax, but it is not a diverting of that fund for the General Assembly to provide for the payment of reasonable compensation for necessary services rendered in its collection.

The writ of mandamus is denied.

All concur.