The judgment of the trial court and the majority opinion of this court both proceed on the theory that the provisions of Section 12316, Revised Statutes 1929, original enactment Laws 1881, page 225, are applicable and controlling as to compensation of county collectors in the collection of railroad taxes.
[1] Section 10044, Revised Statutes 1929, is a special law relating to the compensation of county collectors for collecting railroad taxes, first appearing as Section 6894, Revised Statutes 1879, being a part of Chapter VIII entitled "Assessment and Taxation of Railroads" which dealt specially and solely with this particular subject and constituted a separate article of Chapter 145 entitled "Assessment and Collection of the Revenue." This section was carried forward into each subsequent revision without change either in phraseology or position. While Section 12316 applies only to collectors in counties having township organization it is a general law with respect to taxes in such counties because it purports to cover all taxes that should be collected by such county collector. If a conflict arises between provisions of a general law and a special law that cannot be reconciled the conflicting provisions of the special law will prevail. "Where the special statute is later, it will be regarded as an exception to or qualification of, the prior general one; and where the general act is later, the special will be construed as remaining an exception to its terms, unless it is repealed in express words or by necessary implication." [In re Tevis v. Foley, 325 Mo. 1050, 1054, 30 S.W.2d 68; State ex rel. Buchanan County v. Fulks, 296 Mo. 614, 626, 247 S.W. 129; State ex inf. Barrett v. Imhoff, 291 Mo. 603, 617, 238 S.W. 122.]
Apparently recognizing the necessity of reconciling the conflicting provisions of these two statutes if the general statute is to be held controlling the writer of the majority opinion undertakes to do so by what appears to me to be a strained, unwarranted and disrupting construction of Section 12316.
As originally enacted in 1881 what is now Section 12316, Revised Statutes 1929, read as follows:
"The county treasurer in counties adopting township organization shall be allowed a salary by the county court as at present provided *Page 134 by law; the county collector for collecting and paying over the same shall be allowed a commission of two per cent on all corporation taxes, licenses, merchants' tax and tax on railroads, and five per cent on all delinquent taxes, which shall be taxed as costs against such delinquents and collected as other taxes:Provided, he shall receive nothing for paying over money to his successor in office."
Bearing in mind that in counties adopting township organization the county treasurer and ex officio collector is the only officer ever charged with the collection of corporation, license, merchant and railroad taxes, and that he is not charged with the collection of other taxes until after they have become delinquent and the township collectors have made their settlements with the county court, the plain meaning of this statute as originally enacted was that county collectors should receive a commission of two per cent on all of the four classes of taxes first enumerated whenever collected, to be paid out of the funds collected, and five per cent on all delinquent taxes, the latter to be taxed as costs and paid by the taxpayer. Section 6751, Revised Statutes 1879, carried forward with some changes into Revised Statutes 1929, as Section 9914, indicates January 1 next ensuing after the levy of taxes as the delinquent date for all taxes then unpaid. So, it seems clear that after January first county collectors were entitled to five per cent to be paid by the taxpayer on all taxes, regardless of class, that were then due and unpaid and thereafter collected by him, as well as the two per cent on the four classes first mentioned "for collecting and paying over the same."
[2] Section 12316 was amended in 1911, Laws 1911, page 425, merely by insertion of the words "back taxes" between the words "taxes" and "licenses." It is said in the majority opinion: "It is clear that by the amendment, the Legislature intended to change the commission allowed ex officio county collectors." Undoubtedly this is true, and I think the obvious purpose and effect of this simple amendment was to increase the aggregate commissions of such collectors by allowing them two per cent on all back taxes "for collecting and paying over the same," payable therefrom just as in the case of corporation, license, merchant and railroad taxes before the amendment.
But the majority opinion, without assigning any reason therefor, apparently adopts the view that the purpose of the amendment was to cut down the commissions of such collectors by depriving them of the five per cent they were previously entitled to on delinquent corporation, license, merchant and railroad taxes. In order to reach this conclusion the words "back taxes," which were evidently used only for the purpose of bringing another kind or class of taxes within the application of the two per cent commission clause, are artificially construed as an adjective clause modifying the four classes of taxes originally contained therein.
Such a forced reconciliation of Sections 10044 and 12316 disrupts *Page 135 the preexisting plan of compensation as to at least three classes of taxes and does violence to the plain meaning of the words "back taxes." As I view this case it should be determined by treating the above conflicts as irreconcilable and Section 10044 as controlling.
For the reasons above stated I respectfully dissent.