This was an action to recover a poll tax delinquent for the year 1907. The Butler county court for that year levied a poll tax of four dollars against the respondent, which, the evidence shows, he elected to pay in labor and so notified one Cleveland, the road commissioner of the district in which he lived and asked for tools with which to work on the roads which were denied.
All there is in this case, as shown by the testimony, is that several of the farmers of the road district had been paying their poll tax in money for many years and there was no work done on the roads. In the year 1907, they resolved to pay their poll tax in labor in order that the roads might get the benefit of a much-needed improvement. They accordingly sent two of their number to the road commissioner and notified him that they desired the privilege of working out their poll tax and asked the privilege of getting the road tools. Respondent testified that he went to Cleveland, the man who was boss and overseer of the tools, andi told him he was ready to and wanted to work out his poll tax. The only testimony in reply to this offered by the appellant was that of Cleveland, the commissioner, who, when asked if respondent applied to him to be allowed to work out his poll tax, took refuge under the very convenient and conventional subterfuge, “I don’t remember.”
This case was first tried before a justice of the *102peace with a jury which found for the respondent. An appeal -was taken to the circuit court of Butler county where another jury decided in favor of the respondent. The case was then appealed to the St. Louis Court of Appeals from which it has been transferred to this court.
The law governing the question under review is found in the Session Laws of 1901, pages 234 and 235. Section 9441 provides as follows: “Any taxpayer may pay the board the amount of poll tax due for the current year in money or labor, and if in labor it shall be performed when required by the commissioners, or their chosen representatives, . ... Provided, further, that the county court of any county may, in their discretion, by order of record require that all poll taxes shall be paid in money.”
There is no evidence in this case that the poll tax of respondent was required by an order of record to be paid in money. The testimony abundantly show’s that the commissioner or his representative was duly notified that the respondent had elected to pay his poll tax in labor, as the statute gave him a right to do, by working it out on the roads. The tenor of the statute is so manifest that there can be no misunderstanding of its import; and it became the duty of the commissioner upon receiving such notice to fix the time when he would require the work to be done and to notify the respondent, or “warn him out,” as it is usually expressed. Neither of these things were done and no opportunity such as the law requires wms afforded the respondent to pay his poll tax in labor upon the roads. It is unaccountable that so much effort should have been made in. this case to avoid the law and deny the respondent a statutory right so plainly written that a wayfaring man cannot misunderstand its language.
The judgment of the trial court is affirmed.
All concur.