State ex rel. Pickett v. Truman

• Citation: 64 S.W.2d 105,333 Mo. 1018
• Decision Date: 19 October 1933
• Docket Number: 32761
• Parties: State of Missouri at the Relation of James F. Pickett, Relator, v. Harry F. Truman, Presiding Judge of the County Court of Jackson County
• Court: United States State Supreme Court of Missouri

64 S.W.2d 105

333 Mo. 1018

State of Missouri at the Relation of James F. Pickett, Relator, v. Harry F. Truman, Presiding Judge of the County Court of Jackson County

No. 32761

Supreme Court of Missouri

October 19, 1933

Peremptory writ denied.

Foristell Mudd, Blair & Habenicht, Farrington & Curtis and Casey & Wright for relator.

(1) Relator derives whatever power or authority he has from the statutes of this State, and the authority so delegated is an essential governmental function of the first importance hence relator comes clearly within the definitions and rules laid down by this court defining an officer. Secs. 9952 9953, 9945, 9949, 9957, 9956, R. S. 1929; Secs. 9849, 14144, R. S. 1929; Secs. 9883, 11505, 11535, 11651, R. S. 1929; 46 C. J., p. 931, sec. 24; Mechem, Public Officers, p. 9, sec. 9; Throop, Public Officers, p. 2, sec. 2; Throop, Public Officers, p. 19, sec. 19; Knappeen v. Board of Supervisors, 46 Mich. 24; Attorney-General v. Tillinghast, 203 Mass. 543; Chilton v. Pemiscot County, 50 S.W.2d 646; State ex rel. Kerstner v. Sanford, 127 Mo. 371; Burton v. Deleplain, 25 Mo.App. 382; State ex rel. v. Bus, 135 Mo. 332; State ex rel. Zeveley v. Hackman, 254 S.W. 53; Hasting v. Jasper County, 282 S.W. 700; King v. Maries County, 249 S.W. 420; Walker v. Mills, 210 Mo. 689; State ex rel. Rumold v. Gordon, 238 Mo. 182. (2) Relator, being an officer, is required by Article XIV, Section 6, of the Constitution of Missouri to subscribe to an oath of office. Art. XIV, Sec. 6, Const. of Mo.; State ex rel. v. Gray, 91 Mo.App. 444. (3) It became necessary for the county court under Section 9952 to approve relator's appointment. The appointment and approval of relator thus constituted a matter depending before the county court, and it became the duty of respondent to administer the oath of office. Sec. 1720, R. S. 1929; 38 C. J. 701, sec. 283; People on the Relation of Dobbs v. Dean, Clerk of N. Y. Common Pleas, 3 Wend. 438; Huey v. Jones 140 Ala. 479; Blake v. Board of Commissioners, 5 Idaho, 163; Day v. Commissioners, 42 Ky. 198; People ex rel. Young v. Straight, 128 N.Y. 545; Hannon v. Commissioners, 89 N.C. 123. (4) The question as to whether or not the back tax attorneys appointed by the several county collectors in this State are officers is a question of state-wide and general public interest. State ex rel. Nolen v. Nelson, 275 S.W. 928; State ex rel. v. Workmen's Compensation Comm., 8 S.W.2d 899; State ex rel. Mut. Life Ins. Co. v. Mulloy, 52 S.W.2d 471. (5) It has been repeatedly held by this court that it has supervisory control over the inferior courts of this State including the county courts and will issue its writ of mandamus to compel a county judge to perform a ministerial duty where it is clear that he wrongfully refuses to act. Const. Mo., Sec. 3, Art. VI; State ex rel. v. Patterson, 105 S.W. 1048; State ex rel. v. Holtcamp, 181 S.W. 1007; Troll v. Bank, 211 S.W. 545, 278 Mo. 74; State ex rel. v. Hackmann, 203 S.W. 960, 274 Mo. 551.

Fred A. Boxley and Rufus Burrus for respondent.

(1) Relator is not a public officer because: (a) No term is used in the statute creating an office or providing for the appointment of an officer under which relator claims. 46 C. J., p. 930, sec. 22; State ex rel. Cobb v. Thompson, 5 S.W.2d 59; Gracey v. St. Louis, 213 Mo. 393. (b) No acts of sovereignty are delegated to or charged upon the attorney employed by the collector. 46 C. J., p. 928, sec. 20; State v. Bond, 118 S.E. 279; Bun v. The People, 45 Ill. 408; Gracey v. St. Louis, 213 Mo. 394; State v. Board of Commissioners, 115 N.E. 920; State ex rel. v. Gray, 91 Mo.App. 445. (c) No oath of office is prescribed or bond required. 46 C. J., p. 431, sec. 23; State of Missouri ex rel. v. Gray, 91 Mo.App. 444; Sec. 6, Art. XIV, Const. Mo.; State v. Board of Commissioners, 115 N.E. 919. (d) The relationship created is one of contract and the relationship of "Officer" does not arise by contract but is rather an "employment." 46 C. J., p. 930, sec. 22; Shelby v. Alcorn, 36 Miss. 288, 72 Am. Dec. 169; State v. Bond, 118 S.E. 279; Haseltin v. Farmers Mut. Fire Ins. Co., 263 S.W. 810; St. Louis v. Laclede Gas Light Co., 55 S.W. 1008; Knisely v. Leathe, 178 S.W. 458. (e) The statute places no liability for misfeasance or non-feasance upon the delinquent tax attorney employed by the collector. 46 C. J., p. 932, sec. 27; State ex rel. v. Shannon, 133 Mo. 164.

Atwood, J. Gantt, C. J., and Frank and Hays, JJ., concur; Leedy, J., dissents in a separate opinion; Tipton and Ellison, JJ., dissent and concur in separate opinion of Leedy, J.

OPINION

ATWOOD

By an instrument in writing dated October 20, 1931 and duly approved by the County Court of Jackson County, Missouri, the collector of revenue for said county did "employ James F. Pickett of Jackson County, Missouri, as attorney to institute and prosecute all suits for the collection of taxes which are now and shall become delinquent during his present term of office against land or real property located in Range 33, Jackson County, Missouri, said James F. Pickett as such attorney, to receive as compensation for his services ten per cent (10%) of the amount of taxes actually collected and paid into the treasury on suits instituted by him, and an additional sum of Three ($ 3.00) Dollars for each suit instituted for the collection of such tax where publication is not necessary, and Five ($ 5.00) Dollars for each suit where publication is necessary."

More than a year thereafter, to-wit, on the 13th day of January, 1933, Mr. Pickett, conceiving that he was a public officer, filed petition herein for our writ of mandamus to compel the presiding judge of the county court of said county to administer to him the oath of office prescribed by Section 6 of Article XIV of the Constitution of Missouri, at the same time filing stipulation signed by him and counsel for said presiding judge waiving the issuance and service of the alternative writ, fixing time for filing respondent's return and relator's motion for judgment on the pleadings, fixing time for filing abstract of the record and briefs, and waiving oral arguments, relator's obvious purpose being to obtain an early decision from this court holding that he is a public officer. The stipulation was complied with and the case has quite recently come to this writer on reassignment.

In his return respondent admitted that he was the presiding judge of said county court; that by said instrument in writing relator was appointed delinquent tax attorney by virtue of Section 9952, Revised Statutes 1929, as alleged, and that said county court by an order entered of record approved the appointment so made; that an attorney so appointed "is authorized and empowered to institute suits in courts of competent jurisdiction in the county where real estate is situated for the collection of real estate tax and for the enforcement of the State's lien in the collection of said tax;" that "by virtue of Article 14, Section 6, of the Constitution of the State of Missouri, all officers are required to subscribe to an oath of office to support the Constitution of the United States and of this State;" that relator has requested respondent to administer such oath to him and respondent has refused to do so. In his return respondent also denied that relator was an officer within the meaning of the Constitution and laws of this State, and alleged that for that reason he refused to administer the oath of office to relator.

Numerous criteria, such as (1) the giving of a bond for faithful performance of the service required, (2) definite duties imposed by law involving the exercise of some portion of the sovereign power, (3) continuing and permanent nature of the duties enjoined, and (4) right of successor to the powers, duties and emoluments, have been resorted to in determining whether a person is an officer, although no single one is in every case conclusive. [46 C. J., p. 928, sec. 19, n. 1; 53 A. L. R., p. 595.] It is the duty of his office and the nature of the duty that makes one an officer and not the extent of the authority (Mechem on Public Officers, p. 7, sec. 9; Throop on Public Officers, pp. 2, 3, sec. 2), although designation by the law has some significance. [46 C. J., p. 931, sec. 24; State ex rel. v. Gray, 91 Mo.App. 438, 445; State ex rel. Cannon v. May, 106 Mo. 488, 505, 17 S.W. 660; State ex rel. v. Shannon, 133 Mo. 139, 164 33 S.W. 1137; Gracey v. St. Louis, 213 Mo. 384, 393, 394, 111 S.W. 1159.]

In Mechem on Public Officers, pages 1 and 2, section 1, it is said: "A public office is the right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer." We have approved this definition in State ex rel. v. Bus, 135 Mo. 325, 331, 332, 36 S.W. 636; State ex rel. v. Hackmann, 254 S.W. 53, 55, 300 Mo. 59; and Hasting v. Jasper County, 282 S.W. 700, 701, 314 Mo. 144, and it appears to be in harmony with the great weight of authority. [State ex rel. v. Bond (W. Va.), 118 S.E. 276, 278, 279; State ex rel. v. Board of Commissioners (Ohio), 115 N.E. 919, 920; Bunn et al. v. People ex rel., 45 Ill. 397, 409.] The Ohio decision states that it is no longer an open question in that state that to constitute a public office "it is essential that certain independent public duties a part of the sovereignty of the State, should be appointed to it by law." Illustrative of what is meant by "sovereignty of the State," in the same opinion it is said: "If specific statutory and independent duties are...