King v. Maries County

• Decision Date: 05 March 1923
• Docket Number: No. 23281.,23281.
• Citation: 249 S.W. 418,297 Mo. 488
• Parties: KING v. MARIES COUNTY.
• Court: Missouri Supreme Court

249 S.W. 418

297 Mo. 488

KING v. MARIES COUNTY.

No. 23281.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Appeal from Circuit point, Osage County; R. A. Breuer, Judge.

Action by Everett M. King against Maries County and others. Judgment against defendant named only, and it appeals. Reversed.

Homer Rinehart, Pros. Atty., of Vienna (Ira H. Lohman, of Jefferson City, Vosholl & Monroe, of Linn, and John W. Terrill, of Vienna, of counsel), for appellant.

F. H. Farris, of Rolla, and Gave & Davidson, of Linn, for respondent.

LINDSAY, C.

Respondent brought suit in the circuit court of Maries county, against that county, and against the individuals composing the county court, and the collector of revenue of the county, to recover $654 alleged to be due respondent, the owner of a set of abstract books, for making and delivering a list of all names of owners and true description of lands, embraced in 187 separate tax bills, at the rate of $3.50 for each tax bill. A change of venue was taken to Osage county, where respondent dismissed as to the individual defendants, and a trial resulted in a verdict and judgment against Maries county for the amount asked. The county has duly appealed therefrom. The petition after stating the official relation of the defendants, and that the plaintiff was engaged in the making of abstracts of title to land in Maries county, alleged that the judges of the county court acting for Manes county, by an order duly made and entered of record at the regular May term, 1922, employed the plaintiff to run down the title and furnish a list of all names of owners, and a true description of all lands embraced in back tax bills issued by the collector, and agreed to pay plaintiff as compensation therefor the sum of $3.50 for each tax bill; that the lists and descriptions so to be furnished were to be used in the preparation of back tax bills and in bringing numerous suits for back taxes against the record owners of lands in Maries county, pursuant to the purpose of the county court and county collector to bring such suits for the collection of public moneys due.

Plaintiff alleged that in compliance with the order he had made and delivered the list of names and true description for 187 separate tax bills, and had performed all the labor required of him under his employment, whereby the county had become indebted to him in the sum mentioned. The county answering, without making general denial of the allegations in the petition, denied that it was indebted to plaintiff in any sum; denied that the county court had the right to employ plaintiff to perform the service above described, or to agree to pay him therefor the sum of $3.50 for each tax bill, or any other sum. The county further answering set forth the order of the county court of May 23d, 1919, which is as follows:

"Ordered by the court that L. B. Hutchinson, Sr., be appointed as tax attorney for the ensuing year.

"Ordered by the court that E. M. King be employed to run down the title and furnish a list of all names of owners and a true description of all lands embraced in back tax bills issued by the collector of Mules county and that he receive as compensation $3.50 for each tax bill.

"Ordered by the court that in all tax suits brought in this county for the ensuing year for back taxes there be assessed and collected and charged as cost the sum of $3.50 for each back tax bill; the same being the expenses incurred by the county in getting a true description of the land and correct name of the defendant and the sheriff, collector and circuit clerk are instructed to collect said above amount on all suits for back taxes and charge as cost."

Continuing, the county averred that its county court had no power or authority to employ said L. B. Hutchinson, Sr., as tax attorney for the ensuing year or for any length of time, or to employ plaintiff for the purpose mentioned, or to order that plaintiff should receive the compensation specified, or any other sum, and the county also denied that by said order the court was authorized to instruct the sheriff, collector, and circuit clerk to collect said amount of $3.50 in all suits for back taxes and charge the same as cost.

Upon the trial defendant objected to the introduction of any evidence on the ground that the petition did not state a cause of action against Marks county, and mare particularly that it was a suit upon account arising out of a contract whereof the items were not set out, and that the contract was not in writing signed by the parties as required by the statute governing contracts made by a county. These objections were overruled by the court.

The evidence showed that the plaintiff made abstracts or lists and descriptions to the number sued for, and delivered them in part to the tax attorney and in part to the collector; and that the tax attorney brought 64 suits during the year 1919. For reasons not clear from the testimony, and not important to consider here, the officials did not collect the item of cost for the list from defendant taxpayers. The defendant showed that the collector did not in writing appoint the tax attorney, but the person named in the order of the county court was in fact selected by the collector and acted in that capacity in the year 1919.

The plaintiff, as has been indicated above, alleged that the county court "by its order duly of record, employed the plaintiff." It was not alleged that a contract, eo nomine, was entered into between plaintiff and defendant.

The defendant pleaded the order, setting it forth in full, while denying the authority of the court to make it. The plaintiff put in evidence on the trial a certified copy of the order. The suit was thus founded upon the orders and tried upon the theory that the order was the sole evidence in writing of the contract. Thereby was excluded any presumption of there being a contract in writing signed by the parties. The primary question in this case is whether the county court had power to hire plaintiff to render the service and to lawfully charge Maries county with an obligation to pay for it.

It has been held uniformly that county courts are not the general agents of the counties or of the state. Their powers are limited and defined by law. They have only such authority as is expressly granted them by statute. Butler v. Sullivan County, 108 Mo. 630, 18 S. W. 1142; Sturgeon v. Hampton, 88 Mo. 203; Bayless v. Gibbs, 251 Mo. 492, 158 S. W. 590; Steines v. Franklin County, 48 Mo. 167, 8 Am. Rep. 87. This is qualified by the rule that the express grant of power carries with it such implied powers as are necessary to carry out or make effectual the purposes...