(after stating the facts). The record shows that the drainage districts were organized under the general drainage act. Section 3618 of Crawford & Moses’ Digest, relative to the collection of drainage taxes in such districts, reads as follows:
“The amount of the taxes herein provided for shall be annually extended upon the tax books of the county, and collected by the collector of the county along with the other taxes, and for his services in making such collection the collector shall receive a commission of one per cent.; and the same shall by the collector be paid over to the county treasurer at the same time that he pays over the county funds. If any collector shall fail to collect the drainage tax 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 the drainage tax, unless the drainage tax has been enjoined by a court of competent jurisdiction, to be recovered in a suit brought by the commissioners to the use of the district; and the county clerk shall be subjected to a like penalty for each case in which he shall fail to enter the drainage tax on the tax books.”
The Tri-County Highway Road Improvement District was created under special act No. 186 of the Acts of 1919. Road Acts of 1919, vol. 1, p. 510. Section 21 of that act reads as follows:
‘ ‘ The county collector of each of the respective counties in which lands in said road improvement district are situated shall collect the several installments of the .assessments of benefits during each year at the time he collects the general taxes; and if he shall omit to advise any taxpayer of the amount of his installment of the .assessment of benefits during that year, at the time such taxpayer is paying Ms general taxes, lie shall he subject to a penalty of one hundred dollars for each instance, which may he collected by the commissioners by civil action or by deducting said penalty from any fee due the collector from said district. ’ ’
It is the contention of the collector that the effect of these statutory provisions is to prohibit him from accepting a tender of the State and county taxes on the lands in question unless the owners would pay the drainage and road taxes due and unpaid upon said lands at the same time.
The agreed statement of facts in this case shows that the plaintiffs tendered to the collector the amount of State, county and school taxes levied on their lands, but refused to pay the drainage and road improvement taxes on the ground that they had not been legally assessed and levied, and that they were going to contest the same The collector refused the tender on the ground that under the statute he was not allowed to collect the general taxes without also collecting the improvement district taxes. The object of this lawsuit is to compel him to receive the general taxes without the payment of the improvement district taxes.
In the absence of a statute to the contrary, a taxpayer always has the right to pay the amount of any one tax listed against his land while refusing to pay other taxes listed separately against it. Cooley on Taxation (3 ed.), vol. 2, pp. 808 and 809 ; 37 Cyc. 1164.
Among the cases cited in Cyc. is Goit v. Claw, 28 Ark. 516. In 'that case the court said that whether the owner of real estate shall pay all taxes or pay one kind and not another, or let his lands go to sale for all or part, are questions for him and not for the collector to determine. The question of whether this right of the landowner has been taken away by the drainage and road improvement district statutes set out above is the issue raised by this, appeal,
The primary object in the construction of statutes is to ascertain the intention of the Legislature from the language used, where that can be done. Tested by this rule, we do not think that either of the statutes referred to makes it obligatory upon the landowner to pay the local assessments imposed upon his land by the drainage improvement districts, or by the road improvement district, when he makes payment of his general taxes, State, •county and school. The language of the statute shows that it is directed against the collector, and not against the landowner. The word “fail,” as used in the drainage statute above copied, imports to become deficient or lacking, to leave unperformed, to omit, to neglect. Century Dictionary and Bouvier’s Law Dictionary. The statute in question provides that if any collector shall fail to collect the drainage tax along with the other taxes, he shall be subject to a penalty of $100 for each instance in which he shall collect from an individual the other taxes and omit the drainage tax unless the drainage tax has been enjoined. We think the word “fail” implies in this statute an imposed duty upon the collector to collect the drainage tax at the same time he collects the general taxes, and is aunlicable onlv in case of neglect or omission of the collector to perform such duty. The word “fail”, as used in the statute, covers both the intentional and unintentional nonperformance on the part of the collector. Where the collector has demanded the tax and endeavors to collect it from the landowner at the time he collects from him the general taxes and the landowner should tender his general taxes and contest the payment of the drainage tax and refuse to pay it, it could not be said that the collector failed to act or to perform his duty in the premises so as to subject .himself to the penalty prescribed by the act. In such case he would be guilty of no delinquence, and failure to perform his duty could not be ascribed to him for the reason that he had done all that he was authorized to do in the premises. Under the terms of the statute, the collector could not refuse to accept a voluntary payment of the general taxes because the landowner wished to contest the payment of his improvement taxes and on that account refused to pay the same. The language of the statute is in no sense directed against the landowner, and his n'irht to pay his general taxes without paying the improvement taxes can not he taken away.by any supposed intendment on the part of the Legislature. Such a right is a valuable one to the landowner and could in no event be taken away without direct and express language to that effect on the part of the Legislature.
The road improvement district statute uses the words “omit to advise.” The reasoning we applied above to the use of the word “fail” in the drainage district statute applies with equal force here.
An argument is also made that a statute imposing a duty upon the landowner to pay his drainage and road improvement taxes as a prerequisite to his right to pay his general taxes would be unconstitutional. The views we have expressed render it unnecessary to pass upon this question.
It follows that the judgment must be affirmed.
Smith and Humphreys, JJ., dissenting.