*1 make counsel, his person, trusting in such persuade with another person against the interest of him, but beneficial to a transaction disclosing material facts.” fully advice, his without relying upon aside al Hockenberry case set chancellor trial present Texier judgment affirmed. In was lowance and adopted her plaintiff, had as his stepfather but only the was not placed upon him relation, here, under facts daughter. Such probate everything he court of make full disclosure to duty trust, alleged deed of lien claims under the and this knew about do, strongly reflects, con but, he he not as the record not probate keeping the court. real facts from nived at Mr. testified that he advised the curator Brownrigg It is true that circumstances,” going full investigation, “after over all the but Brownrigg it is Mr. he reasonable infer evidence circumstancеs,” good proceeded faith, 1enowall did not “the he through the further inference is reasonable that it the ac- tivity Brownrigg Texier that the facts. do Mr. did not know We imply judgment because mean to can be aside set negligence mere of counsel defendant. Mr. Brown- rigg may so, hаve been negligent, but if there is much Also, in this Brownrigg probate case. Mr. said that court was “fully informed.” petition In view recitals in for sale report and in alleged sale as to the amount of Texier’s liens trust, under deed probate inconceivable that court was “fully informed.” We necessary not think length do to deal at with the claims
defendants, Chippewa Company Hayden. Trust pledged Texier note company with the long trust due, after it was no Hayden stretch could defendant pur- considered innocent chaser. The judgment affirmed, and it Ferguson ordered. so HycÚe,CG., concur. PEE foregoing CURIAM: The opinion C., is adopted Bradley, opinion
as the judges court. All the concur. The State, Appellant, v. E. G. Gilmore, Collector of Revenue of
Mississippi County. S. W. (2d) 805. One, September 17,
Division *2 Boy McKittrick, Attorney General, appellant; Harry G. Walt- ner, Jr., of counsel. respondent.
J. C. Oliver & McDowell and Oliver *3 reassigned pro- recently writer, to is HYDE, C. This 9934, 1929, ceeding filed At- under Section Revised Statutes Judgment sought torney against General on behalf of State. Mississippi County proportion the Collector State’s fees, alleged have been retained in to amounts allowed 1933, page Statutes Laws Rеvised amended 9935A, page Laws and Section added court The trial defendant case. The appealed found for and dismissed State has judgment of dismissal. final agreed pleadings The facts to be stated in the were and an sufficiently present stipulation. question These additional upon whether the limitations total amount of commis- any one retain in to is entitled the collector fees, which sions by Laws amended Revised year, Statutes under delin- collection of fees received for the 1935, includes 1929) collect- fees for R. quent (allowed by Seе. taxes (allowed licenses merchants’ and manufacturers’ ing $174.94, the State 1929). The amount claimed due R. S. question involves construction this the determination of but belong excess fees State and Laws because the Revenue State its revenue. an increment corporation as municipal or [See Fulks, 614, 247 County ex rel. Buchanan 129.] ten of County within Mississippi comes 454) ; p. (as amended Laws Statutes 1929 Revised if to retain the agreed collector is and was entitled against taxpayer cent commission taxed manufacturers’ li- merchants’ the commission on collection of amount) specified (without regard limitations as to total censes respondent has not then retained Likewise, question decided retain. this he was entitled to
adversely respondent’s then State contention, is entitled excess fees retained. for its
Respоndent’s is, contention as follows: clearly the in- the amendment of 1933 it was still
“Even under (col- tent retention permit delinquent taxpayers) by collector. The section starts lected exception out with puts of back taxes. them back in sub- paragraph, large XIV in division its fifth in so far as counties concerned, exception permits cities are Section 9969 stand as it affects small XIV counties. Under subdivision the collector *4 large metropolitan in the to retain counties and cities is authorized per the 2 XV expressly exempts cent. the Subdivision fees аuthorized in subdivision XIV from the limitations set out in subdivision XV. The 2 authority per given same to retain cent is in collector the smaller by counties entire statute, Section Sections together. 9935 as well as must be It read construed give necessary to consistently effect Section 9969 in con- оrder to strue two not take from the county sections and small collector what the intended be his without restriction.” However, original Section (See. Revised Statutes 1919 9935, R. 1929) S. this en was construed Court Banc in State ex County Fulks, rel. Buchanan v. 296 247 Mo. con trary respondent’s contention. The sentence first of the section provided then, it as after the 1933 (except did amendment that coun paying salary ties excluded), collector a are now col “the compensation lector shall receive as full collecting services in except revenue, taxes, tack the following commissions and no more. 1919 (Sec. 1929) Revised Statutes 9969, R. 1236 designated percentages of then collector
likewise allowed 12927, Be- XIV taxpayer. to be of Subdivision coun largest cities and (applicable vised Statutes amendment, that “on ties) provided after then, as it be allowed shall he all back taxes and all other face cent, of shall per of two which be added a commission penalty party such tax as a paying the tax from bill ’’ enforced. penalties are collected and manner as other in the same in his residue provided that “out of such commissions of also vouchers) he be al payment expense shall (after hands residue com retain, as far as authorized to the said lowed and compensation at the rate ten permit, in his hands will missions Constitution; IX, annum.” Art. thousand dollars [See 897; Quaere: Louis, W. Harrington City of St. 17 S. keep all a collector fees collected be contended that could Would on back taxes this made his total fees Constitutional exceed counties) pro Subdivision XV to all smaller (applicable limit?] vided, amendment, up in 1919 the time “that no of the nine collector shall allowed to over thousand dollars of provided in year except fees in sub one herein; division fourteen all fees and commissions .source in hands of whatever excess of nine dollars, except fourteen, thousand subdivision shall city, county into the and state treasuries in the amount each; received on taxes collected for be the duty collector, year, county each once in each file court county comptroller each and in office of city of each county, statement, under oath of the of fees amount com missions received him what source, and shall immediate ly Pay according over county the excess to the order of court or comptroller: Provided, that the collector for the collеction the levee taxes and ditch col drainage purposes, lected for shall be ’’ collected. Construing (subdivision the 1919 XV statute was the same as in statute)
the 1909 this Banc Court en in the Fulks case said: “It is admitted that the proviso Bevised Statutes that no collector shall be allоwed to retain over in any year commissions and fees pro-
vided applicable County, Buchanan but it that this does not contended include his *5 taxes; 12959, back and Section Bevised Statutes allows the collector an per additional four cent commission for collecting de- linquent . . back taxes. . The only instance which the col- .in retain may lector more than for his fees and commissions is per one cent allowed for collection of the levee taxes and ditch in the Heth- taxes. . . .We conclusion think the reached Hawkins, cock 70 W. Case and in ex rel. State cases, entitled that, under facts the collector was of those delinquent on per to retain four cent and back commissions It collections, applicable tax is not to the of this case. facts that, 615), (169 is under the in the Hawkins Heth- obvious faсts Mo. (200 170), 103), (264 coek Mo. Dameron Mo. Cases Section general terms, applicable which is con- a statute couched trolling. (These but the by respondent same cases are on here relied question ujpon of limitation in- total amount to be was not retained any them.) it is volved But this case is within admitted of Section It subdivision 15 12927. must be obvious them, any repugnancy the extent between necessary ‘to special prevail general will over the canons con- statute.’ require subject struction relating that the two statutes the same together law; should be as constituting harmonized read special statute; being exception general other- viewed an meaningless. proviso wise 15 is conclusion of subdivision Our per that Fulks was (all) not entitled to four cent commis- delinquent sions on and back Re- provided by taxes commissions, required vised Statutes 1919 for but was to account all settlements, penalties in his annual . . . The $9000. imposed cent by four commissions Revised paid by delinquent are taxpayers Statutes addition Except levied. taxes these are retained collector for extra serv- his ices. Under into ‘all fees and commissions the hands of whatever source in excess of nine city, thousand dollars . . county .
state in proportion treasuries to the col- on received taxes lected each.’ . . The was not entitled to recover the four commissions received the сollector on district. . The school collector is them, to retain being entitled and fees limited year. belongs $9000 for clearly It to the school district as increment, should have been over treasurer there- of.”
Certainly definite, subsection 15 as amended in 1933 even than the statute construed in prohibiting the Fulks a col- retaining lector from fees collected if his total fees would exceed the amount he maximum authorized retain, it, therefore, given construction, cannot for which respondent overruling contends without the Fulks case. reads, follows:
“Prоvided, collector, no as provided in subdivision herein, fourteen shall be allowed to retain commissions and fees in
1238 any following amounts; in any year in excess more ten, of subdivision not county coming within the provisions hands coming into the $4000; . and fees commissions . . and the amounts source whatever any any of collector from be fourteen, shall specified, provided subdivision herein the proportion to city, county treasuries the and state into each; . that provided, . for . collected amount received on taxes shall provided to herеin limitation retained as on amount be delinquent taxes, current, apply bach and to and commissions on levee on the collection ditch and apply but shall not to commissions collection collector for the taxes, and the drainage purposes, shall lеvee collected taxes and ditch amount collected.” be if case was and Therefore, even the Fulks overruled the hands be “all fees commissions into held in subdivision any source whatever” mentioned delinquent taxes, it still on would not include fees collected specific provision in ignore plain impossible be to re to stating of the 1933 that “the limitation on amount act cur on provided apply shall and commissions tained as herein to-fees rent, language could be to delinquent botch taxes.” What used delinquent taxes within “the specifiсally place fees collected on retained” hold limitation on amount collector? We mean, “all fees that this is what it does and that whatever” source any collector coming into hands of taxes”) (except collection ditch levee “commissiоns on coun city, must “be specified excess of the limitations ease) (school according treasuries ty state district, Fulks each.” the amount received on taxes collected 1937, page Respondent by which Section attention to Laws calls per clarifying law “rеpealed a new section said was . . In this 1937 subject matter . enacted.” taining to the same act, provided ini that “the limitation on the subdivision 15 com apply herein to fees and be retained as on on not apply missions current but shall levee taxes and ditch taxes.” collection bach and 14.) (See seems clear similar added (“shall the 1937 portion this italicized of subdivision 15 of act taxes”) exactly . . . apply on has to commissions used, XY meaning language the opposite from the in subdivision . . de- (“shall apply 1933 act . commissions on linquent taxes”) respеct with to whether fees back taxes were to be the maximum be re- included within amounts allowed “clarify- Respondent says by using collectors. word tained ing” declare law and the intended to old Legislature, new to mean law should be same. The construed however, power givе had no by any retroactive effect the new law recital in see, title or otherwise. 2: Art. also, Art. [Sec. We cannot assume such retroactive effect Constitution.] intended. *7 cause reversed and remanded with directions proceed rulings in accordance Ferguson with herein made. Bradley, CO., concur.
PER foregoing opinion CURIAM: The C., adopted Hyde, opinion of the court. All the judges concur, Lucas, J., sitting. ’not
Benjamin Benjamin Philibert, Appellant, Ansehl Company, a
Corporation. (2d) 797. One, September 17,
Division 1938.* 1938; May motion Opinion May Term, *NOTE: filed at Term, September rehearing filed; September motion overruled at