Opinion
No. 43527.
September 14, 1953.
APPEAL FROM THE CIRCUIT COURT, FRANKLIN COUNTY, RANSOM A. BREUER, J.
Wm. H. Wessel, Hermann, For appellant.
Frank W. Jenny, James A. Cole, Union, for respondent.
Action for the collection of a poll tax of $3 levied by an ordinance of the City of Berger, a city of the fourth class, under the powers granted by Section 94.280 RSMo 1949, V.A.M.S. The city recovered a judgment for the amount of the tax and the defendant has appealed.
The appeal was originally taken to the St. Louis Court of Appeals, but that court has transferred the cause here. City of Berger v. La Boube, Mo.App., 252 S.W.2d 659. We have jurisdiction since the determination of the appeal involves "the construction of the revenue laws of this state. "Art. V, Sec. 3, Const. of Missouri 1945, V.A.M.S.; Moore v. Vaughan, 53 Mo.App. 632, Id., 127 Mo. 538, 30 S.W. 162; City of Stanberry v. Jordan, 145 Mo. 371, 46 S.W. 1093; State ex rel. Divine v. Collier, 301 Mo. 72, 256 S.W. 455; City of Berger v. La Boube, supra.
Appellant contends that the court erred in entering judgement against him for the following reasons: (1) that Ordinance No. 7 of the City of Berger, adopted June 13, 1950, under which the $3 poll tax in question was levied, is not in conformity with a prior general poll tax ordinance of said city nor in conformity with Sec. 94.280, supra, in that the ordinance levies a money tax and grants the taxpayer no option to pay in labor; (2) that "the collector of the City of Berger did not, upon receipt of the poll tax list, without delay, give notice to the tax payers subject to poll tax as specifically provided by Section 4" of the said prior general poll tax ordinance; (3) that the notice given to taxpayers of the levying of the poll tax in question is not in conformity with sec. 94.280, supra, nor with the said prior general poll tax ordinance of said city in that it contained no provision under which the taxpayer could make payment in labor; and (4) that, even if ordinance No. 7 of June 13, 1950 levying poll tax for 1950 was, in the respect mentioned, in conformity with the statute and the prior general poll tax ordinance of said city, the assessment is null and void for the reason that the city of Berger, at the time in question, had no marshal to lay the poll tax list before the board of aldermen and no street commissioner to receipt tax payers for work done upon the streets, alleys and avenues of the city.
The facts have been stipulated by the parties and will be stated in the course of the opinion. No authorities purporting to be applicable to the merits of the controversy have been cited in the briefs filed by appellant and respondent. It is admitted the City of Berger is a city of the fourth class; that Sec. 94.280 applies to such city; that "on the 1st day of June, 1950 and during the remainder of the calendar year of 1950 there was no duly elected or appointed, qualified and acting Marshal * * * and no duly appointed, qualified or acting Street Commissioner within and for said City of Berger"; and that, in June, 1950 appellant was an able bodied male person between the age of twenty-one and fifty years, who had resided within the corporate limits of the City of Berger thirty days next preceding the levying of the poll tax in and by Ordinance No. 7.
Since the controversy turns primarily upon the construction of section 94.280 RSMo 1949, V.A.M.S. we quote that section. "All able-bodied male persons between the ages of twenty-one and fifty years, who have resided within the corporate limits of such city thirty days next preceding the levy of any poll tax for any given year, shall be liable to work on the streets and alleys of such city not to exceed three days or to pay such sum in lieu thereof as the board of aldermen may provide by ordinance, not to exceed four dollars, and upon failure to pay such poll tax, either in cash or by labor, when notified so to do, according to the ordinances of such city, it shall be the duty of the city collector to bring suit before some magistrate of the county in which such city is located, and proceedings shall be had thereon the same as in other ordinary civil cases; but no property shall be exempt from seizure and sale upon any execution issued upon any judgment rendered for such poll tax. The board of aldermen are hereby empowers to levy a poll tax not exceeding four dollars upon each able-bodied male person between the ages of twenty-one and fifty years, who shall have resided within the city thirty days next preceding the levy of such poll tax. Suits under this section may be brought independently of any other tax suits against any defendant pending on back taxes, owing by any defendant at the time suits under this section are brought."
The agreed statement of facts fails to show the date on which the city ordinance, which is referred to as the prior general poll tax ordinance of the City of Berger, was adopted. The first four section of this ordinance are as follows:
"Section 1, Levy — all able-bodied male persons between the ages of twenty-one and fifty years, who have resided within the corporate limits of the City of Berger, thirty days next preceding the levy of any poll tax for any given year, shall be liable to work on the streets and alleys of the City not to exceed three days, or to pay such sum in lieu there of as the board of aldermen, from time to time, may provide by ordinance, not to exceed four dollars.
Section 2. Board of Aldermen to Revise List. At the first regular meeting of the board of aldermen in June of each year, the city marshal shall lay the poll tax list before the board of aldermen for revision and correction, and the board of aldermen shall correct the same by striking therefrom the names of all persons improperly entered on such list and by adding thereto the names of all persons improperly omitted from such list so as to make the same as near as possible a true and correct list of all `persons liable for such poll tax, and none others, and when said list shall be so corrected, it shall be the basis upon which the board of aldermen shall levy the poll tax form that year and the board of aldermen shall immediately after revising said poll tax list make a levy as provided for in section one of this chapter.
"Section 3. City Clerk to Extend Poll Taxes and Deliver List. Whenever any such poll tax list shall be corrected by the board of aldermen, the city clerk shall thereon extend against each name on such list the poll tax levied for the fiscal year in which such list is made, and make out and certify under his hand and the seal of the City of Berger, a true and complete copy of the same, with the tax so extended thereon, and deliver the same to the city collector for collection and charge him with the amount of such poll tax.
"Section 4. Collector to Give Notice. Upon the receipt by the collector of such corrected poll tax list as mentioned in section three of this chapter, he shall, without delay, give notice by posting a written or printed notice in five public places in said city stating the fact that he is in possession of such list, that he is ready to receive such poll tax either in cash or by the receipt of the street commissioner showing that any person whose name appears on said list has paid his poll tax by labor upon the streets, avenues and alleys of the City of Berger and that unless such poll tax be paid either in cash or labor on or before the first day of October then following, the name shall be returned delinquent." The remaining sections of the ordinance are not material to the present controversy.
On June 13, 1950 the following ordinance was duly adopted by said city.
"Ordinance No. 7. An Ordinance Levying A Poll Tax on Able Bodied Citizens."
"Section 1. That a Poll Tax of Three Dollars be and is hereby levied against all able-bodied Male persons in the City of Berger, between the ages of twenty-one and fifty years for the year 1950.
"Section 2. That all Ordinances and part of Ordinances in conflict with this Ordinance are hereby repealed * * *".
At the meeting of the board of aldermen at which Ordinance No. 7 was passed, the mayor of the city, because of a vacancy in the office of city marshal, presented to the board a poll tax list containing the name of appellant and other poll taxpayers. There is no contention that the list was not corrected and approved and the tax levied against appellant and other persons. The list was duly certified by the city clerk and purports to be the 1950 poll tax list of said city and to show that $3.00 is due the City of Berger as poll tax for 1950 from appellant and each of the persons named in the list. The list was delivered by the city clerk to the duly elected, qualified and acting collector of the City of Berger. Thereafter, on September 15, 1950, a notice to taxpayers was prepared and posted by the collector in seven public places in said city. The notice was as follows:
"Notice to taxpayers. The Board of Aldermen have levied a Poll Tax of $3.00 for the year 1950 on all able-bodied male persons between the ages of 21 and 50 years, residing in the City of Berger.
"This tax is now payable at my office and becomes delinquent on October 1.
"G. E. Dieterle, Collector."
On the 13th of October, 1950, the city collector mailed a letter to appellant and each of the other named poll taxpayers as follows:
"The City of Berger has assessed a poll tax of $3.00 for the year 1950.
"Your name appears on the unpaid tax list. Your tax has been delinquent since October 1, 1950.
"G. W. Dieterle, Collector."
On November 22, 1950, the collector, by letter, advised appellant that the board of aldermen of the said city had instructed him to file suit for the collection of the 1950 delinquent poll taxes; and that he intended to comply with that order and institute an action therefor about December 1, 1950. An action was, thereafter, duly instituted against appellant in the magistrate court of Franklin County and, on appeal from the judgement entered in that court, the cause went to the circuit court of said county where the circuit court entered the judgement appealed from.
Appellant's theory is that Sec. 94. 280, in providing that poll taxpayers "shall be liable to work on the streets and alleys of such city not to exceed three days, or to pay such sum in lieu thereof as the board of aldermen may provide by ordinance, not to exceed four dollars," grants to the taxpayers the election to make the choice whether the shall work or pay; and that the Board of Aldermen had no right to determine by ordinance that the poll taxpayer should pay in money, rather than pay by work. Appellant complains of Ordinance No. 7 and also of the notice of October 1, 1950, because they make no provision for the payment of poll tax by labor upon the streets, as the former general poll tax ordinance permitted. Appellant does not complain of the notice of September 15, 1950, on the ground that he and other poll taxpayers were not named therein, or that the notice was not directed to him. Appellant construes Sec. 94.280 to require the city by ordinance to grant him the election to work or to pay as he may choose. He insists that Sec. 94.280 and the prior general poll tax ordinance of the city "specifically provide that such election shall be afforded and extended to all poll taxpayers." We do not so read the statute. Considering Sec. 94.280 as a whole and giving full effect to all of its provisions we think it clear that the city was not required to grant the election to the taxpayers, but that the city by ordinance could make the election, as was done in this case; and that the city could by ordinance require payment in cash rather than labor. This is particularly true when consideration is given to the last two sentences of Sec. 94.280. It is apparent that the section deals with the same matter in two separate and distinct ways. Under the first part of the section the city had authority to provide for payment in labor but was not required to do so, while the poll taxpayers would be required to work or pay as might be provided by ordinance. The latter portion of the section clearly grants the city a right to impose a per capita money tax, which is a true poll tax. Sec. 49 C.J. 1078, 72 C.J.S. Poll, p. 224, 61 C.J. 1534, Sec. 2255 et seq; 51 Am.Jur., Taxation, Secs. 84 and 412. We must and do hold that the election to require the payment of money rests with the board of aldermen of the city. It follows that the prior general poll tax ordinance of the city was modified by Ordinance No. 7; and that payment in money was legally and properly required. Ordinance No. 7 expressly provides for the repeal of all ordinances or parts of prior ordinances in conflict therewith and the prior general poll tax ordinance was modified accordingly.
Appellant further contends that the collector of the City of Berger did not, upon receipt of the poll tax list, "without delay," give notice to the taxpayers subject to such poll tax as was expressly provided for by Sec. 4 of the prior general poll tax ordinance. We think, that the requirement of Sec. 4 of the general poll tax ordinance concerning the giving of notice "without delay" was directory only: and that the failure to give the notice prior to September 15th did not invalidate the levy. State ex Inc. Smoot ex rel. Kugler v. Boyer, Mo.Sup., 259 S.W.2d 375; State ex rel. Reorganized School District No. 5 of Washington County v. Holmes, Mo.Sup., 253 S.W.2d 402, 404. And see State v. Eding, 141 Mo. 281, 42 S.W. 935; State v. Dolan, Mo.App., 216 S.W. 334.
Appellant further insists that Section 2 of the prior general poll tax ordinance of the city expressly provides that the city marshal shall lay the poll tax list before the board of aldermen; and that, since it is admitted that the City of Berger had no city marshal, the act could not be performed unless the city by ordinance provided for a different official to lay the list before the board. Appellant insists that the list could not be placed before the board by the mayor merely "because of a vacancy in the office of marshal"; and that, therefore, there could be no valid assessment of a poll tax against appellant. We think that this provision of the ordinance was solely directory and not mandatory. Section 79.120 RSMo 1949, V.A.M.S., with reference to the duties of the Mayor of a city of the fourth class, provides that "He shall exercise a general supervision over all the officers and affairs of the city, and shall take care that the ordinances of the city, and the state laws relating to such city, and are complied with." Section 2 of the general poll tax ordinance provided that the revision and correction of the poll tax list should be by the board itself. The board had authority to strike the names of all persons improperly entered on the list and to add the names of all persons improperly omitted form the list. The mere fact that, at a time when the city had no duly elected or appointed, qualified and acting marshal, the mayor presented the list to the council and it acted thereon, revised and corrected the same, could not in our opinion make the assessment void and of no effect. The action of the board in revising and correcting the list and levying the tax was the decisive matter covered by Section 2 of the ordinance. See State ex rel. Reorganized School District No. 5 of Washington County v. Holmes, supra.
Appellant further contends that even if the city ordinance had granted the poll tax payers of the city an opportunity to pay their poll taxes by work and labor, as was provided by the original poll tax ordinance, and even if the notice had been posted "without delay" and the assessment had otherwise been valid, "nevertheless this tax would still be uncollectible for the reason that, as admitted by counsel for plaintiff, there was no qualified or acting street commissioner who could have given a receipt to able-bodies citizens for any labor performed on the streets, alleys and avenues of the City of Berger." We have heretofore held that under Sec. 94.280 and under the prior general poll tax ordinance of the city, as amended and modified by ordinance No. 7, no election was required to be granted to poll taxpayers to pay their poll taxes in labor rather than in money. The ordinance as amended under the authority of the statute required the payment of the tax in money. It was therefore immaterial whether the city had a qualified or acting street commissioner at the time in question.
While no further points are made under points and authorities, appellant further argues that, since the statute and the prior general poll tax ordinance of the city apply the tax only to able bodied male citizens between the ages of twenty-one and fifty years who have resided within the City of Berger for at least thirty days, it must have been the intention of the lawmakers that "an election would be given to these individuals to work out the poll tax if they so preferred." Appellant also insists that any different construction of the statute and ordinance would make the phrase "able-bodied" meaningless and surplusage. We do not agree. The classification was proper. Kansas City v. Whipple, 136 Mo. 475, 479, 38 S.W. 295, 35 L.R. A. 747. We have heretofore construed the statute in view of all of its provisions and we have pointed out that the prior general poll tax ordinance was modified by the subsequent one.
The judgment is affirmed.
All concur.