*1 Thomp at the Relation and to Use of L. D. State Missouri Auditor, Appellant, Sanderson, son, v. Samuel M. Company Surety Corporation, New American York, Fidelity Deposit Company Corporation. & of Maryland, Missouri at the of Pike Relation and to the Use Surety Company Appellant, v. Samuel M. American Fidelity Deposit York, a Corporation, and New & Com pany of Maryland, (2d) Corporation. W. S. Two, Division December Boy MeKittriok, Attorney General, Beagan, Franklin E. Assistant Attorney General, Ma/y May Benmng Davis & for appellants. *2 and Sanderson; Motley H. L. Haley J. Robert Samuel M. Company Surety &

Bryan, Williams, Game MePheeters for American Maryland. New Fidelity Company Deposit York and & WESTHUES, County and of Pike State of Missouri C. The brought Collector separate against respondents, suits Surety Company of Pike The American Revenue Maryland, Deposit Company Fidelity New York & and alleged bond, amounts sureties on collector’s official to recover collector. State and from the due the stipulated together. A referee cases was should be tried hearing referee appointed in circuit court after a and report judgment wherein recommended that he should in favor certain sums found entered of the State together per computed to be month per with a ten cent paid by date the sums have been the collector. should report upon exceptions Sanderson his filed sureties a hearing before report approved, the circuit court the referee’s judgments far paid, so as it recommended for the amounts not judgment accordingly. disap- was entered The circuit court proved part report recommending referee’s an assess- ment of a per of ten cent month of found the amount to be due. From appealed. began

Sanderson’s term of *3 Febru- 7, office March and ended ary 28, 1931. August 1, plea filed its suit A on 1931. óf the Statute of shortages owing Limitations was sustained as to all August occurring prior 1928. 1, filed its July 1, suit 1931, on plea and hence the of the statute was sustained shortages owing 1, as to all occurring prior July The total amounts for which the referee recommended against respondents were as follows:

For the State:

Amount due 1929 March 15, year for 1928 .$. 42.39 Penalty per of month. 203.03 10%

Total .$ $245.42 245.42 Amount due March 15, 1930 .$ 50.79 Penalty of per month . 182.52 10%

Total .$ 233.31 233.31 Total due state. 478.73 $ For county:

Amount due 15, March 1929'.$ 121.65 Penalty of per month . 583.68 10%

Total .$ 705.33 705.33 $ Amount due March 1930 .$ 908.30 Penalty of per month . 3269.88 10%

Total .$4178.18 4178.18 Total $4883.51

117 sum State in tbe judgment for tbe entered a Tbe trial court judgments both $1,029.95, in sum tbe $93.18, and for the cent. per at six to bear interest appeal is over dispute on this only Tbe sole and which, and referee recommended which tbe per

of ten cent month have should trial court county contends the for the State and counsel his sureties judgment against Sanderson and entered assessed Statutes 9934, Revised 9933 and Sections under and virtue of 7974). (12 Ann., p. Mo'. Stat. num- be made hereafter will statute

Reference to sections .the specified, to sections refer, only, otherwise which will unless bers 12 Missouri Annotated will be found Revised Statutes Statutes, beginning page at first en- 9934 were

Respondents that contend Sections 1871; 9927 and Legislature year Sections by the acted Legislature year passed by 9928 were in the provisions contend the therefore, respondents and,

a different .impliedly provided penalty, were prior sections, which unnecessary to renders it we take case repealed. The view 9933 and question. opinion that Sections decide that It is our try to demon- will application us. "We have no to the cases before space possible. short as strate this county, contended,

It was not the State monthly due, statements had not over sums as disclosed yearly shown settle- provided in made as Section nor provided collector as required which be made ments are either 9918. Nor was contended that the it belonging to fraudulently intentionally any funds not withheld *4 through the collector’s shortage an audit of him.. The was disclosed found, Department. referee books, by The the State Auditor’s bookkeeping. entirely poor fact, shortage a the was due to that finding the of the referee: Note system of The an capable not accountant.

“The defendant was unsatisfactory with- very bookkeeping in the Collector’s officewas balances, abundant any plan and left dependable out of checks and quite making probable is that opportunity the of errors. It accu- successfully and system bookkeeping could not have been of bookkeeper. . by rately employed expert even an. which nothing in the evidence would has

“The Referee found Mr. Collector, in- justify slightest suspicion that the the money belonging appar- State. It is tentionally any withheld accounted to the State that he had ent that he was .convinced Undoubtedly the trouble found every belonging it. whole dollar to keeping accounts.” origin in method of its the an and maintained office force also made audit

Sanderson and his hearing county both the State and the the referee that the at before

118 county overpaid. 9933, upon by had relied the.State been authority for imposing penalty, a reads as follows: “Every fail payment collector who shall make the amount to on in settlement, due from him or manner the time and by law, wrong- a on shall forfeit ten cent month the amount ought fully withheld, computed to be the time amount to paid payment. apply actual section have been until This shall to by county, city, him, state, revenue collections made whether for town, or taxes, general special.” district school the,section quoted It will noted be to a failure of the refers pay collector to the amount due from him on settlement. "What is easily meant can 9918 settlement understood when Sections 9922, to inclusive, provide read. brief are In these sections collector shall make an annual settlement with the court. county county required, approving settlement, court is before a to make special inquiry fully and be satisfied that the collector used has diligence making required fully in collections. It is examine also to If approving settlement offered the collector before same. requires approved settlement be the law it to be made a matter copy of record a thereof to Auditor. The certified the State required, collector also 9927, monthly is under Section to make re- ports to county court of all pay collections made and to county amounts due the State and on or before of each fifteenth required month. It will be county noted that the clerk forward is a copy certified reports these to the State Auditor. required settlement, recog

The annual which made, is to be is something nized law as mere.report than more a collector remaining delinquent. par amounts collected and taxes It takes of the nature a settlement of the collector’s with accounts designated and State. court has been Legislature agency represent county. as the It held State ex Shipman, 842, rel. v. Mo. 28 S. W. ex Ewing, v. rel. Mo. 22 S. W. the ab fraud, sence of fact, collusion or mistake settlements made county. binding collector were on the that exces held paid commissions sive 'those cases could not they paid recovered because were a mistake under of law. On the theory same was denied redress where he been had commission permitted less than law. Crawford v. [Hethcock 200 Mo. W. S. 582.] question, may pre- The record this case is silent on the but we statutory court County performed sume that the of Pike its *5 duty fully examined the collector the settlements offered approving may before them. "We infer the record that Sander- son shown those full amounts settlements. If failed pay this collector to the full amount were a case the where settlements, be by monthly shown to due from him annual reports or intentionally if false or this were a case where the collector had filed belonging returns and settlements and withheld funds imposed. statutory rightly a penalty could be is, however, penal law must It a cardinal rule of statutes strictly penal construed. This a statute. It would of course is require impose a most liberal the construction of the statute to sought penalty this case the circum upon collector, under stances as shown Craw the record. was held in Hethcock v. County, supra, making

ford with that the court settlements agent county, charged duty the with fiscal the protected. it public language see to Note also the immediately precedes prescribing Section the section .which imposed asked in this case. “Every having, collector of revenue accord- settlement, ing law, of county received, pay revenue him collected shall county treasury, amount found due into the and the treasurer give duplicate receipts him therefor, shall of which filed one shall be in the officeof the clerk court, grant shall him full who quietus under seal of the court.”

In of Missouri Co., ex rel. Brewer 265 Fed. v. Federal Lead l. c. it was held had, by approving that a court settlement of a action of collector, ratified the of reduc ing accepting an assessment and a less sum for taxes than amount shown the tax books.

Under statute, the authorities cited and the we that in this hold only theory upon case the which the collector could is be held liable mistake, that due to a of fact and not of law the collector failed to pay'the county and the State all sums due them. No section of imposes revenue act penalty upon a collector for an honest mistake kind. wording of this 9933 clearly indicates therein imposed cannot be case. is, the trial therefore, Cooley, court affirmed. C., concurs. ,

PEE foregoing opinion C., CUBIAM:—The is Westhues, adopted opinion as the judges of the court. All the concur. Burgstrand Employer,

Martin Crowe Coal v. Company, Consoli Insurer, Appellants. (2d) S. W. Underwriters, dated Two, Division December