The State ex rel. Gehner v. Thompson

• Decision Date: 11 April 1927
• Docket Number: 26579
• Citation: 293 S.W. 391,316 Mo. 1169
• Parties: The State ex rel. Fred Gehner v. L. D. Thompson, State Auditor
• Court: Missouri Supreme Court

293 S.W. 391

316 Mo. 1169

The State ex rel. Fred Gehner v. L. D. Thompson, State Auditor

No. 26579

Supreme Court of Missouri

April 11, 1927

Peremptory writ denied.

Anderson Gilbert & Wolfort for relator.

(1) The compensation of assessors for work on the income tax is paid in fees for the items of work actually done by the assessor then in office. Secs. 13124, 12816, 12997, R. S. 1919. (2) Fees are creatures of statute and are to be paid as provided by the statute. State ex rel. v. Walker, 97 Mo. 162; State v. Wofford, 116 Mo. 220. The above statute expressly provides the fees for the work on the income tax based upon the work actually done. (3) Where an officer obtains fees not allowable to him, he and his bondsman are liable to refund. State ex rel. v. Adams, 172 Mo. 1. (4) The payment to the wrong party does not deprive the right party of his fees. And if the Auditor refuses to audit a proper bill mandamus will issue. State ex rel. v Walker, 97 Mo. 162; State ex rel. v. Wilder, 196 Mo. 429. (5) Mr. Gehner is not bound by Mr. Buder's certificate. Certificates can be contradicted by oral testimony. The Auditor is not concluded by certificates, nor is his allowance or disallowance conclusive. State ex rel. v. Wilder, 196 Mo. 428; Hallowell v. Page, 24 Mo. 593; Butler v. Barr, 18 Mo. 361. (6) There is no suggestion that Gehner was acting as Buder's agent. An official who is functus officio, cannot appoint his successor as his agent, to perform the duties of the successor. The defense pleaded is that Buder did the work and respondent relied upon the certificates he furnished. Having adopted that theory respondent should not now be permitted to change and pick technical flaws. Respondent pleaded that Buder did the work, and then failed to put Buder on the witness stand. (7) Respondent's return admitted the demand as pleaded in the petition, but seeks to change the figures. Apparently the bill on which demand was made, before this suit was filed, was misplaced. No attack was made upon the alternative writ or reply to the return, either by way of demurrer, motion to strike or in any other manner. Respondent's theory was that Buder did the work and furnished certificates, and therefore, relator cannot recover. Parties are bound by their theories. (8) This suit is not an attempt to litigate between rival claimants as suggested by respondent. If Buder has collected more fees than he is entitled to he and his surety have that question to settle with the State.

North T. Gentry, Attorney-General, and George W. Crowder, Assistant Attorney-General, for respondent.

(1) In the extraordinary remedy of mandamus it is elementary (a) that relator must establish a clear legal right to the relief he seeks through the writ, and (b) that the writ is never granted in doubtful cases. Adair Drainage Dist. v. Railroad Co., 280 Mo. 244; State ex rel. v. Thomas, 245 Mo. 65; State ex rel. v. Mo. Pac. Ry. Co., 280 Mo. 456; High on Extraordinary Legal Remedies, p. 17, sec. 12. (2) The burden rests upon one seeking relief by mandamus to show himself to have a clear legal right to the performance of the particular act which he seeks to compel. He must show that performance is an imperative duty, and the writ never lies where, as here, it appears that there is a question to adjudicate. State ex rel. Dolman v. Dickey, 280 Mo. 536; State ex rel. v. Stone, 269 Mo. 334; State ex rel. v. Becker, 291 Mo. 409; State ex rel. Buder v. Hackmann, 305 Mo. 342; State ex rel. v. Holman, 305 Mo. 195; State ex rel. v. Kansas City, 213 Mo.App. 349; State ex rel. v. Edwards, 206 Mo.App. 496; State ex rel. v. Bank, 174 Mo.App. 589; State ex rel. v. Seibert, 130 Mo. 222; Hunter v. Chandler, 45 Mo. 452; State ex rel. v. Clark, 52 Mo. 508. (3) The State Auditor, as the general accountant of the State, is empowered in all cases, not otherwise expressly provided for by law, to audit and settle all claims against the State, with power to reject any claim not deemed payable. In this capacity his acts involve the exercise of discretion, and are judicial in character. Secs. 13301, 13324, R. S. 1919; Goodrich v. Guthrie, 17 How. 284; Brashear v. Mason, 6 How. 92; State ex rel. v. Seibert, 130 Mo. 202; State ex rel. v. Oliver, 116 Mo. 188; State ex rel. Nolan v. Hackmann, 276 Mo. 173; State ex rel. Heller v. Thornhill, 174 Mo.App. 469; State ex rel. v. Thompson, 41 Mo. 14; Durant v. Whedon, 201 A.D. 196; People ex rel. v. Albany Co., 12 Johnson, 414; Runkle v. Commonwealth, 97 Pa. 328. Where the State Auditor, in good faith, examines and passes on a demand against the State, under his statutory powers as to the State's accountant, and pays the account to one who shows himself to be entitled to payment, and a conflicting claim is afterwards presented by another for the same, or a part of the same services, the Auditor is justified in refusing payment of the subsequent claim, and in these circumstances mandamus will not lie, as it would only amount to a litigation or an adjudication of the dispute between the claimants. Osborn v. Clark, 25 P. 797; State ex rel. v. Police Jury, 97 So. 587; State ex rel. v. Oliver, 116 Mo. 188; State ex rel. v. Gentry, 112 Mo.App. 589; People ex rel. Grady v. Palmer, 44 N.Y.S. 578.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

This is an original proceeding in mandamus brought in this court by the relator, Fred Gehner, who is the incumbent of the office of Assessor of the City of St. Louis, to compel the respondent, State Auditor, to audit and approve for payment relator's claim against the State for statutory fees claimed to have been earned by relator in the making of the state income tax book in the city of St. Louis for the year 1925. Relator was appointed to the office of Assessor of the City of St. Louis on April 24, 1925, and assumed the duties of said office on the morning of April 25, 1925. Relator succeeded, in said office, one William F. Buder, whose tenure of office expired at the close of the day of April 24, 1925. Relator contends that he performed the services upon which he bases his claim herein from and after April 25, 1925, and that no part of such services was performed by his predecessor in office, said William F. Buder. Relator's itemized account of the statutory fees to which he claims to be entitled to payment by the State is as follows:

Charges for entering 49,207 returns upon the

assessment list at 3 cents each

$ 1,476.21

$ 1,476.21

To extending 49,207 returns at 3 cents each

1,476.21

To making tax book for Collector at ten cents

per 100 words and figures (153,504)

153.50

Fifty cents per $ 100,000 valuation

($ 108,072,349)

540.36

1/10 of 1% of total tax ($ 562,952.03)

562.95

Filing and safekeeping 49,207 returns at 1/2

cent each

246.03

2,979.05

Total amount claimed to be due relator from

the State of Missouri

$ 4,455.26

This court, upon the filing of relator's petition herein, issued an alternative writ, to which respondent filed a return, in which he admits that he has refused to audit and approve the bill or account presented to him by relator, but denies that such refusal was wrongful or unlawful. The return denies that the State is indebted to relator in any amount; denies that relator performed any of the services alleged by relator to have been performed by him; and alleges that William F. Buder, the predecessor in office of relator, had presented to respondent an itemized bill or account, in the aggregate sum of $ 25,278.35, for the making and completion of the assessment of income taxes in the city of St. Louis for the year 1925, the truth and correctness of which account was duly certified by said Buder, and that such statement of account was accompanied by an aggregate abstract of the income tax assessments in the city of St. Louis, as set out in the income tax book of said city, for the period of January 1, 1925, to April 24, 1925, together with the original receipt of Edmond Koeln, Collector of the City of St. Louis, dated April 24, 1925, reciting that said collector had received of said William F. Buder, Assessor and Acting County Clerk of the City of St. Louis, the income tax book for said city covering the period of January 1, 1925, to April 24, 1925, and also accompanied by the original certificate of Louis Nolte, Comptroller of the City of St. Louis, certifying to the truth and correctness of said aggregate abstract as having been completed by said Buder within the period of January 1, 1925, to April 24, 1925, as appeared by the records and files in the office of the said comptroller; that, upon the certification and filing of such matters and documents with respondent, showing the assessment to have been completed by said Buder, and showing the amount due thereon, respondent, acting in good faith and within his lawful right, and acting in reliance upon said certificates and verified account, paid to said Buder the full amount of fees that the State was obligated to pay for the income tax assessment in the city of St. Louis for the year 1925. Attached to the return, as exhibits thereto, are the verified statement of account filed by Buder with respondent, the aggregate abstract of income tax assessments, and the receipt and the certificate of the collector and comptroller, respectively, of the city of St. Louis, referred to and pleaded in the return.

Relator filed reply to the return, denying generally and specifically the allegations thereof, and further alleging that "whatever statement and account was filed by said William F. Buder with respondent and whatever aggregate abstract of the income tax in the city of St. Louis Missouri, was filed with respondent for the period of January 1, 1925, to April 24, 1925, inclusive, is erroneous if same included the work done by this relator as above...