State ex rel. To the Use of Tadlock v. Mooneyham
| Decision Date | 08 June 1923 |
| Citation | 253 S.W. 1098,212 Mo.App. 573 |
| Parties | STATE OF MISSOURI ex rel. to the Use of T. C. TADLOCK, Prosecuting Attorney of Jasper County, Missouri, Respondent, v. ROBERT A. MOONEYHAM and S. S. NICKS, County Treasurer of Jasper County, Missouri, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jasper County.--Hon. Grant Emerson Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
J. D Harris for appellant.
(1) The prosecuting attorney has no authority, on his own initiative as in this case, to maintain this proceeding. It will be noted that all of the cases heretofore cited have invariably been instituted in the name of or at the relation of a taxpayer as such. The county court is a court of record and its judgments, when acting within the scope of its general authority, are entitled to the same weight and verity as those of any other court of record, and cannot be attacked or impeached in a collateral proceeding such as this is. McKenzie v. Donnell, 151 Mo. 431; State ex rel v. Wilson, 216 Mo. 251. And in line with this holding it has been held that where the county board of supervisors being authorized to pass on claims against the county, in doing so acts in a judicial capacity, an injunction will not lie even at the instance of a taxpayer to prevent the allowance of a claim or its payment when allowed. McBride v. Newlin, 61 P. 577, 129 Cal. 36. (2) R. S., art. 260, directing the district attorney to sue officers intrusted with the collection or safe-keeping of public funds, gives such attorneys no authority to sue, against the wishes of the commissioners' court, to recover back money authorized by the court to be paid, out of the county funds, to an attorney retained by the court to represent the county. Looscan v. Harris County, 58 Tex. 511. (3) In the absence of any statute authority, a suit brought by a prosecuting attorney of a State "in behalf of the people of the State," etc., should be dismissed for want of proper parties. Patterson v. Temple, 27 Ark. 202. (4) R. S., par. 1277, authorizing a prosecuting attorney, on being satisfied that public moneys are about to be misapplied, to sue in the name of the State to restrain such misapplication, does not authorize him to sue to recover money illegally drawn from the county treasury. State v. Zumstein, 4 Cir. Ct. Rep. 268. (5) A State's attorney, as such, has no interest in the application of the proceeds of the sales of swamp lands in the counties comprising his circuit, and is not a proper party complainant in a suit in chancery instituted for the purpose of compelling a county to appropriate such proceeds to the reclamation of the lands. Whiteside County Sup'rs v. Burchell, 21 Ill. 68. (6) Under Gen. St., ch. 5, art. 3, sec. 7, providing that the county attorney shall conduct suits in which the county is interested, "when directed by the county court," he cannot appeal on behalf of the county, from an order of the county court establishing a highway which it deems necessary for public use, unless directed by the county court to take such appeal. Montgomery County v. Tipton, 15 S.W. 249. (7) A prosecuting attorney of a county has no authority to bring an action in the name of the county against the county commissioners to restrain them from bonding certain alleged warrant indebtedness against the county. Spokane County v. Bracht, 62 P. 446, 23 Wash. 102. (8) Moreover, the county had a direct legal remedy by appeal if it deemed the allowance of a demand an unjust one. Subdiv. 4, section 2435, R. S. 1919; Boone County v. Corlew, 3 Mo. 12. (9) And where it has such adequate remedy at law, payment of a warrant issued upon a claim duly allowed by the county court will not be restrained even at the suit of a taxpayer. Taylor v. Davey, 75 N.W. 553, 55 Neb. 153.
C. S. Davis, Prosecuting Attorney of Jasper County, for respondent.
(1) No county shall make any contract, unless the same shall be within the scope of its powers, or be expressly authorized by law. Sec. 2164, R. S. 1919. (2) The county court is a tribunal created by the Constitution, but its duties and powers, whether county business, or "other business," must be prescribed by statute. Art. VI, sec. 36, Constitution of Missouri; State ex rel. v. Johnson, 138 Mo.App. 306. (3) County courts are not the general agents of the counties of the State. They are courts of limited jurisdiction, with powers well defined, and limited by the laws of the State. The statutes of the State constitute their warrant of authority, and when they act outside of and beyond their statutory authority, their acts are null and void. Bayliss v. Gibbs, 251 Mo. 492; Sturgeon v. Hampton, 88 Mo. 203; Cape Girardeau, etc., v. Hatton, 102 Mo. 45; Wolcott v. Lawrence Co., 26 Mo. 272; Saline County v. Wilson, 61 Mo. 237; Jefferson County v. Cowan, 54 Mo. 234. (4) Persons dealing with county courts are charged with knowledge, and bound to take notice of the court's limited powers, at the peril of the persons so dealing with them. Thornburg v. School District, 175 Mo. 12; Butler v. Sullivan County, 108 Mo. 630; Sturgeon v. Hampton, 88 Mo. 203. (5) Before an implied power can exist in a county court, there must be an express statutory grant of authority upon which to base the exercise of such implied power, and the implied power is limited strictly to that which is essential to the proper execution of the power expressly granted. Blades v. Hawkins, 240 Mo. 187 (Ann. Cas. 1913-B, 1082). (6) The composition, manner of election, tenure of office and powers and duties of county courts are specifically prescribed by statute. Art. V of ch. 21, R. S. 1919. (7) Equalization of Assessments.--The next arm of the revenue system of Missouri, pertinent to this issue, is the county Board of Equalization. The Board of Equalization, though composed, in part, of the county judges, is not a court, nor a part of the county court, but is a distinct tribunal, created by statute for a specific purpose, and its powers and duties are specified and limited by the statutes authorizing its existence. Art. III, ch. 119, R. S. 1919. (a) The county court has no supervising power over the County Board of Equalization, the functions and powers of said board being special and restricted. Secs. 12820 to 12827, R. S. 1919. (b) Under certain circumstances, the county Board of Equalization may add property to the assessor's books, and when this is done, it is expressly made the duty of the prosecuting attorney to represent the county before such board. Sec. 12825, R. S. 1919; State ex rel. v. Cunningham, 153 Mo. 642. (c) If the provisions of the foregoing statutes are not sufficient to accomplish their purpose, it is for the Legislature, and not for the courts, to authorize some other method of obtaining correct lists of the taxable property of the county. State ex rel. v. Cunningham, 153 Mo. 642, 652. (8) The act of the county court of Jasper county in entering into the attempted contract with appellant, Mooneyham, to act as a tax ferret, was ultra vires, and void, as shown by the following cases, in all of which similar acts were held void, under statutes not differing essentially from the revenue statutes of Missouri. Stevens v. Henry County (Ill.), 4 Ann. Cas. 136, 218 Ill. 468; Granis v. Board of Commissioners (Minn.), 83 N.W. 495; Chase et al. v. Board of Commissioners (Col.), 86 P. 1011, 11 Ann. Cas. 483; Board of Commissioners v. Gunnison (Col. ), 150 P. 324; State ex rel. Miera v. Field (New Mex.), 172 P. 1136; State ex rel. v. Coleman (Kan.), 95 P. 392; Whittinghill v. Board of Commissioners (Okla.), 11 A. L. R. 910, 174 P. 489. (9) The acts of a county court in allowing and ordering the payment of claims presented against the county are done in the ministerial, administrative, and auditing capacity of such courts, and are not judicial acts or functions. Therefore, the doctrine of res adjudicata does not apply. State ex rel. West, Pros. Atty. v. Deemer, 255 Mo. 336; County of Marion v. Phillips, 45 Mo. 75; In re Saline County Subscription, 45 Mo. 52; Phelps County v. Bishop, 46 Mo. 68; Reppy v. Jefferson County, 47 Mo. 66; Owens v. Andrew County, 49 Mo. 376; State to use v. Roberts, 62 Mo. 388; State ex rel. v. Gideon, 158 Mo. 327, 338.
--The county court of Jasper county by an order of record employed Robert A. Mooneyham as a tax ferret to ferret out property concealed or omitted from assessment and furnish lists of same to the proper officers so that such property could be assessed and taxes thereon collected. Mr. Mooneyham performed his part of the contract and as a result of his efforts a large amount of property that had been escaping taxes was added to the assessment in the county and the revenues largely increased thereby. Under the contract between the county court and Mr. Mooneyham, he would have been entitled to $ 20,000 as compensation for his services but he voluntarily relinquished all but $ 6000 and the court issued a warrant to him for that amount. This warrant was presented to the treasurer and protested for want of funds. Afterward the prosecuting attorney on his own initiative and in his official capacity instituted this proceeding to enjoin the payment of the warrant for $ 6000 issued to Mr. Mooneyham. The trial court found for plaintiff and entered judgment perpetually enjoining the payment of the warrant. Defendants appealed.
The appeal in this case was granted to the Supreme Court but that court held it was without jurisdiction and remanded the case to this court.
Some question is raised in this court as to the authority of the prosecuting attorney to prosecute this action on his own initiative and in his official capacity,...
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