Owens v. Andrew Cnty. Court

• Decision Date: 29 February 1872
• Parties: AMOS F. OWENS, Petitioner, v. ANDREW COUNTY COURT, Respondent.
• Court: Missouri Supreme Court

49 Mo. 372

AMOS F. OWENS, Petitioner,

v.ANDREW COUNTY COURT, Respondent.

Supreme Court of Missouri.

February Term, 1872.

Petition for Certiorari.

H. S. Kelley, for petitioner.

The court had no jurisdiction. The statute under which the proceedings were had, so far as it relates to collectors, was superseded and repealed by the act of 1864 (Sess. Acts 1863-4, p. 61). Every affirmative statute repeals by implication a preceding affirmative statute so far as the same is contrary thereto. (Dwar. Stat. 573; Spence v. State, 5 Ind. 41; id. 500; 2 Ind. 440; 6 Ind. 146; 13 How. 429; Smith v. State, 14 Mo. 147; 26 N. Y. 169.) The act of 1863-4 professes to provide a complete system for the collection of the whole revenue, State and county, and it in fact contains a system perfect and complete in all its parts, providing a summary proceeding and a speedy remedy in the Circuit Court against a defaulting or delinquent collector, and, according to the principles of the law, repeals by implication even the statute under which the proceedings were had in this case in the County Court. If we were left in this instance to rely upon a repeal by implication alone, there might be some plausibility in contending for a construction of these statutes in pari materia, but the act of 1863-4 expressly repeals all laws of a general nature that are contrary to or inconsistent with it. This court has undoubtedly, in such cases as this, regarded the authority of the County Court as superseded and repealed by the statute referred to. In the Saline County Subscription case, 45 Mo., on p. 55, the court says: “This court, in County of St. Louis v. Sparks, 11 Mo. 201, seems to treat the action of the County Court against a defaulting collector as judicial, it having been based upon the provisions of article II of an act concerning county treasurers, in the revision of 1835 (p. 151)--a very different statute from the one now in force, and one that made it the duty of the County Court to render judgment against the defaulter.”

After the collector had made his regular settlement at the expiration of his term of office, if, by mistake or otherwise, any money belonging to the county remained in his hands, proceedings could not be had against him summarily and without notice to him in the County Court; and an order entered up demanding of him a sum of money which had not been claimed when the settlement was made, would be invalid. In such case the proper course would be to proceed in the Circuit Court by motion, as provided in section 128 of the revenue law, or by action on his official bond, or to open up the settlement; and in either case he would be entitled to notice and might contest the validity of the demand. The collector was entitled to ten per cent. as his fees and costs for his extra trouble in collecting the delinquent taxes.

Higgins, Strong & Chandler, for respondent.

This proceeding in the County Court was not such a judicial proceeding as will authorize its action to be reviewed on a certiorari. (Saline County Subscription case, 45 Mo. 52.)

But if the court should determine that this case is properly here, and should decide to look into the merits of the settlement of the County Court with the defendant, the respondent contends that, upon the facts shown in the record before it, the settlement was correct and the judgment is right.

Even admitting that section 6, p. 96, Sess. Acts 1863-4, repealed the sections now numbered 19 to 23, p. 228, Gen. Stat. 1865, yet by their incorporation into the General Statutes they were re-enacted. There is no repeal by implication. The two statutes provide different methods of procedure and different penalties, and against different persons. There is in them not only no conflict, but there is hardly a shadow of similarity in their objects.

This court, in 46 Mo. 386, decides that this proceeding was authorized under the law.

BLISS, Judge, delivered the opinion of the court.

Contrary to the usual practice, we allowed this writ without requiring the relator to commence in the Circuit Court. Unless for special reasons full justice cannot be done by the latter course, it will always be required.

The relator was sheriff and collector for Andrew county from 1864 to December 31, 1868. During this period he made his settlements with the County Court regularly and paid over all balances found due into the county treasury. In January, 1869, a newly-constituted County Court, whose judges appear to have held different views from their predecessors upon the principal matters hereinafter to be considered, appointed a committee consisting of one of the judges and its clerk, to examine the accounts of the treasurer and the collector, and the committee reported that the collector had properly accounted for the amounts charged him upon the assessment rolls, but that he had collected of the taxes of 1866 and 1867 the sum of $14,123.77 upon the delinquent lists; that in collecting this sum he either collected or should have collected a ten per cent. penalty amounting to $1,412.37, but that he failed to account for this latter sum and should be charged therewith. The court then directed their clerk to demand this sum of the relator, and the clerk reported that he refused to pay it. Whereupon, at the May term following, an order was entered upon the record reciting the facts and directing the said Owens to pay the sum of $1,412.37 into the county treasury, or, in default, that he should be charged with ten per cent. penalty thereon, and a copy of the order was served upon him. On the fourth day of the August term following, the court entered up judgment by default against him for said sum and penalty, amounting to $1,553.82, to bear thirty per cent. interest; but subsequently, during the said term, the said Owens appeared and moved to set aside the judgment and for leave to resist the claim, for reasons named; but his motion was overruled and he appealed. The appeal was dismissed in the Circuit Court, and the judgment of dismissal was affirmed in this court. (Andrew County v. Owens, 46 Mo. 386.)

The relator now seeks to review the proceedings of the County Court by certiorari, and is met with the objection that the writ will not lie because the proceedings to be reviewed were not judicial. (See Saline County Subscription case, 45 Mo. 52.)

It is held in Marion County v. Phillips, 45 Mo. 75, that the approval and entry upon the records of the County Court of a settlement by the court with the county collector was not a judgment, and that the settlement could be opened and corrected if a mistake had occurred. To that we still adhere, and the defendants in the case at bar acted upon the doctrine of that case when they undertook to open settlements previously recorded and charged the relator with items that should, as they claim, have been included in the settlement. But this proceeding varies radically from the ordinary settlement required by the statute. While the latter is but the presentment of an account by one public agent and its examination by other public agents appointed for the purpose, and the entry of such accounts on the books of the county--a proceeding involving no judgment or action analogous to a judgment--the action of the court now under review is as clearly judicial as any proceeding of a court of record. The court commences with an inquiry into settlements already had, and charges that the collector has not rendered true accounts. It ascertained the balance to be still due the county, and, upon his failing to appear upon the first day of the next term, rendered judgment against him and ordered execution. A prosecutor is the only thing wanting to make it like an ordinary suit; but the law authorizes the County Court to represent the county, and also to act as a court and render judgment in its favor. The rendition of judgment and order of execution being judicial, the action of the court in ascertaining the alleged liability...