State v. Truman, 32761.

• Decision Date: 23 August 1933
• Docket Number: No. 32761.,32761.
• Court: Missouri Supreme Court
• Parties: STATE ex rel. PICKETT v. TRUMAN, Judge.

64 S.W.2d 105

STATE ex rel. PICKETT v. TRUMAN, Judge.

No. 32761.

Supreme Court of Missouri, in Banc.

August 23, 1933.

Motion for Rehearing Overruled October 19, 1933.

Mandamus proceeding by the State of Missouri, at the relation of James F. Pickett, against Harry F. Truman, Presiding Judge of the County Court of Jackson County, Missouri. Relator later filed a motion to dismiss the proceeding.

Motion to dismiss overruled, and peremptory writ denied.

Foristel, Mudd, Blair & Habenicht, of St. Louis, Farrington & Curtis, of Springfield, and Casey & Wright, of Kansas City, for relator.

Fred A. Boxley, of Kansas City, and Rufus Burrus, of Independence, for respondent.

ATWOOD, Judge.

By an instrument in writing dated October 20, 1931, and duly approved by the county court of Jackson county, Mo., the collector of revenue for said county did "employ James F. Pickett of Jackson County, Missouri, as attorney to institute and prosecute all suits for the collection of taxes which are now and shall become delinquent during his present term of office against land or real property located in Range 33, Jackson County, Missouri, said James F. Pickett as such attorney, to receive as compensation for his services 10 per cent (10%) of the amount of taxes actually collected and paid into the treasury on suits instituted by him, and an additional sum of Three ($3.00) Dollars for each suit instituted for the collection of such tax where publication is not necessary, and Five ($5.00) Dollars for each suit where publication is necessary."

More than a year thereafter, to wit, on the 13th day of January, 1933, Mr. Pickett, conceiving that he was a public officer, filed petition herein for our writ of mandamus to compel the presiding judge of the county court of said county to administer to him the oath of office prescribed by section 6 of article 14 of the Constitution of Missouri, at the same time filing stipulation signed by him and counsel for said presiding judge waiving the issuance and service of the alternative writ, fixing time for filing respondent's return and relator's motion for judgment on the pleadings, fixing time for filing abstract of the record and briefs, and waiving oral arguments; relator's obvious purpose being to obtain an early decision from this court holding that he is a public officer. The stipulation was complied with and the case has quite recently come to this writer on reassignment.

In his return respondent admitted that he was the presiding judge of said county court; that by said instrument in writing relator was appointed delinquent tax attorney by virtue of section 9952, R. S. 1929 (Mo. St. Ann. § 9952, p. 7993), as alleged, and that said county court by an order entered of record approved the appointment so made; that an attorney so appointed "is authorized and empowered to institute suits in courts of competent jurisdiction in the county where real estate is situated for the collection of real estate tax and for the enforcement of the State's lien in the collection of said tax"; that "by virtue of article 14, section 6, of the Constitution of the State of Missouri, all officers are required to subscribe to an oath of office to support the Constitution of the United States and of this State"; that relator has requested respondent to administer such oath to him and respondent has refused to do so. In his return respondent also denied that relator was an officer within the meaning of the Constitution and laws of this state, and alleged that for that reason he refused to administer the oath of office to relator.

Numerous criteria, such as (1) the giving of a bond for faithful performance of the service required, (2) definite duties imposed by law involving the exercise of some portion of the sovereign power, (3) continuing and permanent nature of the duties enjoined, and (4) right of successor to the powers, duties, and emoluments, have been resorted to in determining whether a person is an officer, although no single one is in every case conclusive. 46 C. J. p. 928, § 19, n. 1; 53 A. L. R. p. 595. It is the duty of his office and the nature of the duty that makes one an officer and not the extent of the authority (Mechem on Public Officers, p. 7, § 9; Throop on Public Officers, pp. 2, 3, § 2), although designation by law has some significance. 46 C. J. p. 931, § 24; State ex rel. v. Gray, 91 Mo. App. 438, 445; State ex rel. Cannon v. May, 106 Mo. 488, 505, 17 S. W. 660; State ex rel. v. Shannon, 133 Mo. 139, 164, 33 S. W. 1137; Gracey v. St. Louis, 213 Mo. 384, 393, 394, 111 S. W. 1159.

In Mechem on Public Officers, pp. 1 and 2, § 1, it is said: "A public office is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer." We have approved this definition in State ex rel. Walker v. Bus, 135 Mo. 325, 331, 332, 36 S. W. 636, 33 L. R. A. 616, State ex rel. v. Hackmann, 300 Mo. 59, 254 S. W. 53, 55, and Hasting v. Jasper County, 314 Mo. 144, 282 S. W. 700, 701; and it appears to be in harmony with the great weight of authority. State ex rel. Key v. Bond, 94 W. Va. 255, 118 S. E. 276, 278, 279; State ex rel. Landis v. Board of Commissioners, 95 Ohio St. 157, 115 N. E. 919, 920; Bunn et al. v. People ex rel., 45 Ill. 397, 409. The Ohio decision states that it is no longer an open question in that state that to constitute a public office "it is essential that certain independent public duties, a part of the sovereignty of the state, should be appointed to it by law." Illustrative of what is meant by "sovereignty of the state," in the same opinion it is said: "If specific statutory and independent duties are imposed upon an appointee in relation to the exercise of the police powers of the state, if the appointee is invested with independent power in the disposition of public property or with power to incur financial obligations upon the part of the county or state, if he is empowered to act in those multitudinous cases involving business or political dealings between individuals and the public, wherein the latter must necessarily act through an official agency, then such functions are a part of the sovereignty of the state."

With the foregoing principles in mind, we now turn to certain statutes cited and relied upon by relator. Pertinent provisions of section 9952, R. S. 1929 (Mo. St. Ann. § 9952, p. 7993), providing for the employment or appointment of attorneys by collectors in their enforcement of the payment of taxes appearing in the back tax books against real estate, are as follows: "If, on the first day of January of any year, any of said lands or town lots contained in said `back tax book' remain unredeemed, it shall be the duty of the collector to proceed to enforce the payment of the taxes charged against such tract or lot, by suit in a court of competent jurisdiction of the county where the real estate is situated, which said court shall have jurisdiction, without regard to the amount sued on, to enforce the lien of the state or such cities; and for the purpose of collecting such tax and prosecuting suits for taxes under this article, the collector shall have power, with the approval of the county court, or in such cities, the mayor thereof, to employ such attorneys as he may deem necessary, who shall receive as fees such sum, not to exceed ten per cent of the amount of taxes actually collected and paid into the treasury, and an additional sum not to exceed $3.00 for each suit instituted for the collection of such taxes, where publication is not necessary, and not to exceed $5.00 for each suit where publication is necessary, as may be agreed upon in writing, and approved by the county court, or in such cities, the mayor thereof, before such services are rendered, which sum shall be taxed as costs in the suit and collected as other costs, and no such attorney shall receive any fee or compensation for such services except as in this section provided," etc. (In the latter part of this section is a proviso relating to cities of thirty thousand or more inhabitants wherein such attorney is referred to as "appointed" by the collector, while earlier in the section the word "employ" was used. We think no distinction in meaning was intended. Both terms convey the idea of selecting and intrusting with a duty. See Gracey v. St. Louis, 213 Mo. 384, 394, 395, 111 S. W. 1159.)

Sections 9945 and 9949, R. S. 1929 (Mo. St. Ann. §§ 9945, 9949, pp. 7988, 7991), cited by relator, provide when delinquent taxes against real estate shall be placed on the "back tax book" and how such real estate may be redeemed. Sections 9953, 9957 and 9956, R. S. 1929 (Mo. St. Ann. §§ 9953, 9957, 9956, pp. 7995, 8002, 8000), cited by relator, provide how suits commenced by collectors to enforce the payment of such taxes shall be prosecuted, when triable, and form of judgment rendered and execution issued thereon if against defendants.

It will be observed that in none of the above statutes is such attorney denominated an officer or his position an office, as was the case in Hasting v. Jasper County, 314 Mo. 144, 282 S. W. 700, 701, cited and relied on by relator. Furthermore, in the Hasting Case, which was an action by a probation officer for his salary, it appears that the statute authorizing his appointment (section 2599, R. S. 1919 [Mo. St. Ann. § 14144, p. 861]) vested in him "all the power and authority of sheriffs to make arrests and perform other duties incident to their offices," and the authority and duty so conferred upon him by law clearly vested in him "some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." Also, sections 9883, 11505, 11535, and 11651, R. S. 1929...