State ex rel. County of Buchanan v. Fulks
| Decision Date | 30 December 1922 |
| Parties | THE STATE ex rel. COUNTY OF BUCHANAN v. RICHARD D. FULKS and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Appellants |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. L. A. Vories, Judge.
Reversed and remanded (with directions).
James W. McKnight, Mytton & Parkinson and Wm. E. Stringfellow for appellants.
(1) The fees allowed the collector under the provisions of Sec 11511, R.S. 1909, Sec. 12959, R.S. 1919, are in addition to those allowed the collector by the provisions of the Sub-Section 15 of Section 11481, R.S. 1909, Sec. 12927, R.S 1919. State ex rel. v. Hawkins, 169 Mo. 615; Dameron v. Hamilton, 264 Mo. 103; Douglas v Ray, 199 S.W. 568; Hitchcock v. Crawford County, 200 Mo. 170. Sub-section 1 of Sec. 11481, R.S. 1909, says that "the collector shall receive as full compensation for his services in collecting the revenue, except back taxes, the following commissions and no more." (2) The St. Joseph School District is a separate legal entity, and it was the duty of the County Collector to pay funds collected by him for such district directly to the treasurer of said district, and not to Buchanan County. R.S. 1919, sec. 11413. And the St. Joseph School District and not Buchanan County is the proper party to sue therefor. (3) The defendants sought to introduce evidence explanatory of the records and statements filed by Fulks and spread upon the records by the county court and made to the County Treasurer, which evidence was excluded and qualified. State ex rel. West v. Diemer, 255 Mo. 351; State to the use of Carroll County v. Roberts, 62 Mo. 388. (4) Sec. 1890, R.S. 1909 (Sec. 1318, R.S. 1919), is applicable and required this action to be brought within three years. City of St. Joseph v. Wyatt, 274 Mo. 566; State ex rel. v. Harter, 188 Mo. 516; State ex rel. v. Yates, 231 Mo. 276. The defendants having pleaded the three-year Statute of Limitations, and having introduced evidence in support of the same, it devolved upon the plaintiff to bring itself within some exception in order to avoid the statute. Shelby County v. Bragg, 135 Mo. 300; City of St. Joseph v. Wyatt, 274 Mo. 566. It cannot be said that the county court, or the judges thereof, or the county officers, were ignorant of facts which were open to their examination, and which it was their duty to know. Shelby County v. Bragg, 135 Mo. 299. See Secs. 9551, 9509, 9606, 9916, 11478, 11470, R.S. 1909. The action accrued when the collector failed to perform the duty imposed upon him by law and by his official bond, and with actual or constructive knowledge of such failure on the part of the county court. State ex rel. v. Harter, 188 Mo. 516; Loomis v. Mo. Pac. Ry. Co., 65 Mo. 469; Shelby Co. v. Bragg, 135 Mo. 291; City of St. Joseph v. Wyatt, 274 Mo. 566. When the facts raising the question of limitation are not alleged in the complaint the question whether plaintiff's claim is barred by limitation cannot be a question exclusively for the court. Wright v. Cain, 93 N.C. 296; State ex rel. v. Hawkins, 103 Mo.App. 251. Where an instruction given at the instance of a party to the suit is decisive thereof and excludes from the consideration of the jury the questions raised by the evidence of the opposing party it is erroneous. Clark v. Hammerle, 27 Mo. 55; Carder v. Primm, 60 Mo.App. 423; Bank v. Murdock, 67 Mo. 619; Wingfield v. Wabash Ry. Co., 257 Mo. 361; Powell v. Union Pac. Ry. Co., 255 Mo. 420; Crews v. Lackland, 67 Mo. 619. (5) By Secs. 1007-8, R.S. 1909, the prosecuting attorney is authorized to institute and defend all criminal or civil suits by or on behalf of the county, and all civil and criminal actions by or on behalf of the State arising within his jurisdiction. This power thus conferred is exclusive and cannot be superseded or ignored by the county court. State ex rel. Lashley v. Wurdemann, 183 Mo.App. 28; State v. Lamb, 237 Mo. 451; County of St. Louis v. Clay, 4 Mo. 559. When the prosecuting attorney acts ex-officio he exercises a discretion which the State delegated to him, and to him alone, and the State and the county acting through him had power to dismiss the case without leave of the court. State ex rel. v. Lamb, 237 Mo. 437; State ex rel. Lashley v. Wurdemann, 183 Mo.App. 28. By Section 1010, R.S. 1909, it is provided that no court of record shall allow any such cases as are alluded to in Sections 1007-8, to be tried unless the prosecuting attorney shall be present or some one properly qualified to prosecute for him. Cases cited above. County courts are not general agents of the county or State, and have only such authority as is expressly granted them by statute. Butler v. Sullivan County, 108 Mo. 630; Dixon v. Livingston Co., 70 Mo. 239; Morrow v. Pike Co., 189 Mo. 610; State ex rel. Baylis v. Clinton Co., 185 S.W. 1149. By act approved March 11, 1873, Laws 1873, p. 18, the county courts were given the right to employ special counsel to aid or assist the prosecuting attorney, but this act was left out of the Revision of 1879, and was repealed by Sec. 3160, R.S. 1879. Morrow v. Pike Co., 189 Mo. 610. The Attorney General has no super-advising right in the direction and control of suits on behalf of the county, or on behalf of the State, on actions arising within the jurisdiction of the county. Ex parte Howell, 200 S.W. 71; State ex rel. v. Lamb, 237 Mo. 437. Even if the county court had power to employ special counsel in extra cases (which it has not under the law of Missouri), it would be an abuse of that discretion to permit such employment without first consulting with the prosecuting attorney. Buchanan v. Farmer, 184 S.W. 33. The prosecuting attorney having the right to appear and control this action on behalf of the county, and having entered his appearance and dismissed said action, the trial judge was without jurisdiction or authority to continue the same. R.S. 1909, secs. 1979, 1980; Conn. Fire Ins. Co. v. Manning, 177 F. 893; Luse v. Luse, 144 Iowa 393; Hamlin v. Walker, 228 Mo. 611; Mason v. Belt Railroad Co., 226 Mo. 212. The cause of action must be complete and properly brought in the first instance and cannot, by an amended petition, be made so, over the objection of the defendant. Davis v. Clark, 40 Mo.App. 515; Rice v. McClure, 74 Mo.App. 379.
Strop & Mayer and Eugene Silverman for respondent.
(1) The Collector of Revenue of Buchanan County was permitted to retain commissions and fees from all sources to an amount not exceeding $ 9000 per annum. R.S. 1919, sec. 12927; R.S. 1909 sec. 11481. (2) Respondent did not recover any moneys belonging to the St. Joseph School District. Respondent did recover for fees collected by appellant on account of delinquent taxes on real estate. All fees and commissions in excess of $ 9000 belong to the State, county or city as the case may be. No recovery was had for any sum due the State. The city was entitled to no part of the fund sued for. The County of Buchanan and not the St. Joseph School District was entitled to the fees in question. R.S. 1919, sec. 12927; R.S. 1909, sec. 11481. (3) Neither in brief nor printed argument have appellants pointed out what testimony was excluded which should have been received. In fact all testimony offered by appellants was admitted. The court did and necessarily was obligated to determine the effect of the testimony when the peremptory instruction was given. (4) Respondent admits that the three-year statute governs this case and does not rely upon any exception to prevent the running of the statute. There is no evidence that appellant Fulks did prior to March 1, 1915, retain any of the fees sued for excepting the sum of $ 3063.36. As to the balance of the recovery, which was for fees retained March 1, 1915, the three-year statute could have no application. And as to the above sum representing fees for back tax collections, appellant Fulks was not required to make settlement or pay over the same until March 1, 1915, and, therefore, as to that sum also the statute did not begin to run until that date. R.S. 1919, sec. 12927; R.S. 1909, sec. 11481. (5) By Sec. 3781, R.S. 1909, it was the duty of the county court "to enforce the collection of money due the county; to order suit to be brought on the bond of any delinquent," and therefore the court had the implied authority to employ counsel, if necessary, to institute the suit. Wiley v. City of Seattle, 7 Wash. 756, 38 Am. St. 905; Vicksburg Waterworks Co. v. Vicksburg, 33 L. R. A. (N. S.) 815; Oglesby v. Fort Smith District, 119 Ark. 572; Spence v. Clay County, 122 Ark. 161. (a) It is being the duty of the county court to enforce collection of money due the county, the prosecuting attorney, by failure to perform his duty, could not prevent the county court from performing its duty. (b) The suit having been brought on the last day it could be brought to be within the three years, the court properly permitted the newly elected and qualified prosecuting attorney to sign the petition and thus become a party to the action, and this related back to the filing of the petition. Cytron v. Transit Co., 205 Mo. 692; State ex rel. v. Thompson, 81 Mo.App. 549; Lottman v. Barnett, 62 Mo. 159. (c) The Attorney-General, under the facts in this case, had the right to join in the suit, as he did join in it, and this related back to the filing of the petition. People v. Tweed, 133 Abb. Pr. N. S. (N.Y.) 25. (d) In many states, under the facts in this case, any individual taxpayer, having waited until the last day upon which the suit could be filed, and the county court and prosecuting attorney having failed to file the suit in the performance of the duty imposed upon them by statute, could have brought this suit for himself and others similarly situated, and for the benefit of the county. 7...
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