Butler v. Sullivan County

• Decision Date: 14 March 1892
• Parties: BUTLER v. SULLIVAN COUNTY.
• Court: Missouri Supreme Court

18 S.W. 1142

108 Mo. 630

BUTLER v. SULLIVAN COUNTY.

Supreme Court of Missouri, Division No. 1.

March 14, 1892.

COLLECTION OF TAXES — ATTORNEYS' FEES — POWERS OF COUNTY COURT — REPEAL OF STATUTE.

1. Rev. St. 1879, § 6893, provides that, in suits for the collection of taxes, county collectors shall have power, with the approval of the county court, to employ attorneys to aid the prosecuting attorney in conducting such suits; and the court in which suit is brought shall, if plaintiff obtains judgment, allow such attorneys a reasonable fee, to be taxed against the defendant. Held, that a county court has no authority either to employ an attorney to assist in the prosecution of a suit for taxes or to charge the county with liability for his compensation.

2. Act March 9, 1872, as amended by Act March 11, 1873, was revised and amended in 1879, (Rev. St. 1879, art. 2, c. 9,) and section 5 of that act omitted. Held, that section 5 was thereby repealed, as Rev. St. 1879, § 3160, provides that all acts revised and amended and re-enacted in the Revised Statutes should be construed as repealing all prior laws relating to the same subjects.

Appeal from circuit court, Adair county; ANDREW ELLISON, Judge.

Action by John P. Butler against Sullivan county to recover for legal services as special counsel and assistant attorney in the matter of the collection of taxes against the Chicago, Burlington & Kansas City Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

A. W. Mullins, for appellant. J. M. Wattenbarger and D. M. Wilson, for respondent.

BRACE, J.

On the 20th of June, 1887, the plaintiff presented to the county court of Sullivan county, for allowance, the following demand against said county: "Sullivan county, Missouri, in account with Jno. P. Butler, Dr.: To legal services as special counsel and assistant attorney in the matter of the collection of taxes against the Chicago, Burlington & Kansas City Railway Company in the matter of D. H. Crumpacker, Collector, etc., at the relation of the State, vs. said Company, and in the matter of the State ex rel. S. C. Hutchinson, Collector, etc., vs. said Company, as follows: Total amount collected in taxes and interest in virtue of instituted suits and proceedings, $15,743.72. Ten per cent. of this sum is $1,574.37, now due me under the order of the county court dated January 9, 1884, a duly-certified copy of which order is hereto attached, marked `Exhibit A,' this June 20, 1887. JNO. P. BUTLER." The order referred to in the account is as follows: "State of Missouri, county of Sullivan — ss.: November adjourned term, 1883. In the county court of said county, on the 9th day of January, 1884, the following among other, proceedings were had, viz.: John P. Butler appointed as special counsel for Sullivan county. Whereas, suit has been instituted in the circuit court of Sullivan county, Missouri, in the case of the state of Missouri, at the relation and to the use of David H. Crumpacker, collector of the revenue, plaintiff, against the Chicago, Burlington and Kansas City Railroad Company, to enforce the payment of state and county taxes, which said company refuses to pay, claiming exemptions under certain special charter exemptions claimed by them; and whereas, the suit is of far-reaching importance, in that it involves the taxation of said railroad throughout all future time: And therefore be it by the court here ordered that John P. Butler be, and he is hereby, employed as special counsel to prosecute the said cause in the supreme court of this state, and, if necessary, to the supreme court of the United States. And to enable said Butler to properly present said cause, and to employ such counsel as he may deem necessary, said Butler shall receive, as compensation, 10 per cent. on all of the unpaid taxes, and interest due at the time of the final rendition of judgment in favor of said county, whether the same be included in suit or not. And whereas, Putnam county and Linn county are equally interested in obtaining a favorable decision of said cause, and in favor of the right to tax said company as claimed: Wherefore, it is by the court ordered that N. J. Winters, clerk of this court, be, and is hereby, appointed special agent of this county to confer with the courts of said Linn and Putnam counties, and request them to employ said Butler upon the same terms as herein specified on the part of Sullivan county, then and thereby enabling said Butler to properly prosecute the said cause to final decision in the courts of last resort, and enabling him to employ such counsel as he may deem proper to assist him therein." The county court refused to allow the demand, and plaintiff appealed to the circuit court of said county, and the case was taken thence, by change of venue, to Adair county, where, coming on to be heard after all the evidence was in, the plaintiff asked four instructions, all of which the court refused to give, and thereupon, upon its own motion, declared the law of the case as follows: "The only authority to employ plaintiff is found in section 6893, Rev. St. 1879. The authority and provisions to pay assistant counsel, as provided in said section, is exclusive. That under the evidence the plaintiff has received all compensation for his services the law permits" — to which action of the court in so declaring the law the plaintiff at the time excepted, saves his exceptions herein, and assigns the same for error. In view of the law of the case as declared by the court, the plaintiff thereupon took a nonsuit, with leave to move to set the same aside. His motion to set aside the nonsuit, duly filed, being afterwards overruled, the plaintiff perfected his appeal to this court.

It appears from the evidence that Crumpacker was the collector of Sullivan county in 1882, and that afterwards Hutchinson became his successor; that the Chicago, Burlington & Kansas City Railroad Company refused to pay its taxes for the years 1881 and 1882; that the collector employed the plaintiff as special counsel to bring suit for the recovery of such taxes; that on the 3d of February, 1883, the plaintiff instituted such suit; that the same came on for hearing at the November term, 1883, of the circuit court, was tried, and taken under advisement by the court. While the case was in this condition the order of the county court of January 9, 1884, on which plaintiff's demand is grounded, was made by the county court. Afterwards a decision was rendered in the circuit court in favor of the railroad company, and the case taken by writ of error to the supreme court. While the case was pending here, Crumpacker was succeeded by Hutchinson, and, additional taxes for the years 1883, 1884, and 1885 having...