Road Improvement District No. 4 v. Smith

Hart, J., (after stating the facts). The correctness of the decision of the court below depends upon the construction to be placed upon § 12 of the act creating the road improvement district in question. See Boad Acts of 1919, vol. 2', p. 2286. Section 12 reads as follows: “The secretary of the board shall each year, on or before the first day of January, make out and deliver to the collector of Cleveland County a book showing all lands, railroads and tramroads, telegraph, pipe and telephone lines and street-car lines within the district, in parcels as the same appears -upon the county assessment book of Cleveland County, the name of the owner there appearing, and the amount of taxes to be collected for Road Improvement District No. 4 in Cleveland County, as levied by the commissioners of said district, and it is made the duty of the collector of said county to collect said taxes, along with the other taxes, and for his services the collector shall have and receive the same commission that he is allowed for collecting the taxes of the county and State. Said taxes, when collected, shall be paid over to the treasurer of the district at the same time he pays over the county funds. If the collector shall fail to collect the taxes hereby provided for, along with the other taxes, he shall be subject to a penalty of one hundred dollars for each instance in which he shall collect from an individual the other taxes and omit tbe road tax provided for herein, unless the said road tax has been enjoined by a court of competent jurisdiction, the said penalty to be recovered in a suit by the commissioners to the use of the district. ” The section makes it the duty of the collector to collect the road taxes along with tbe other taxes, and provides that be shall receive the same commission therefor that be is allowed for collecting the taxes of the county and State. Section 10071 of Crawford & Moses’ Digest providing for the fees to be allowed the collector for collecting State, county and general taxes, is as follows: “Said collector shall be allowed commissions for collecting the revenue as follows: For the first ten thousand dollars collected, five per cent, in kind; for all sums over ten thousand dollars and under twenty thousand dollars collected, three per cent, in kind; for all sums over twenty thousand dollars collected, two per cent, in kind.” In Wilson v. State, 51 Ark. 212, it was held that the commission of the collector is limited by this statute to five per cent, upon the first ten thousand dollars of the whole amount of taxes collected, three per cent, upon the next ten thousand, and two per cent, upon the excess over twenty thousand. dollars, where the aggregate amount collected exceeds the latter sum. . The decision of the circuit court was based upon the theory that the compensation of the collector for collecting the road taxes should be made under the rule laid down in the case just cited, without taking into consideration the amount of State and county taxes collected by him. This was error. Section 12 of the road act provides that the secretary of the board shall make out and deliver to the collector a book showing all the lands in the district in parcels as the same appears upon the county assessment book, the name of the owner there appearing, and the amount of taxes to be collected for the road improvement district as levied by the commissioners of the district. It is made the duty of the collector to collect said 'taxes along with the other taxes, and for his services the collector shall have and receive the same commission that he is allowed for collecting the taxes of the county and State. Thus it will be seen that the State, county and road taxes are collected at the same time and in the same manner. The act provides that the road taxes shall be collected as other taxes, and that the collector shall have the same compensation for collecting them. The Legislature evidently intended the collector to be paid in the same way 'and at the same rate at which he was paid for collecting the county and State. That is to say, for the purpose of ascertaining the compensation due the collector, the gross amount of the road taxes collected each year shall be added to the total amount of the county and State taxes collected by him for the same year, and upon the whole the collector’s commission shall be fixed by § 10071 of Crawford & Moses’ Digest, as construed in the case above cited. As bearing on the question and as tending to sustain the construction we have placed upon the statute see McGlone v. Womack (Ky.), 111 S. W. 688, 17 L. R. A. (N. S.) 855. It follows that the judgment must he reversed, and the causé will be remanded with directions to overrule the demurrer to the complaint, and for further proceedings according to law and consistent herewith.