In re Letcher

• Decision Date: 04 December 1916
• Docket Number: No. 18952.,18952.
• Citation: 269 Mo. 140,190 S.W. 19
• Parties: In re LETCHER.
• Court: Missouri Supreme Court

190 S.W. 19

269 Mo. 140

In re LETCHER.

No. 18952.

Supreme Court of Missouri. In Banc.

December 4, 1916.

Original proceedings in contempt against Isaac A. Letcher. Citation quashed, and contemner discharged.

M. E. Rhodes and S. G. Nipper, both of Potosi, for petitioner. Edward T. Eversole, of Potosi, and Ernest A. Green, of St. Louis, for respondent.

FARIS, J.

This is an original proceeding bottomed upon a citation for contempt, and now here at issue upon a motion for judgment upon the pleadings. For an understanding of the questions which we find it necessary to discuss, we must needs go back to the foundations of the case.

At a time prior to the 17th day of May, 1915 (on which day an affidavit as provided by section 10409, R. S. 1909, was in our April term, 1915, lodged with our Chief Justice), one Isaac A. Letcher was collector of the revenue of Washington county. His term expired on the 4th day of March, 1915, and his successor, one George Carr, thereupon entered duly upon the discharge of the duties of said office. Thereafter a controversy arose between Carr, the incumbent, and Letcher, the outgoing collector, as to the possession of a certain book, called in the record before us an "Abstract of Collections," and of certain duplicate current tax receipts for the year 1914; Carr contending that said book and receipts were adjuncts of the office of collector, while Letcher contended that they were not such books and papers as were by law required to be kept, but that they were his own private property, kept by him for his own convenience. Carr thereupon, and on the said 17th day of May, filed in this court in the April term, 1915, the following affidavit (caption and merely formal parts omitted):

"George Carr, being duly sworn, upon his oath states that on the 3d day of November, 1914, he was duly elected collector of the revenue within and for Washington County, Mo., and that he was commissioned, sworn, qualified and gave bond as such collector and entered upon the duties of said office on the 4th day of March, 1915; that Isaac A. Letcher was the duly elected, qualified and acting collector of the revenue of said Washington county, Mo., from the first Monday in March, 1911, to the first Monday in March, 1915, and the said Isaac A. Letcher has retained and now has in his possession certain books, records and papers belonging to said office of collector of the revenue of said county, to wit, one book called and named `Abstract of Collections' for the year 1914, and all the duplicate current tax receipts for the year 1914, and this affiant is entitled to the possession of the same; that the said books belong to Washington county, Mo., and were paid for by Washington county aforesaid, and appertain to the office of the collector of the revenue of and for said county; that the said Isaac A. Letcher has failed and refused to deliver said books, records and papers to the affiant as he is required to do under the provisions of article 1, c. 101, of the Revised Statutes of Missouri of 1909.

"Wherefore, affiant prays the Honorable Archelaus M. Woodson, judge of the Supreme Court of Missouri, to issue his warrant to the marshal of the Supreme Court, requiring him to deliver to the affiant the books, records and papers named in the affidavit."

On the 19th day of May, 1915, there was issued by our Chief Justice, under the provisions of section 10409, R. S. 1909, the same being one of the sections of article 1 of chapter 101, R. S. 1909, the following order, omitting signature and merely formal parts:

"The State of Missouri, to the Marshal of the Supreme Court of Missouri, Greeting: Information having this day been given to Archelaus M. Woodson, Chief Justice of our Supreme Court, by the affidavit of George Carr, filed with said justice, that the said George Carr, on the 3d day of November, 1914, was duly elected collector of the revenue within and for Washington county, Mo., and that he was commissioned, sworn, qualified and gave bond as such collector and entered upon the duties of said office on the 4th day of March, 1915; that Isaac A. Letcher was the duly elected, qualified and acting collector of the revenue of said Washington county, Mo., from the first Monday in March, 1911, to the first Monday in March, 1915, and the said Isaac A. Letcher has retained and now has in his possession certain books, records and papers belonging to said office of collector of the revenue of said county to wit, one book called and named `Abstract of Collections' for the year 1914, and all the duplicate current tax receipts for the year 1914, and that affiant is entitled to the possession of the same; that the said books belong to Washington county, Mo., and were paid for by Washington county aforesaid, and appertain to the office of the collector of the revenue of and for said county; that the said Isaac A. Letcher has failed and refused to deliver said books, records and papers to the affiant as he is required to do under the provisions of article 1, c. 101, of the Revised Statutes of Missouri of 1909.

"These are, therefore, to command you to search for and seize the books, records and papers hereinbefore mentioned appertaining to the collector's office of said Washington county, and deliver same into the hands of George Carr, collector of said county, and that if said books, records and papers be not delivered to you upon demand, you may break open any doors, trunks or places in which said books, records and papers may be, or in which you may suspect them to be, and if any person shall resist you in the execution of this warrant you shall arrest him and carry him before some justice of the peace to be dealt with for obstructing the execution of process, and that if said Isaac A. Letcher shall conceal or destroy said books, records and papers so as to prevent you from seizing same, then you shall report that fact to the undersigned, so that the said Isaac A. Letcher may be dealt with as for a contempt; and that you make your return of your proceedings hereunder."

This order (designated in the applicable statute as a "warrant") having been duly served upon said Letcher, our marshal made his return, showing such service, and further showing that Letcher refused to produce or deliver the said book and receipts, and refused to make known their whereabouts, and that our said officer after making diligent search therefor was unable to find them.

Thereupon, and on the suggestion of Carr, we issued our citation to Letcher to appear before us on the 31st day of May, 1915, then and there to show cause, if any he had, why he should not be punished by us for contempt. Letcher (called hereinafter contemner, for convenience and brevity only) duly appeared on the day to which he was cited and filed in this court: First, a petition under the provisions of sections 10412 and 10413, praying that a citation issue to said George Carr, and to all other persons interested, to appear before this court to the end that the matter in controversy, to wit, the matter of the right of possession of said book and duplicate tax receipts, might be determined by us "according to right and justice"; second, a return, wherein in substance he denied that the book and tax receipts in controversy were records of the office of collector of the revenue of Washington county, denied that he was withholding any books or records pertaining to said office, but averred the fact to be that the book and tax receipts in question were the private personal property of contemner, kept by him for his own personal and private convenience. Contemner further averred that there had been presented to Hon. E. M. Deering, as judge of the Twenty-First judicial circuit, an affidavit under said section 10409, having for its object the identical relief prayed for by said Carr, by his affidavit aforesaid, lodged in the instant case with our Chief Justice and on which our initial order herein was bottomed; that upon a full hearing Judge Deering refused to issue his warrant for said book and papers, finding that the said records were the property of contemner; that a suit in replevin, brought by Washington county for the possession of said records, was pending undisposed of; that section 10409 had no application, as contemner was advised, to the facts presented in this controversy, but, if this court...