Opinion
June 23, 1933.
1. CONSTITUTIONAL LAW: Vested Right: Fees of Tax Attorney. By vested right is meant one which is absolute, complete and unconditional.
The right of an attorney to fees provided in Section 9952, Revised Statutes 1929, for enforcing the payment of delinquent taxes, is not a vested right so as to render unconstitutional the Act of 1933, remitting such fees when such taxes are paid within a given time.
The attorney's right to such fees accrues as a whole after collection is made or judgment rendered.
The Legislature having fixed one definite and certain mode of payment of such fees no other is permissible.
2. TAXATION: Attorney's Fees: Contract. A contract entered into between the collector and his attorney, approved by the county court, imposes no liability upon either the State, county or collector.
3. CONSTITUTIONAL LAW: Taxation: Costs of Collector. The fees of the collector and his attorney and other county officers allowed for collecting delinquent taxes are subordinate to the general legislative powers to impose, increase, diminish or remit penalties for tax delinquents and no vested right is impaired by the remission.
4. CONSTITUTIONAL LAW: Due Process: Ex Post Facto Law. The Act of 1933, remitting penalties, interest and costs on the payment of delinquent taxes, does not offend against the due process clauses of the Fourteenth Amendment to the United States Constitution, nor Section 30, Article II of the State Constitution nor the clause forbidding the enacting of an ex post facto law. [Sec. 10, Art. I of the U.S. Constitution.]
5. CONSTITUTIONAL LAW: Statutes. The Act of 1933, remitting penalties, interest and costs on the payment of delinquent taxes is remedial, relates to procedure and is not within the ban of Section 15, Article II of the State Constitution.
6. STATUTES: Suit for Delinquent Taxes. Under a proper construction of the Act of 1933, a suit for delinquent taxes is not prevented, but the penalties are remitted in the manner provided in the act, upon proper tender of payment of the original taxes, without penalties, fees or costs, before judgment is rendered (except as to certain options).
7. STATUTES: Suspension. The Act of 1933, remitting penalties, interest and costs on payment of delinquent taxes merely suspends the provisions of the law repugnant thereto and therefore the provisions of Sections 658 and 660, Revised Statutes 1929, relating to the effect of repealing statutes do not interfere with the operative effect of the act.
8. TAXATION: Pending Suits: Effect of Act of 1933. Where suits are pending during any part or all of the entire period covered by the Act of 1933; (1) none can proceed to final judgment before the expiration of the act, January 1, 1934; (2) a taxpayer exercising the first option may pay the original tax without more and all penalties are discharged and his suit will be abated; (3) exercising the second option, the taxpayer in a suit pending against him in addition to the original tax must pay one-fourth of all penalties formerly chargeable, and his suit will abate; (4) the same process will result and apply to the remaining options.
ALTERNATIVE WRIT MADE PEREMPTORY.
Roy McKittrick. Attorney-General, Edw. C. Crow. Covell Hewitt and Harry G. Waltner, Jr., Assistant Attorney-Generals, for relator.
(1) Senate Bill No. 80 embraces the whole State and relates to a well and clearly defined class, delinquent taxpayers, and such classification is not arbitrary but on a reasonable basis. Ewing v. Hoblitzelle, 85 Mo. 64; Dunne v. Ry. Co., 131 Mo. 1; State ex rel. Moseley v. Lee, 319 Mo. 976; Miners Bank v. Clark, 252 Mo. 20; Commissioners v. Hamersley. 204 P. 445. (a) Delinquent tax laws and legislation relating to tax delinquents as a class have been recognized as valid general laws and have taken the form of general laws as a rule ever since Missouri has been a State and have carried penalties for tax delinquency. Territorial Laws of Mo., 1815, ch. 140, Art. 21; 2 Laws 1825, p. 674; R.S. 1835; R.S. 1848, p. 941; R.S. 1855, Art. 5. ch. 135; R.S. 1865, chs. 11-12-13; Laws 1872, p. 117; R.S. 1879, Art. 6, ch. 145; R.S. 1889. Art. 6, ch. 138; R.S. 1899, Art. 6, ch. 149; R.S. 1909, Art. 8, ch. 117; R.S. 1919; Art. 9, ch. 119; R.S. 1929, Art. 9, ch. 59; State ex rel. Maguire v. Draper, State Auditor, 47 Mo. 29; State ex rel. v. Maguire, Collector, 47 Mo. 35; State ex rel. v. Ry. Co., 89 Mo. 570; Watson Seminary v. Pike County Court, 149 Mo. 57; State ex rel. Ferguson v. Moss, 69 Mo. 495; State ex rel. Bauer v. Edwards, 162 Mo. 660. (b) A delinquent tax law is a general law within the meaning of the State Constitution, because its subject matter does or may exist in or affect every part of the State. 59 C.J. p. 734, sec. 321; Pump v. County Commissioners, 69 Ohio St. 448, 69 N.E. 666. (2) Senate Bill No. 80 is a general law applicable to the whole State. The act relates to all delinquent taxpayers and does not relate to particular delinquent taxpayers. State v. Bishop, 128 Mo. 385; State ex rel. Sekyra v. Schmoll, 313 Mo. 706; State ex rel. Daily Record v. Hartman, 299 Mo. 410; State ex rel. Kemper v. Ry. Co., 79 Mo. 420; State ex rel. Kemper v. Ry. Co., 9 Mo. App. 532; State ex inf. Barker v. Southern, 265 Mo. 275; Forgrave v. Buchanan Co., 282 Mo. 607. (3) Senate Bill 80 does not relinquish any taxes and does not purport to do so nor prevent the bringing of a suit at any time for the collection of the taxes, and the only effect thereof is to relieve from the penalties for nonpayment of taxes. Suit for the delinquent taxes can be commenced at any time regardless of the provisions of Senate Bill 80, and judgments rendered. The only thing Senate Bill 80 does is to give taxpayer the right to pay on terms set out in Senate Bill 80. State ex rel. Bauer, Collector, v. Edwards, Executor, 162 Mo. 660. (4) Missouri Supreme Court holds interest on delinquent taxes is penalty. St. Francis Levee District v. Dorroh, 316 Mo. 398; also, 316 Mo. 413; Eyerman v. Blaksley, 78 Mo. 145; St. Louis to use, etc. v. Allen, 53 Mo. 44. (5) Interest, costs and commissions added for nonpayment of taxes is recognized as penalty both by our Missouri courts and by our statutes. Laws 1895, p. 243; R.S. 1919, sec. 4397; Levee Dist. v. Dorroh, 316 Mo. 411; St. Louis v. Allen, 53 Mo. 44. (a) The penalty being not a part of the tax is subject to legislative control. 4 Cooley on Taxation (4 Ed.) sec. 1821, p. 3573; Sedgwick Co. v. City of Wichita, 62 Kan. 704, 64 P. 621; State ex rel. v. Dinwiddie, 83 Okla. 181, 200 P. 1002; Commissioners v. City of Clinton, 49 Okla. 795, 154 P. 513; State ex rel. v. Ry. Co., 89 Mo. 570; Barnett v. Railroad Co., 68 Mo. 63; State ex rel. Maguire v. Draper, State Auditor, 47 Mo. 34. (b) The penalty upon a delinquent tax is not created by the levy of the tax, and as the Legislature creates the penalty, it can remit it the same as fines and penalties arising from violation of other laws. Commissioners v. City of Clinton, 49 Okla. 797; Kansas City v. Stewart, 90 Kan. 849; 25 C.J. 1213; Maryland v. Baltimore, 3 How. 534; Coles v. Madison Co., 1 Ill. 154; State to the use of W. County v. Railroad Co., 12 Gill Johnson, 400; State ex rel. v. Ry. Co., 89 Mo. 570. (c) The repeal or suspension of a law imposing a penalty is of itself a remission. Maryland v. Railroad Co., 3 How. 534; United States v. Ship Helen, 6 Cranch, 203; 1 Cranch, 104; 5 Cranch, 281; Maryland v. Railroad Co., 3 How. 552. (d) Penalties imposed on delinquent taxpayers are "fines" within the meaning of a constitutional provision declaring excessive fines shall not be imposed. 3 Cooley on Taxation (4 Ed.) p. 2542, sec. 1273; State v. Railroad Co., 100 Tex. 153, 97 S.W. 71. (6) No vested right of respondents to the penalty, costs and commissions is acquired until final judgment for same is rendered or collection made, and the weight of authority is the right to penalty may be taken away any time before plaintiff is entitled to execution on judgment as matter of right. Yeaton v. United States, 5 Cranch, 281; Anderson v. Byrnes, 122 Cal. 272, 54 P. 821; Speckert v. Louisville, 78 Ky. 287; Lewis v. Foster, 1 N.H. 61; 12 C.J. sec. 556, pp. 973-4; Railway Co. v. Wells, 65 Ohio, 316; Railroad Co. v. Austin, 21 Mich. 390; United States v. Morris, 10 Wheat 305; Confiscation Cases, 7 Wall. 462; Norris v. Crocker, 13 How. 441; Maryland v. Railroad Co., 3 How. 552; Yeaton v. United States 5 Cranch, 281; 25 C.J. pp. 1213-14, sec. 160; 12 C.J. p. 973, sec 556, (a) Respondents are not entitled to penalties interest, fees and costs except in cases where claim for delinquent taxes has been reduced to final judgment or collected prior to effective date of operation of Senate Bill No. 80. Jones v. Williams, 45 S.W.2d 130, 79 A.L.R. 983; Livesay v. D'Armond, 134 Or. 563, 284 P. 166, 68 L.R.A. 422; State v. Coos Co., 115 Or. 300, 237 P. 678; 3 Cooley on Taxation, sec. 1273, p. 2535; Butler v. Pennsylvania, 10 How. 402; Cooley's Constitutional Limitations (8 Ed.) pp. 754, 755, 756, 794; State ex rel. Bauer v. Edwards, 162 Mo. 660; Yeaton v. United States 5 Cranch 281. (b) A penalty given by statute may be taken away by statute at any time before final judgment is recovered or penalty collected. Livesay v. D'Armond. 134 Or. 563, 284 P. 166, 68 L.R.A. 422; State v. Coos Co., 115 Or. 300, 237 P. 678; Adams v. Fragiacoma, 15 So. 798; 3 Cooley on Taxation sec. 1273, p. 2535; Jones v. Williams, 45 S.W.2d 130, 79 A.L.R. 983; Maryland v. B. O. Ry. Co., 3 How. 534; Railroad Co. v. Wells, 65 Ohio St. 313, 62 N.E. 332, 58 L.R.A. 651; Com. v. Standard Oil Co., 101 Pa. 119; State v. Mayor of Jersey City, 37 N.J.L. 39; Butler v. Pennsylvania, 10 How. 402; Cooley's Constitutional Limitations (8 Ed.) pp. 754, 755, 756, 794; Oriental Bank v. Freeze, 18 Mo. 109; Commonwealth v. Standard Oil Co., 101 Pa. 150; Secs. 9952-9969, R.S. 1929; State ex rel. Bauer v. Edwards, 162 Mo. 660; State ex rel. Ferguson v. Moss, 69 Mo. 495. (c) Even after judgment in trial court, penalty may be remitted any time before plaintiff is entitled as matter of right to his execution on the judgment. Yeaton v. United States, 5 Cranch, 281; Anderson v. Byrnes. 122 Cal. 272; Speckert v. Louisville, 78 Ky. 287; Lewis v. Foster 1 N.H. 61. (7) No vested right of the respondents was violated by enactment of Senate Bill 80. The Legislature had the right to remit interest, costs and penalties and fees at the time the respondents accepted offices now held by them; and respondents' right to interest, fees, penalties and costs in delinquent tax matters is subordinate to the power of the States to remit same and no rights of respondents vest until a judgment is entered for the delinquent tax, costs, fees, interest, and penalties. Confiscation cases, 7 Wall. 454; 12 C.J. 973; Maryland v. Railroad Co., 3 How. 534; Butler v. Pennsylvania, 10 How. 402; Cooley's Constitutional Limitations (8 Ed.) pp. 754, 755, 756, 794; Jones v. Williams, 45 S.W.2d 131, 79 A.L.R. 983; 3 Cooley on Taxation, sec. 1273, p. 678. (8) The accrual of or commencement of a suit for a forfeiture, fine or penalty imposed by statute does not give a vested right thereto which the Legislature may not take away or impair. 12 C.J. sec. 556, p. 973, confiscation cases, pp. 459-462, 7 Wall. 454, 19 L.Ed. 196; Maryland v. Railroad Co., 3 How. 534, 11 L.Ed. 714; United States v. Morris, 10 Wheat 246, 6 L.Ed. 314; Yeaton v. United States, 5 Cranch, 281, 3 L.Ed. 101; Royston v. Miller, 76 F. 50; Pollock v. The Laura, 5 F. 133; Brown v. United States, 1 Woodw. 198; United States v. Lancaster, 4 Wn. 64; Walter v. Bacon, 8 Mass. 468; Lyon v. Morris, 15 Ga. 480; Cushman v. Hale, 68 Vt. 444, 35 A. 382; Pope v. Lewis, 4 Ala. 487; 25 C.J. p. 1213, secs. 156-160; Jones v. Shores, 1 Wheat. 473; Anderson v. Byrnes, 122 Cal. 272, 54 P. 821; Atwood v. Buckingham, 78 Conn. 423, 62 A. 616; Welch v. Wadsworth, 30 Conn. 149; O'Kelly v. Athens Mfg. Co., 36 Ga. 51; St. Mary's Bank v. State, 12 Ga. 475; Mix v. Railroad Co., 116 Ill. 502, 6 N.E. 42; Railroad Co. v. Adler, 56 Ill. 344; Thompson v. Bassett, 5 Ind. 535; State v. Youmans, 5 Ind. 280; Tobin v. Hartshorn, 69 Iowa 649, 29 N.W. 764; Potter v. Sturdivant, 4 Me. 154; Railroad Co. v. Austin, 21 Mich. 390; Davidson v. Witthaus, 106 A.D. 182; West Troy Fire Dept. v. Ogden, 59 How. Pr. 21; Butler v. Palmer, 1 Hill, 324; Dyer v. Ellington, 126 N.C. 941, 36 S.E. 177; Railroad Co. v. Wells, 65 Ohio St. 313, 62 N.E. 332, 58 L.R.A. 651. (9) Missouri Legislature has construed the Constitution as giving it power to remit fines and penalties by general law and the Supreme Court has sustained the Missouri Legislature in the construction. State ex rel. Ferguson v. Moss. 69 Mo. 495; Laws 1895, p. 243; State ex rel. Bauer v. Edwards, 162 Mo. 660; Sec. 9951, R.S. 1929; State ex rel. Maguire v. Draper, 47 Mo. 29; State ex rel McRee v. Maguire, 47 Mo. 35. (10) Without the limitations of the State Constitution, the power of the Missouri Legislature to make laws would be absolute. There is no limitation in Missouri Constitution prohibiting the Legislature from remitting penalties by a general law. Therefore, the Legislature can by general law remit penalties. 1 Cooley's Constitutional Limitation (8 Ed.) p. 355; Sill v. Village of Corning, 15 N.Y. 297; People v. Railroad Co., 24 N.Y. 497; State ex rel. v. Eby, 170 Mo. 525. (a) The people of Missouri said, in Section 53, Article IV, a penalty should not be remitted by a special law, but did not say in the State Constitution that it could not be remitted by a general law; therefore, the rule applies what the people have not said in the organic law their representatives shall not do, they may do; hence, Senate Bill 80, remitting penalties, being a general law, is constitutional. Russ v. Commonwealth, 210 Pa. 544, 60 A. 169; 1 Cooley's Constitutional Limitations, p. 175; Jones v. Williams, 45 S.W.2d 130, 79 A.L.R. 422; Yeaton v. United States, 5 Cranch, 281; Opinion of Justices, 103 Me. 506. (b) Remission of penalties, interest and costs, provided for by Senate Bill No. 80, does not extinguish or release an indebtedness or liability or obligation of any corporation or individual to the State of Missouri or to any county or other municipal corporation in violation of the provisions of Section 51, Article IV of the Constitution of Missouri, as Section 53, Article IV, relates only to special or local laws, and does not include Senate Bill 80, because it is a general law. State ex rel. Bauer v. Edwards, 162 Mo. 660; Livesay v. D'Armond, 134 Or. 563, 284 P. 166, 68 A.L.R. 422; State v. Coos Co., 115 Or. 300, 237 P. 678; Adams v. Fragiacomo, 15 So. 798; 3 Cooley on Taxation sec. 1273, p. 2535; Jones v. Williams, 45 S.W.2d 130, 79 A.L.R. 983; Maryland v. B. O. Ry. Co., 3 How. 534; Railroad Co. v. Wells, 65 Ohio St. 313, 62 N.E. 332, 58 A.L.R. 651; Com. v. Standard Oil Co., 101 Pa. 119; State v. Mayor of Jersey City, 37 N.J.L. 39; Butler v. Pa., 10 How. 402. (c) The cases in Kentucky, California, Nebraska, Louisiana and Illinois construing state constitutional provisions prohibiting legislative release of indebtedness, liability or obligation, will be found on examination to be mostly cases where taxes were sought to be released; therefore, do not apply to the case at bar, but one of Kentucky cases at least holds tax penalty is included within the prohibition of such a constitutional provision. New Orleans v. Sugar Shed Co., 35 La. Ann. 550; Board v. Smith, 95 Ill. 335; State v. Graham. 17 Neb. 43, 22 N.W. 114; Railway Supply Co. v. Louisville, 146 Ky. 573. (d) The weight of authority is that constitutional prohibition prohibiting the release by the Legislature of obligation or liability due the State is not violated by the remission of tax penalties. Railroad Co. v. Wells, 65 Ohio St. 313; Livesay v. D'Armond, 134 Or. 563, 284 P. 176; State v. Coos Co., 115 Or. 300; Butler v. Pa., 10 How. 402; Jones v. Williams, 79 A.L.R. 995; State ex rel. Bauer v. Edwards, 162 Mo. 660; State ex rel. v. Ry. Co., 89 Mo. 570; Barnett v. Railroad Co., 68 Mo. 63; Levee Dist. v. Dorroh, 316 Mo. 411; Watson Seminary v. Pike County Court, 149 Mo. 57; Com. v. Standard Oil Co., 101 Pa. 119; 3 Cooley on Taxation, sec. 1273, p. 2535; 25 C.J. p. 1213, sec. 156; Maryland v. Railroad Co., 3 How. 534; State ex rel. Ferguson v. Moss, 69 Mo. 495; State v. Investment Co., 30 N.M. 491. (11) If official services rendered by respondents in connection with delinquent taxes of W.E. Peters created an implied contract on part of State, as claimed by respondents (which we deny) to pay the amount of said penalties, interest and costs, still the enactment of Senate Bill 80 did not have the legal effect of impairing the obligation of such implied contract. The law is if said Senate Bill caused a change in implied contract and same was not assented to by respondents, said Senate Bill so enacted, only constituted a breach of the implied contract and gave rise to a claim for damages against the State. 12 C.J. sec. 608, pp. 996-7; Brown v. Colorado, 106 U.S. 95; Caldwell v. Donaghey, 108 Ark. 60, 156 S.W. 839, 45 A.L.R. (N.S.) 721, Ann. Cas. 1915B, 133; Lord v. Thomas, 64 N.Y. 107; Rand Co. v. Hartranft, 29 Wn. 591, 70 P. 77; McDougall v. Racine Co., 156 Wis. 663, 146 N.W. 794; Danolds v. State, 89 N.Y. 36. (12) No vested right of respondents has been impaired or disturbed in violation of contract clause by enactment of Senate Bill No. 80. Confiscation Cases, 7 Wall. 461; Livesay v. D'Armond, 134 Or. 563, 284 P. 166; State v. Coos Co., 115 Or. 300, 237 P. 678; Adams v. Fragiacomo, 15 So. 798; 3 Cooley on Taxation, sec. 1273, p. 2535; Jones v. Williams. 45 S.W.2d 130; Maryland v. B. O. Ry. Co., 3 How. 534; Railroad Co. v. Wells, 65 Ohio St. 313, 58 A.L.R. 651; Com. v. Standard Oil Co., 101 Pa. 119; State v. Mayor of Jersey City, 37 N.J.L. 39; Butler v. Pennsylvania, 10 How. 402; Watson Seminary v. Pike County Court, 149 Mo. 57, 50 S.W. 880; State ex rel. v. Ry. Co., 89 Mo. 570; United States v. Morris, 10 Wheat. 246, (a) The cases of State of Mississippi ex rel. Robertson v. Miller, 276 U.S. 174, and Fisk v. Jefferson Police Jury, 116 U.S. 133, do not hold the contract clause of the Federal Constitution prohibits the Missouri Legislature from relieving by Senate Bill No. 80 delinquent taxpayers from all penalties, interest, costs, and fees claimed by respondents in cases wherein the delinquent tax claim has not been reduced to judgment or collected. Neither of above said cases apply; in one, penalties had been collected; in the other, claims had been reduced to judgment. Dixon v. Jersey City, 37 N.J.L. 39; Belvidere v. Railroad Co., 34 N.J.L. 193; Demoville v. Davidson Co., 10 S.W. 353, 87 Tenn. 214; State v. Investment Co., 30 N.M. 491, 239 P. 741; 12 C.J. sec. 556, p. 973; State v. Coos Co., 115 Or. 300, 237 P. 678; Com. v. Standard Oil Co., 101 Pa. 119; Jones v. Williams, 45 S.W.2d 130; Livesay v. D'Armond, 134 Or. 563. (13) Senate Bill 80 is not retrospective within the meaning of our Constitution; Senate Bill 80 only changed State's remedy for collecting delinquent taxes; it impaired no vested right, imposed no addition obligation or disability, not created a new liability. Welshear v. Kelley, 69 Mo. 354; City v. Coons, 37 Mo. 45; State v. St. Louis County Court, 34 Mo. 546; Drehman v. Stiefel, 41 Mo. 184; Cooley's Constitutional Limitations, 361-365; 2 Cooley on Taxation (4 Ed.) sec. 517, p. 1153; Schoenheit v. Nelson, 16 Neb. 235, 20 N.W. 205; In re Comrs. of Elizabeth, 49 N.J.L. 488, 10 A. 363; State ex rel. Ferguson v. Moss, 69 Mo. 495. (14) Senate Bill 80 does not deprive respondents of their property without due process of law. State ex rel. Ferguson v. Moss, 69 Mo. 495; State ex rel. v. Auditor, 47 Mo. 29; Butler v. Baily, 2 Bay, 244; Gennins v. Auditor, 18 Ohio St. 534; Boyer v. Jones, 14 Ind. 354; Gatchet v. McCall, 50 Ala. 307; Bartlett v. Kane, 16 How. 269; Murray v. Hoboken Land Co., 18 How. 282; Jones v. Williams, 45 S.W.2d 130, 79 A.L.R. 983.
Foristel, Mudd, Blair Habenicht, Casey Wright, George Smith, G.R. Chamberlin, George V. Farris, Roy Coyne and A.H. Garner for respondent.
(1) Senate Bill 80 is unconstitutional and void. It fails to take into consideration earned fees, but releases, extinguishes indebtedness, liabilities and obligations of individuals, and violates Section 51, Article 4 of the Constitution of Missouri, which section reads as follows: "The General Assembly shall have no power to release or extinguish, or authorize the releasing or extinguishing, in whole or in part, the indebtedness, liability, or obligation of any corporation or individual to this State, or to any county or other municipal corporation therein." Winter v. Kansas City Cable Ry. Co., 61 S.W. 606; Jaqua v. Shewalter, 37 N.E. 1072. Liability means the state of being bound or obligated to pay or to make good something; a legal responsibility. Wood v. Curey, 57 Cal. 209; McElfresh v. Kirkendall, 36 Iowa 225; Benge v. Bowling, 51 S.W. 151; Gitchell v. Kreidler, 84 Mo. 472; Phelps v. Brumback, 107 Mo. App. 25. (2) Senate Bill 80 is void, invalid and unconstitutional in that it violates and contravenes Subdivisions 22, 23 and 28 of Section 53, Article 4 of the Constitution of Missouri, which sections are in words: "(Section 53) 'Special and local laws prohibited; the General Assembly shall not pass any local or special laws.' (22) 'Remitting fines, penalties and forfeiting or refunding moneys legally paid into the treasury.' (23) 'Exempting property from taxation.' (28) 'Extending the time for the assessment or collection of taxes, or otherwise relieving any assessor or collector of taxes from the due performance of their official duties, or their securities from liability.'" Hannibal v. Guyott, 18 Mo. 515; State v. Trimble, 298 S.W. 833. (3) Senate Bill 80 conflicts with Section 15, Article 2 of the Constitution of Missouri as it attempts to impair the obligation of contract, retrospective in its operation and is unconstitutional and void. Said Section 15, Article 2, provides as follows: "That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be passed by the General Assembly." 12 C.J. p. 1020, sec. 646; State ex rel. v. Auditor of Public Accounts, 33 Mo. 290. Hence the question here involved is: Does Senate Bill 80 destroy a vested right? If it does, it is to that extent unconstitutional and void. The fees here involved are: (a) The Abstractor's fee. Sec. 9954, R.S. 1929. (b) The County Clerk's fee. Sec. 9969. R.S. 1929. (c) The County Collector's fees. Sec. 9969, R.S. 1929. (d) The back tax attorney's fee of three dollars for each suit instituted. Sec. 9952, R.S. 1929. (e) The back tax attorney's commission of ten per cent. Sec. 9952, R.S. 1929. (f) The fees of the justice of the peace. Sec. 9969, R.S. 1929. (g) Fees, constable and sheriff. Sec. 9969, R.S. 1929. In addition to this right of the attorney appointed by the collector being recognized by the decisions of this court, Sec. 658, R.S. 1929. To the same effect Sec. 660, R.S. 1929. Senate Bill 80 is invalid because it further violates the provisions of Section 15, Article 2 of the Constitution of Missouri and which prohibits the passage of any law by the General Assembly of the State which is ex post facto, or impairs the obligation of contracts, or which is retrospective in its operation. The contracts were valid, the officers and every person entitled to payment under the present existing law had earned certain fees to the time of passage of Senate Bill 80 and said Senate Bill 80 seeks to go back. No benefits in the future and the sole intended benefits is to release something accrued in the past, does not repeal any previous law, and is void and of no effect. Sec. 15, Art. 2, Mo. Constitution; Society for Propagation of the Gospel v. Wheeler, 2 Gall. 105; Crump v. Guyer, 157 P. 321; St. Louis to Use, etc. v. Clemens, 52 Mo. 144; Leete v. Bank, 115 Mo. 199; Smith v. Dirckx, 283 Mo. 198; Reed v. Swan. 133 Mo. 108; Rucking Const. Co. v. Withernell, 290 Mo. 558; Gast Realty Inv. Co. v. Schneider, 296 Mo. 700; Hawkins v. Smith, 242 Mo. 688, 147 S.W. 1042; Greenwood Appt. v. Railroad Co., 105 U.S. 13, 26 L.Ed. 961; Gladney v. Sydnor, 172 Mo. 318; State ex inf. v. Curtis, 319 Mo. 316; District v. Turney, 235 Mo. 80; State ex rel. v. Hughes, 296 Mo. 1; Hendrickson v. Apperson, 245 U.S. 105, 62 L.Ed. 178; Cole v. Drainage Dist., 270 U.S. 46, 70 L.Ed. 463; Olcott v. Supervisors, 83 U.S. 382. And is invalid because of the violation of said sections in that it deprives every person who has a vested interest by contract or by law, and they were operating under valid rights, in an official and under contractual positions, and the rights which they acquired in this respect cannot be destroyed by enacting a law such as Senate Bill 80 to the detriment of their just rights without due process of law. Sec. 30, Art. 2, Mo. Constitution: Sec. 1, Amend. 14 U.S. Constitution; Due Process of Law, Lucius Polk McGhee, ch. 1, p. 1; St. Louis v. Mo. Pac. Ry. Co., 278 Mo. 205, 211 S.W. 671; Junden v. Harris, 153 Mo. App. 652; Ludlow-Saylor Wire Co. v. Wailbrink, 275 Mo. 239; McAllester v. Prichard, 287 Mo. 494; State v. Julow, 129 Mo. 163; Presbytery v. First Pres. Church, 80 N.J.L. 572, 78 A. 210; Royston v. Miller, 76 F. 53; Kock v. Mo. L. Trust Co., 181 S.W. 44; McGhee v. Walsh. 249 Mo. 266; State ex rel. v. Ashbrook, 154 Mo. 375; Hawkins v. Smith, 242 Mo. 688, 147 S.W. 1042; State ex rel. v. McKelvey, 301 Mo. 1; State ex rel. v. North, 304 Mo. 607; In re Flukes. 157 Mo. 125. Said Senate Bill 80 is invalid because it attempts to divest vested right of the parties interested, as well as the school districts and the various funds of the various branches of the state government county schools and various other funds are involved and which were accrued prior to the passage and approval of so-called Senate Bill 80, and they cannot be divested destroyed or abated by this said act of the Legislature to do so, which violates Section 30, Article 2 of the Constitution of Missouri and Section 1. Amendment 14 of the Constitution of the United States by taking property without due process of law. Sec. 30, Art. 2, Mo. Constitution; Sec. 1, 14th Amend. of Constitution U.S.; McManus v. Park, 287 Mo. 109; McGhee v. Walsh, 249 Mo. 266; Yellow Creek Drg. Dist. of Chariton Co., 240 S.W. 203; State v. Julow, 129 Mo. 174; Hawkins v. Smith, 242 Mo. 688, 147 S.W. 1042; Presbytery v. First Presby, Church, 80 N.J.L. 572, 78 A. 210; Gladney v. Sydnor, 172 Mo. 318; Munden v. Harris, 153 Mo. App. 652; Wire Co. v. Wallbrink, 275 Mo. 239; McAllester v. Prichard, 287 Mo. 494; Kock v. Mo. L. Trust Co., 181 S.W. 44; State ex rel. v. Ashbrook, 154 Mo. 375; Fall River Irrigation Ditch v. Mt. Shasta 259 P. 44; Cassard v. Tracy, 27 So. 374, 52 La. Ann. 834, 49 A.L.R. 272; Hoeft v. Sup. L. Knights of Honor, 45 P. 186, 113 Cal. 91, 33 L.R.A. 174; Fisher's Negroes v. Dabbs, 14 Tenn. 154; Young v. Jones, 54 N.E. 235, 180 Ill. 216; Grinder v. Nelson, 9 Gill. 299, 52 Am. Dec. 694; Royston v. Miller, 76 F. 53; 40 Cyclopedia of Law and Procedure, 199; U.S. Code Annotated, Const., 14th Amend pp. 3 to 421; Buchanon v. Worley, 245 U.S. 60, 62 L.Ed. 149; Ins. Co. v. Cheek, 259 U.S. 530, 66 L.Ed. 1044; Society for Propagation of the Gospel v. Wheeler, 2 Gall. 105.
John C. Meredith and Meredith Harwood, amicus curiae.
(1) Senate Bill No. 80 does not conflict with Section 51. Article 4 of the Constitution of Missouri as it does not abate the tax but removes the penalties, interest and costs which are no part of the tax but are in the nature of penalties and fines for delinquency by legislative act and hence can be removed by legislative act. Jones v. Williams, 45 S.W.2d 130, 79 A.L.R. 983; Commonwealth v. Standard Oil Co., 101 Pa. 150; Colby v. City of Medford, 85 Or. 485, 167 P. 500; State ex rel. First Thought Gold Mines v. Superior Court, 93 Wn 433, 161 P. 77; Pierce v. Coos County, 115 Or. 300; State v. Railroad Co., 100 Tex. 153; Henry v. McKay, 3 P.2d 145, 77 A.L.R. 1025; League v. Texas, 184 U.S. 156; Town of Belvidere v. Railroad Co., 34 N.J.L. 193, 87 N.J.L. 353; Livesay v. De Armond, 284 P. 166, 131 Or. 563; Webster v. Auditor General, 121 Mich. 668. (2) Senate Bill No. 80 does not violate Section 15, Article 2, of the Constitution as to the impairment of the obligations of a contract or retrospective operation of a statute, as penalties for back taxes are not contractual but are creatures of statute and the same power that creates can remove. A public officer or any of his employees have no contractual right as to their terms of office or their compensation or any vested right in either. All of their rights are subject to legislative control. State ex rel. Attorney-General v. Davis, 44 Mo. 129; Wilcox v. Rodman, 46 Mo. 322; Westberg v. City of Kansas, 64 Mo. 493; Primm v. Carondelet, 23 Mo. 22; State ex inf. Crow. Attorney-General v. Evans, 166 Mo. 347; State ex rel. Strait v. Brooks, 293 S.W. 271; Gregory v. Kansas City, 244 Mo. 523; State ex rel. v. Davis, 44 Mo. 129. (3) The State in its sovereign power to tax and raise revenue for state purposes or under its police power can pass any legislation considered necessary by the General Assembly for these purposes and any contract or vested right of the individual is made subject to this reserve power of the State as the rights of the individual are subject to whatever burden may be imposed by the State for the general welfare. McManus v. Park, 287 Mo. 117; Abbott v. Mining Co., 255 Mo. 384; Houck v. Drainage District, 248 Mo. 373; State ex rel. v. Kansas City, 276 S.W. 389; State v. Pub. Serv. Comm., 272 S.W. 973, 275 Mo. 209; Railroad Company v. Transbarger, 238 U.S. 67; Cape Girardeau v. Railroad Co., 267 S.W. 601; Railroad Co. v. Pub. Serv. Comm., 281 Mo. 52, 219 S.W. 380; Bolt Nut Co. v. Light Power Co., 204 S.W. 1074.
McCune, Caldwell Downing for The School District of Kansas City, amicus curiae.
(1) A ministerial officer cannot question the constitutionality of a statute. State ex rel. Ry. Co. v. Becker, 328 Mo. 541; State ex rel. Wiles v. Williams, 232 Mo. 56; State ex rel. Railroad Co. v. Johnston, 234 Mo. 338. (2) Senate Bill No. 80 is not in conflict with any provision of the Constitution of Missouri, or of the Constitution of the United States. (a) Section 51, Article IV and Section 53 of Article IV of the Constitution of Missouri should be construed together so as to give effect to both sections. (b) The provisions of Section 53 of Article IV prohibit only the passage of local or special laws with reference to the matters mentioned in the section. (c) Penalties, interest and costs are no part of the tax, but provide a method to induce the taxpayer to pay promptly. 1 Cooley's Constitutional Limitations (8 Ed.) pp. 127, 128, 129; Jones v. Williams, 45 S.W.2d 130; State ex rel. Pierce v. Coos County, 115 Or. 300, 237 P. 678; Livesay v. De Armond, 284 P. 166. Section 9950, Revised Statutes of Missouri, 1929, authorizes the county court to compromise taxes, and Section 9951 authorizes the collector to strike delinquent taxes from the back tax books. The Act of the Legislature of Missouri approved April 1, 1895, authorized the acceptance of the original amount of taxes relieved of penalties, interest and costs. Laws 1895, pp. 243, 244; State ex rel. Bauer, Collector, v. Edwards, 162 Mo. 660; St. Francis Levee District v. Dorroh, 316 Mo. 409. Section 9914, Revised Statutes of Missouri, designates the sum of one per cent per month to be collected by the collector as a "penalty." Railroad Co. v. West, 139 Ind. 254, 37 N.E. 1009; State ex rel. First Thought Gold Mines, Ltd., v. Superior Court, 93 Wn. 435; Henry v. McKay, 3 P.2d 145. (d) The act does not violate any of the provisions of Section 53. Article IV of the Constitution of Missouri cited in respondent's return and answer. Section 53 provides that the General Assembly shall not pass any local or special law remitting fines, penalties or forfeitures. It does not forbid passage of general laws with reference to these subjects. (e) The act is not an ex post facto law, the passage of which is forbidden by Section 15, Article II of the Constitution. State ex rel. Jones v. Mallinckrodt Chemical Works, 249 Mo. 730. (f) The act is not a retrospective law, unless the effect of it is to impair some vested right. Clark v. Railroad Co., 219 Mo. 532; Squaw Creek Drainage District v. Turney, 235 Mo. 92; Gibson v. Railroad Co., 225 Mo. 481; Abbott v. Mining Co., 255 Mo. 383. (g) Respondent has no vested right to the fees allowed him by statute for collecting taxes. Givens v. Daviess County, 107 Mo. 608; State ex rel. Wayne County v. Hackman, 272 Mo. 607; 12 C.J. 973; Jones v. Williams, 45 S.W.2d 130. (h) This act does not violate provisions of Section 10, Article I of the Constitution of the United States, and does not impair the obligation of contracts. Butler v. The Commonwealth of Pennsylvania, 10 How. 414. (3) This act should be given effect as a matter of public policy and interpreted in harmony with existing social and economical conditions. Williams v. The City of Annapolis, 77 L.Ed. 532. (4) Opinion of the Attorney-General and the action of the State Auditor. Jones v. Williams, 45 S.W.2d 130; 2 R.C.L. p. 920.
This is an original proceeding in mandamus brought by the Attorney-General as relator, in which he seeks to compel the respondent, Collector of Revenue for Jasper County, to accept the tender made by one W.E. Bates, the owner of real estate in that county upon which general taxes for the years 1931 and 1932 have become and are delinquent, of the original taxes assessed and levied against said lands, in full of said taxes for said years and relieved of all penalties, interest and costs, in compliance with the requirement of Senate Bill No. 80, approved April 13, 1933, and in effect on the same day under its emergency clause, passed by the Fifty-seventh General Assembly and operative until January 1, 1934, when it expires by its own limitation. Respondent entered his voluntary appearance, and by stipulation waived the issuance and service of our alternative writ and filed his return to the relator's petition considered as such writ.
Certain individuals were permitted to intervene, who filed a joint return in which the respondent himself appears to have joined also; and joinder of issues was completed by a motion filed by relator for judgment on the pleadings.
In his return respondent admitted said tender and the enactment of said bill, and sought to justify his admitted refusal of the tender upon substantially the following grounds: (1) That said act violates Section 51 of Article IV, Subdivisions 22, 23 and 28 of Section 53 of said Article IV, Sections 15 and 30 of Article II of our Constitution and Section 10, Article I of the Federal Constitution and Section 1 of the Fourteenth Amendment thereof; (2) that under the law the respondent receives a flat salary of $4,000 and that all his lawful commissions for collection of both delinquent and current taxes belong to and are payable to the county and are indebtedness to the county; and (3) that it is respondent's duty to collect and pay over both the taxes and interest penalties to the county and to pay the interveners their fees. These interveners are, respectively, the attorney employed by the collector to bring suits for delinquent taxes, the circuit clerk, the county clerk, the sheriff, a constable and a justice of the peace, all of whom, in their return claim they are, respectively, entitled to certain "costs, penalties and attorney's fees" for which the respondent would render himself individually liable should he accept the tender made by Bates, and further claim the act in question is unconstitutional as in respondent's return stated.
This case involves the same principles of law and similar facts as in the case of State ex rel. Eugene L. Crutcher, relator, v. Edmond Koeln, as Collector of the City of St. Louis, 332 Mo. 1229, 61 S.W.2d 750. The opinion there substantially covers and therefore rules this case. However, some additional questions of law are presented in the instant case which we deem it proper to consider.
The main contention here seems to be upon the nature of the right of respondent's attorney employed to aid him in the collection of delinquent taxes by suits to be brought under a contract between him and respondent, approved by the county court, relative to the attorney's fees. While the rights of the attorney are predicated and asserted upon said contract, the rights of the collector and the intervening clerks, sheriff, constable and justice of the peace are necessarily based upon their rights to their fees as public officers. The contention, broadly stated is that the attorney has under his contract a vested right in what he terms his "earned fees," of which the act would deprive him contract to the constitutional provisions considered in the Koeln case supra and contrary also to other constitutional provisions now to be noted.
The attorney's right is asserted to be a vested one the impairment of which is prohibited by Section 15. Article II of our Constitution, which prohibits ex post facto laws, or laws impairing the obligation of contracts or retrospective in their operation.
This court en banc defined such right thus: (State ex rel. Wayne County v. Hackmann, 272 Mo. l.c. 607, 199 S.W. 990) "By a vested right we mean one which is absolute, complete and unconditional (Orthwein v. Ins. Co., 261 Mo. l.c. 665), to the exercise of which no obstacle exists, and which is immediate and perfect in itself and not dependent upon a contingency. [Young v. Jones, 180 Ill. l.c. 221; Bailey v. Railroad (Del.), 4 Harr. l.c. 400; Day v. Madden, 9 Colo. App. 464; Royston v. Miller, 76 Fed. l.c. 53.]" From the observations made in the Koeln case, supra, it clearly appears that the right now alleged by the attorney does not meet the requirements of this definition. Yet, since that matter is pressed here, it will receive further exposition.
The attorney's fees are provided for by Section 9952 of the Revised Statutes of 1929 which, after providing that the collector shall proceed to enforce the payment of delinquent taxes charged on any lot or tract, by suit to enforce the lien thereon, further provides in substance that for such purpose the collector shall have power, with the approval of the county court, to employ such attorneys as he may deem necessary, who shall receive as fees such sum, not to exceed ten per cent of the taxes actually collected and paid into the treasury, and an additional sum, not to exceed $3 for each suit instituted for the collection of such taxes; which said sum shall be taxed as costs in the suit and collected as other costs and no attorney shall receive any fee or compensation for such services except as in this section provided. From the statute itself it is obvious that the attorney's right to fees does not accrue pari passu with the rendering of each act of service in a given case but accrues as a whole after collection made or judgment rendered. [12 C.J. 973; Coles v. Madison County, 1 Ill. l.c. 157.] And, contrary to an argument pressed, the Legislature having fixed one definite and certain mode of payment, no other is permissible, and there can be no application of the doctrine of quantum meruit. [Greene County v. Lydy, 263 Mo. 77, 172 S.W. 376.]
The contract entered into between the collector and his attorney, and approved by the county court, imposes no liability upon either the State, county or the collector. It only fixes the status of the attorney as to his right to compensation and the amount thereof when in the tax suit the liability therefor becomes fixed upon the taxpayer's property by the final judgment in the case. [Butler v. Sullivan County, 108 Mo. l.c. 638, 18 S.W. 1142.] And, as stated in State ex rel. Kemper v. Smith, 13 Mo. App. l.c. 423, "It is clear, then that unless the proceeding result in collecting a sum of money belonging to the public revenue, neither the collector nor his attorneys can claim any costs in the cause." [3] The same rule necessarily applies to the other interveners, who as public officers have no contractural right as to their terms of office or their compensation or any vested right in either, the same being subject to legislative control. [State ex rel. Attorney-General v. Davis, 44 Mo. 129; Givens v. Daviess County, 107 Mo. l.c. 608, 17 S.W. 998; State ex inf. Crow, Attorney-General, v. Evans, 166 Mo. 347, 66 S.W. 355; Gregory v. Kansas City, 244 Mo. 523, 149 S.W. 466.] The fees of the collector and his attorney and of the interveners are subordinate to the general legislative power to impose, increase, diminish or remit penalties for tax delinquencies; and no vested right of any of them is impaired by the remission. [Jones v. Williams (Tex. Sup. Ct.), 45 S.W.2d l.c. 139, 140, and cases there cited.]
It having been determined that the respondent and the interveners have no vested interest or property right in the penalties remitted by Bill No. 80, the act does not offend against the due process clauses of the Fourteenth Amendment nor Section 10 of Article I of the Constitution of the United States nor our Section 30 of Article II.
In this situation the legislative power to remit the penalties involved here is well settled in principle. In Maryland v. B. O. Railroad Co., 3 Howard, 534, it is held, that the Legislature has a right to remit penalties imposed by law. "In this aspect of the case," the court said at page 552, "and upon this construction of the act of Assembly we do not understand that the right of the state to release it is disputed. Certainly the power to do so is too well settled to admit of controversy. The repeal of the law imposing the penalty, is itself a remission. [1 Cranch, 104; 5 Cranch. 281; 6 Cranch, 203, 329.] And in the case of the United States v. Morris, 10 Wheat. 287, this court held, that Congress had clearly the power to authorize the secretary of the Treasury to remit any penalty or forfeiture incurred by the breach of the revenue laws, either before or after judgment; and if remitted before the money was actually paid, it embraced the shares given by law in such cases to the officers of customs, as well as the share of the United States." [See, also, 23 Am. Eng. Ency. of Law, pp. 506-508 and 510 (1 Ed.) and cases cited.]
The act under review appears to be a remedial one and relates to procedure in the collection of delinquent taxes, and is not within the ban of Section 15 of Article II. Of remedial statutes this court in Welishear v. Kelley, 69 Mo. 343, l.c. 354, said: "The position that the Act of 1887 is retrospective in its operation, and therefore, unconstitutional, we think untenable. It simply provides a different remedy from that which the State at the date of its approval had for the collection of back taxes and of the right of the Legislature to change the remedy in such a case as this there can be no doubt. [Cooley's Const. Lim. 361; Porter v. Marriner, 50 Mo. 367.] Judge COOLEY says: 'As a general rule, every State has complete control over the remedies which it offers to suitors in its courts. It may abolish one class of courts and create another. It may give a new and additional remedy for a right already in existence. And it may abolish old remedies and substitute new.'" [See, also, McManus v. Park, 287 Mo. l.c. 115 et seq., 229 S.W. 211; State ex rel. Maguire v. Draper, 47 Mo. 29; State ex rel. McRee v. Maguire, 47 Mo. 35.] The Thirty-eighth General Assembly passed an act (Laws 1895, p. 243) remitting penalties which seems to have furnished the pattern for No. 80. Unlike the latter the former conditioned the remission in instances where suits had been filed, upon the taxpayer's paying the costs together with attorney's fees. In construing the latter provision this court in State ex rel. v. Edwards, 162 Mo. 660, 63 S.W. 388, held, that the act simply gave the taxpayer an opportunity to avoid the costs and penalties by tendering the amount of the original tax before suit was brought and before the act expired by limitation. [6] So we think that under a proper construction of the statute assailed in the instant case the filing of suits for delinquent taxes and penalties is not prevented, but that penalties are remitted, in the manner provided in No. 80 upon proper tender of payment of the original taxes without penalties, fees or costs before judgment rendered (except as noted later).
Nor do the provisions of Sections 658 and 660, Revised Statutes 1929, interfere with or prevent the operative effect here attributed to the act. They are declaratory general statutes and as such are usually accorded — and especially in proceedings involving vested rights — "the same effect as a saving clause in the repealing statute. A general statute does not bind the Legislature but in the absence of anything to the contrary, it is presumed that it was intended to apply." [1 Sunderland on Statutory Construction, p. 558; see, also, St. Joseph Board, etc., v. Gaylord, 86 Mo. 401, 406.]
With respect to the act here assailed we do not yield to the presumption just stated, since it is overwhelmed by the language of the act itself, which declares the existence of a situation arising from lack of public revenue, so grave and exigent as to imperil the functioning of the State government itself in its essential branches, and implies that the remedy lies in changing the mode of collection, and thereby accelerating the collection of delinquent taxes through the remission of the retarding penalties. This consideration impels the conclusion that in its fostering care for the transcendent public interest the Legislature intended that the act should suspend all provisions of law repugnant to the same or out of harmony therewith.
All question necessary to be discussed having been determined, it seems advisable, before closing this opinion, to observe briefly the effect of the change in the law upon the back-tax suits that have been filed, or may be filed, subsequently to the date, April 13 of the current year, when this new law became effective. Owing to the alternative options granted the taxpayer, with periodically and increasingly reduced advantage to him in the avoidance of penalties, a question of some difficulty is presented pertinent to the effect upon suits pending during any part or all of the entire period covered by the act. [8] Concerning this matter it is our view, (1) that none can proceed to final judgment before the expiration of the act on January 1 next; (2) a taxpayer exercising the first option, may pay the original tax without more and all penalties are thereby discharged and his pending tax suit, if any, will be abated; (3) exercising the second option, the taxpayer, if suit be pending against him, must in addition to the original tax pay one-fourth of all penalties formerly chargeable in full discharge of the whole and the suit will likewise abate; and (4) the same process and result will apply in a general way to the remaining options. We think this mode of procedure seems practical and just, and accomplishes the legislative purpose, as we have determined it.
Our alternative writ of mandamus is hereby made peremptory. All concur; Leedy, J., in the result.