State Ex Rel. Buder v. Hackmann

*346 DAVID E. BLAIR, J. Original proceeding by mandamus to compel the State Auditor to approve certain accounts of relator. The petition was filed and respondent entered his appearance and waived the issuance of our alternative writ. The facts are undisputed and are gleaned from the amended petition, 'respondent’s amended return and relator’s reply thereto. A demurrer was filed to a portion of relator’s reply. Relator is assessor of the city of St. Louis and respondent is auditor of this State. As such assessor relator filed with respondent and respondent refused to approve the following account: Expense U. S. postage (receipts heretofore filed with respondent) ........ $ 12.00 ’Expense clerk hire (pay roll heretofore filed with respondent) ............ 3,123.80 *347 County Clerk Work — See. 12997, R. S. 1919 — Extending tax on 1318 returns at 3 cents each. ................... 39.54 Making tax hook for Collector at 10 cents per 100 words and figures (26,670) . 26.67 Fifty cents per $100,000 váluation ..... 7.50 One-tenth of 1% total tax ($194,429.68) 194.42 Piling and safekeeping 1747 lists at \ cent each ............................ . 8.74 Making income assessment hook, 10 cents per 100 words ................... 26.67 Assessor’s Work — Sec. 12816, R. S. 1919— Taking 509 corporation returns at 20 cents each ...................... 101.80 Taking 1240 individual returns at 20 cents each ........................... 248.00 Entering 311 corporation returns at 3 cents each ...................... 9.33 Entering 1007 individual returns at 3 cents each ........................... 30.21 $3,828.68 Relator is the proper officer for taking and receiving income tax returns in the city of St. Louis. The account rendered covers the period from May 1, 1922, to December 1, 1922. The controversy is as to the amount for which the State is liable. It is admitted that, save for the question of recoupment to he noticed later, whatever is due relator upon such account is due and payable to him by the State and that there are sufficient funds in the State Treasury appropriated and unexpended to pay the account. Respondent admits that relator is entitled to compensation for, and we may therefore omit from further consideration, certain items in said account, as follows: Expense IT. S. postage ................. $ 12.00 Extending tax on 1318 returns at 3 cents each ............................. 39.54 *348 Making tax book for Collector at 10 cents per 100 words and figures .......... 26.67 50 cents per $100,000 valuation ........... 7.50 One-tenth of 1% on total tax ........... 194.42 Entering 311 corporation returns at 3 cents each ............................. 9.33 Entering 1007 individual returns at 3 cents each ............................. 30.21 Respondent denies that relator is entitled to any .compensation whatever for the following items of said account: Expense of clerk hire ................ $3,123.80 Making income assessment book at 10 cents per 100 words -.............. 26.67 As to the following items, respondent admits relator is entitled to part of the compensation claimed, to-wit: a. Item of filing and safekeeping 1747 lists at i cent each, amount claimed ........ $8.74 Respondent concedes relator is entitled to $6.59 for 1318 lists and denies liability for 431 lists, amounting to $2.15. b. Item of taking 509 corporation returns at 20 cents each, amount claimed, .... $101.80 Respondent concedes relator is entitled to $62.20 for 311 corporation returns and denies liability for 198 corporation returns, amounting to $39.60. c. Item of taking 1240 individual returns at 20 cents-each, for which relator claims $248.00 Respondent concedes .relator is entitled to $201.40 for taking 1007 such returns and denies liability for taking 233 such returns, amounting to $46.60. I. The main controversy centers around relator’s, claim for clerk hire, in the sum of $3123.80. The compensation of assessors for the performance of ?, . - ,. -, '. , , . their duties under our income tax law is provided for by Section 13124, Revised Statutes 1919, which reads as follows: *349 “Assessors and collectors shall be. compensated in like manner and in like amounts as for the assessments of other taxes. Provided, that in counties in which the assessors and collectors are paid a fixed salary, that in addition to the salary paid, they shall be permitted to charge for work performed in the assessing and collecting of the income tax, as provided by this article, the same fees as are charged by assessors and collectors whose salary is not fixed by law, and which fees so charged by said assessors and collectors for services rendered in assessing and collecting income tax shall be paid by the State. ’ ’ Relator receives a salary as assessor of the city of St. Louis and is entitled to receive in addition the same compensation for performing his duties under the income tax law as assessors not upon a salary are entitled to receive. To support his claim for allowance of clerk hire relator relies upon Section 13116, which is as follows: “Every person who has a taxable income shall, on the first day of January of each year, or as soon thereafter as practicable, apply in person or by mail to the assessor of the district in which such person resides, for a proper blank on which to make a return, which said return shall be filed with the assessor on or before the first of Márch next following. The assessor shall be furnished all necessary printing, stationery, postage and office equipment, and he and his deputies shall be entitled to receive their actual necessary expenses incurred in the performance of their duties; all such expenditures shall be audited and paid out of the state or county treasury in the same manner as other similar expenses are audited and paid.” The words “he and his deputies shall be entitled to receive their actual necessary expenses incurred in the performance of their duties” are the particular words of the section to which relator looks for authority to charge the item of clerk hire. We think those words do not constitute such authority. *350 Section 13124 provides for the compensation of the assessor. Therefore, the words quoted from Section 13116 have no reference to the compensation of the assessor himself, and the same consideration argues against a meaning for the words as referring to compensation or salary to deputies, assuming that deputies include clerks. Even if clerk hire may be regarded as an expense item to the assessor, no such expense item would be incurred by his deputies. The words ‘ ‘ actual necessary expenses ’ ’ are used in the same sense in referring to the assessor and to his deputies. Section 13124 provides that assessors shall be compensated in like manner and in like amounts as for assessment of other taxes. Their compensation for assessment of other taxes, is fixed by Section 12816, as amended by Laws 1921, page 671. Such compensation is in lieu of salary, except where a salary is provided by law. In that case the salary provided for is in lieu of fees. Section 12762 provides that the assessor may appoint as many deputies as he needs, “to be paid out of the fees allowed to such assessor.” It is, therefore, the plain purpose of the statute, where the assessor is compensated upon the fee basis, that he shall pay out of such fees all of the salaries of deputies (including clerks) in making such assessments. Section 13124 provides that he shall be compensated in the same manner for making and receiving income tax returns. There is, therefore, no escape from the conclusion that the assessor must pay salaries of all necessary deputies and clerks out of the fees allowed him for taking and receiving income tax returns. The “actual necessary expenses” provided for do not include salaries of any character. The clear meaning of Sections 13116 and 13124 is that the assessor, in addition to the fees allowed by law, shall be entitled to have furnished to him, without deduction from such fees, all his necessary printing, stationery, postage and office equipment and that he shall be re-imbursed for all outlays made by himself and his deputies by way of expenses in doing the work, *351 for the doing of which work he and they are fully paid out of the fees allowed by law. Before the State can be held liable for the payment of a fee or expense incurred in its behalf, the person or officer claiming such fee or expense must be able to point out the law authorizing such payment. [Williams v. Chariton Co., 85 Mo. 645; State ex rel. v. Wilder, 197 Mo. 1. c. 32; Sanderson v. Pike Co., 195 Mo. 1. c. 605.] This relator has not done. The rule is that mandamus will not lie unless the party asking such relief has established his clear legal right thereto. [State ex rel. v. McIntosh, 205 Mo. 1. c. 635; State ex rel. v. Lesueur, 136 Mo. 1. c. 459.] The words “he and his deputies shall be entitled to receive their actual necessary expenses incurred in the performance of their duties,” fall far short of constituting clear and satisfactory authority for the payment by the State of clerk hire for assessors. The argument of hardship and that an officer should not be compelled to incur a financial loss, in performing the duties incident to his office, cannot be considered by the courts in passing upon the rights- of relator, as fixed by the statute. Failure to provide a salary or fee for a duty imposed upon an officer by law does not excuse his performance of such duty. [State ex rel. v. Brown, 146 Mo. 1. c. 406.] It may be that an assessor actually sustains a financial loss in the performance of his duties under our State Income Tax Law. But such fact is for consideration by the Legislature, and not by the courts. In view of what we regard as the plain provision of the statute that clerk or deputy hire shall be paid by the assessor out of the fees received by him, the cases of Ewing v. Vernon Co., 216 Mo. 681, and Harkreader v. Vernon Co., 216 Mo. 696, cited and relied upon by rélator, need not be discussed. *352 *351 II. It does not appear that relator is entitled to separate compensation for the item, “Making income assessment book at 10 cents per 100 words, $26.67.” This *352 charge seems to be for clerical work upon a book kept for that purpose. No statutory authority for the charge is pointed out. Relator contends that it is authorized by Section 13117. We do not think so. That section provides that a separate book, known as the “Income Assessment Book” shall be furnished to the assessor and the cost of furnishing such book in blank form certainly should be allowed him. But the statute does not contemplate that the entries therein shall be made before the book is turned over to the assessor. Its entries must be made by the assessor after the returns are in and he has ascertained the names ‘ ‘ of all persons having a taxable income.” If this is not true, it is a strange coincidence that the item of making the completed tax book for the collector at ten cents per hundred words amounted to exactly the same figure, to-wit, $26.67. The latter item is undisputed. Any information the assessor may receive from lists of income taxpayers of the previous year or lists of employees receiving salaries of such amount as to make such persons apparently liable to pay an income tax, would be most useful in making up the assessor’s current “income assessment book,” but it does not appear that such names should be placed upon such book, unless such persons are liable for the tax for the current year. In any event, no authority is shown for compensation to the. assessor for copying into such book a list of names furnished by the State Auditor or any other person. III. Determination of the liability of the State to compensate relator for a part of the items for taking certain individual and corporation returns, depends upon what is meant by “taxable income.” Relator contends that the words “taxable income” relate to the source, class or nature of a given income, rather than to the amount thereof. But it is evident that both source and amount must be considered in determin *353 ing whether a given income is taxable. All incomes from sources not specifically exempted (Section 13109) over and above the further general exemptions and deductions provided for (Sections 13110 and 13111) are taxable. •Without entering into a consideration of fine shades of meaning of words, we are satisfied that “taxable income” means income which may be taxed after all exemptions and deductions have been allowed from the total income. Section 13116 plainly contemplates that only persons having a “taxable income” shall make returns, which means that only persons shall make such returns who have incomes from taxable sources of such size that something is left to which the tax may be applied after all lawful deductions are made. For receiving and filing such returns (Sec. 13116) the assessor is entitled to be compensated “in like manner and in like amounts as for the assessments of other taxes.” [Sec. 13124.] By Section 12816, Revised Statutes 1919, as amended by Laws 1921, page 671, assessors in counties of over 45,000' inhabitants are allowed twenty cents per list for all lists in excess of 3,000. This is the fee relator is entitled to receive. But this fee is payable for income tax returns made by persons having a “taxable income.” It is clear from the admitted facts that relator is entitled only to $62.20 for taking 311 corporation returns, and that he is not entitled to fees for taking 198 corporation returns “which did not report any income and on which no taxes were assessable.” Relator is entitled to $201.40 for taking 1007 individual returns and is not entitled to compensation for taking 233 such returns in which were reported “net incomes, the amount of which, however, were not sufficient to require the assessment of a tax. ’ ’ *354 *353 IY. Respondent admits that relator is entitled to one-half cent each for filing; and safekeeping 311 corpora *354 tion returns and 1007 individual returns, which are those reporting a taxable income, or a total of $6.59, as against the sum of $8.74, claimed by relator, for filing and safekeeping all returns. The statute (Sec. 12997) authorizes such a fee to be paid to the county clerk for filing, preserving and safekeeping ordinary assessment lists. If the returns must be preserved, Section 12816, as amended, authorizes that fee for such service, to be paid to the assessor. Section 13136 requires the assessor to destroy income tax returns within six months after the tax becomes due, unless the tax has not been paid. The clear implication therefrom is that an income tax return may be destroyed at any time prior to such six months, if the tax has been paid. It is evidently contemplated that income tax returns shall be kept and preserved, at least to that extent. But returns showing no taxable income are not required to be kept and relator is only entitled to a fee for safekeeping and preserving such returns or the sum of $6.59 for that item of his account. Y. We have thus found that $589.86 of relator’s account is properly due him from the State. Respondent contends that he may lawfully withhold the payment of this amount for the reason that he has previously overpaid relator on account of items, which he now claims relator was not entitled to receive when so paid. Such payments covered items for charges similar to those we have herein disallowed. Respondent claims this right under authority of the law of recoupment. There is no question under the record that respondent has previously paid relator money to which he was not entitled. Relator admits in his reply that, for the item of clerk hire alone, he received $1820.92 on a claim filed January 2,1922, and $8124.36 on his claim filed May 5,1922, as well as compensation for other items we have disallowed. Relator has not briefed the question of the right of respondent to recoupment for moneys improperly paid *355 out. He thus apparently concedes that, if he is not entitled to receive clerk hire and the other items in dispute, the law of recoupment applies. His refusal so to meet the issue on this point is a tacit admission that such course would avail him nothing, if he is and was not entitled to the compensation claimed. In State ex rel. Barker v. Scott, 270 Mo. 146, where a clerk of the county court wrongfully certified that he •had extended certain taxes and had been paid therefor by the State before such work was done, it was held that the State could recover money so paid under a mistake of law. But such recovery was not allowed in that case, because the work was subsequently done by the clerk. However, the right to recover money paid out under mistake of law under such circumstances was clearly recognized. The same rule had previously been laid down in Lamar Township v. Lamar, 261 Mo. 171. In distinguishing between payments under mistake of law by individuals and such payments by public officials, Judge Paris there said : “Certainly in a case like this of dealings between public officers with the public’s money, no excuse for invoking this rule can be found in logic, nor in our opinion can such excuse be found in the decided cases. The rule in such case is thus stated in 30 Cyc. 1315: ‘Although there are cases holding the contrary, the better rule seems to be that payments by a public officer by mistake of law, especially when made to another officer, may be recovered back.’ Ada County v. Gess, 4 Idaho, 611; Heath v. Albrook, 123 Iowa, 559; Ellis v. State Auditors, 10 Mich. 528; Allegheny Co. v. Grier, 179 Pa. St. 639; State v. Young, 134 Iowa, 505; McElrath v. United States, 12 Ct. Cl. 201.]” Certainly, if the State may, in a separate suit, recover back money paid by one of its officials to another public official under mistake of law, it may withhold money admittedly due such public official which is less in amount *356 than the sum previously paid Mm by mistake. We will not pursue the question further since relator has cited no authority to the contrary. For the reasons outlined, we hold that relator is not entitled to the peremptory writ, and it is ordered that it be denied. Ragland, White and Walicer, JJ., concur; Graves, G. J., and Woodson, J., dissent.