Henry v. Manzella , 356 Mo. 305 ( 1947 )

I agree with the result reached in the opinion of Douglas, J. herein, on the ground that the certificate authorized to be filed in the office of the Circuit Clerk by Section 9436 R.S. 1939, as amended Laws 1945, pp. 944-948, is merely the recording of a tax judgment and lien resulting from the findings and orders of the taxing authority. However, I do not agree that it is in any sense a judgment of the Circuit Court, and consider the portions of this statute, which says it is, to be unconstitutional.

I agree that the Legislature may authorize such a tax judgment and lien to be recorded in the office of the Circuit Clerk and may provide for the sheriff to collect it, using the process of execution issued by the Circuit Clerk to do so. I also agree that the requirements of due process are met by the statutory provisions for judicial review of the Commission's findings, and by the right to challenge the fundamental sufficiency of the tax proceedings by motion to quash execution, as permitted by our ruling in State ex rel. Keitel v. Harris 353 Mo. 1043,186 S.W.2d 31. I do not agree that the certificate is, or can be, effective as a judgment of the Circuit Court because it is my view that no judgment of the Circuit Court can be rendered except by that Court in session.

The Commission is a part of the executive branch of the government; and to authorize it by the mere act of filing a certificate (evidencing its tax judgment) to enter a judgment for the Circuit Court to be considered as a final judgment of the Circuit Court was in direct conflict with Article III of the Constitution of 1875 then in force. (Now Art. II, Const. of 1945.) This article provides for three distinct departments of government, and says: "no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others." I cannot conceive of a clearer violation than to attempt to authorize a department of the executive branch to enter a judgment for a court of general jurisdiction by merely filing a certificate with its clerk. I, therefore, think it is clear that the portion of Section 9436(e) (8) is unconstitutional and invalid, which says that the certificate "shall, upon such filing, thereafter be treated inall respects as a final judgment of the circuit court against the delinquent"; and likewise that part of Section 9436(g) which says: "From the time of the filing of such certificate, the amount of the contribution, interest and penalty specified therein shall have the force and effect of a judgment of thecircuit court until the same are satisfied by the Commission or its duly authorized agents."

Nevertheless, with these portions of Section 9436 stricken from it, the remainder is complete and capable of being executed and is valid. [State ex rel. Fire District of Lemay v. Smith,353 Mo. 807, 184 S.W.2d 593.] This would leave in effect substantially the same procedure as that indicated in the California case cited. [People v. Skinner, 18 Cal. 2d 349, 115 P.2d 488.] It is not essential to the plan for collection by execution of the assessment made by the Commission that there be a judgment of the Circuit Court thereon. A tax judgment and lien is sufficient, as pointed out in the principal opinion, so that there remains a complete and workable [463] law without any circuit court judgment. I think we should plainly hold that no administrative tribunal can ever be authorized to make its findings or orders become a court judgment solely by its own act without any action of the court whatever. Leedy, J., and Tipton, C.J., concur.