Casby v. Thompson

• Decision Date: 31 January 1868
• Parties: J. O. CASBY et al., Defendants in Error, v. ALONZO THOMPSON et. al., Plaintiffs in Error.
• Court: Missouri Supreme Court

42 Mo. 133

J. O. CASBY et al., Defendants in Error,

v.ALONZO THOMPSON et. al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1868.

Appeal from First District Court.

R. F. Wingate, Attorney-General, for plaintiffs in error.

I. The settlement and adjustment of the accounts of the collectors of the revenue of the State are, by the statute, vested solely in the State Auditor. (Gen. Stat, 1865, p. 87, §§ 16, 17, 18, 19, and pp. 88, 89, § § 24, 25, 26, 27, and 31.)

II. The Circuit Court had no jurisdiction over the State Auditor in the matter of the settlement of the accounts of the collectors of the State revenue and the issuance of distress warrants for the collection of balances found due by him from collectors. (See sections above cited; also, Const. Mo., art. 5, § 16.)

III. A writ of prohibition can only issue from a superior to an inferior court or tribunal to prohibit the doing of a judicial act over which such inferior court has no jurisdiction, and when such superior court is vested with jurisdiction over the subject of the act. (See Prignitz v. Fisher, 4 Minn. 366; Board of Comm. v. Spitler, 13 Ind. 235; ex parte Braudlacht, 2 Hill, 367; 14 La. An. 504; 36 Barb. S. C. R. 341; 9 S. & M. 623; 5 Pike, 21; 16 Eng. L. & Eq. 462; 7 Wend. 518; 7 Eng. 70.)

IV. The issuance of the distress warrants by the auditor were purely and only ministerial acts; and the acts of the respondent, as sheriff, were only executive or ministerial, and not judicial, and a writ of prohibition will not be granted to prohibit the doing of such ministerial or executive acts. (The People ex rel. Onderdonk v. Supervisors of Queens county et al., 1 Hill, 195.)

V. The law was notice to the collector of the time when his accounts were to be adjusted; nor does the law make it necessary that the collector should be present when the adjustment is had. It only requires the accounts and vouchers of the collector to be exhibited to the auditor; and if the collector should fail, neglect, or refuse, to exhibit his accounts and vouchers, when required by law, the auditor may proceed to ascertain the amount due without the presence of the collector. (Gen. Stat. p. 87, § 16; 36 Barb. S. C. R. 344; 38 Mo. 300.)

VI. The clerk had no authority to grant and issue the writ of prohibition in vacation, and simply upon filing the petition praying for the same in his office, without being ordered or directed so to do by the judge of his court. (1 Mo. 224; 2 Mo. 747. See form of writ of prohibition, No. 655; Tiff. & S., N. Y. Pr., 515; 3 Toml. Law Dict. 241.

Adams, and Draffin, Hutchison & Muir, for defendants in error.

I. The circuit court has jurisdiction by prohibition over all inferior tribunals and officers exercising judicial functions. (Com. Dig. title Prohib. A. 2, F. 1, 11; Bac. Abr. title Prohib. T. 1; Const. Mo. art. 6, §§ 1, 21; Thomas v. Mead, 36 Mo. 232; Howard et al. v. Pierce, 38 Mo. 296, and cases there cited.)

II. When the auditor of public accounts, in pursuance of the statute, makes a settlement between the State of Missouri and a collector of the revenue, he exercises judicial functions, and in effect pronounces a judgment in striking the balance, upon which judgment he is authorized, where it has been properly and legally found and made, to issue executions, called in the statute ““distress warrants.” (2 Bl. Com. book 3, p. 25; art. 3 of “An act to establish and regulate the treasury department,” R. C. 1855, p. 1542; Gen. Stat. 1865, p. 87, §§ 16, 17, 18.)

III. The summary remedy before the auditor against collectors is a statutory proceeding, and can only be exercised by the auditor when the collector makes his appearance before him to make a settlement. (Gen. Stat. 1865, pp. 87, 88, 89, §§ 16, 17, 18, 26, and R. C. 1855, pp. 1542, 1544, 1545, etc.) If the auditor proceeds, without the presence of the collector and without notice, to make up balances and issue distress warrants, the proceedings are “ coram non judice,” and utterly void. (Caldwell v. Lockridge, 9 Mo. 358; Smith v. McCutchen, 38 Mo. 415; Durossett's Adm'r v. Hale, 38 Mo. 348; Janney v. Spedden, 38 Mo. 395; Story's Conf. of Laws, § 539.)

HOLMES, Judge, delivered the opinion of the court.

This appears to have been intended as an application to the Circuit Court of Cooper county for a writ of prohibition to forbid the State Auditor and the sheriff of said county from proceeding to execute certain writs of distress issued by the auditor against Andrew J. Barnes, the former sheriff and ex-officio collector of said county for the years 1862 and 1863, and the sureties in his official bond. The petitioners were the sureties. The petition was filed with the clerk in vacation, and the clerk issued a writ of prohibition.

At the next term of the court, the defendants appeared, and moved the court to dismiss the writ. Their motion being overruled, they filed a demurrer to the petition. The demurrer was sustained and the petition dismissed. The petitioners took a writ of error to the First District Court, where the judgment was reversed and the cause remanded, at the costs of the defendants in error, with directions to the Circuit Court to quash the writ and dismiss the petition. The defendants bring the case here from the District Court by writ of error.

It appears that the collector had failed to exhibit his accounts and vouchers to the auditor on or before the first Monday in January; that the auditor thereupon proceeded to adjust the account, and reported to the treasurer the balance found due; that the collector failed to pay the amount into the treasury within thirty days thereafter, together with two and a half per centum a month on the amount withheld; and that thereupon the auditor issued warrants of distress as required by law. (Gen. Stat. 1865, ch. 10, §§ 16-19, p. 87; R. C. 1855, p. 1542.) These warrants were issued on the 9th of January, 1867.

The petition alleged that the collector had never exhibited his accounts for settlement; that the account had never been audited, adjusted, and settled, in the manner prescribed by law,...