The State ex rel. Barker v. Scott

• Decision Date: 20 February 1917
• Citation: 192 S.W. 90,270 Mo. 146
• Parties: THE STATE ex rel. JOHN T. BARKER, Attorney-General, v. JAMES P. SCOTT, Appellant
• Court: Missouri Supreme Court

192 S.W. 90

270 Mo. 146

THE STATE ex rel. JOHN T. BARKER, Attorney-General, v. JAMES P. SCOTT, Appellant

Supreme Court of Missouri, First Division

February 20, 1917

Appeal from Clark Circuit Court. -- Hon. N. M. Pettingill, Judge.

Reversed and remanded.

Cooley & Murrell, J. A. Whiteside and B. L. Gridley for appellant.

(1) The statutory provisions pleaded and relied on by plaintiff make no provision as to when the work for which these fees were paid shall be completed, nor does any other statute; and even if there was a statutory time limit, and the work had not been completed within such time, neither the statute pleaded not any other, fixes as a penalty for such failure the forfeiture of the fees, nor authorizes the State to recover the fees after they have been paid; especially when, as here the work was done and completed before suit brought. The burden is on the State to show a clear right of recovery. (2) The extension of the taxes for which these fees were paid to the clerk is not necessary to the validity of the assessment nor a prerequisite to the collection thereof. State ex rel. v. Wilson, 216 Mo. 286; State ex rel. v Lounsberry, 125 Mo. 163. (3) The statute pleaded, Sec. 11397, R. S. 1909, provides that the clerk shall do this work. Sec. 11549 provides that he shall be paid certain fees for doing it. Neither section says when he shall do it. No statute provides that for any delay in doing it he shall forfeit the fees. If not done until after the "tax book" (the book that goes to the collector) has been made and delivered, it still remains the clerk's duty to extend these taxes on the assessor's book, which remains in his office. When done, he would unquestionably be entitled to the fees. Therefore, even if the State would have had a right to recover on the theory that the fees had not been earned when they were paid, if suit had been brought before the work had been done, it could have no such right to recover in this case, because when suit was filed, the work was done and the fees earned. (4) Money or fees paid through mistake of law cannot be recovered. The answer pleads, and for the purposes of this case, the motion for judgment admits, that the State paid the money with full knowledge of the facts. Hence if there was a mistake, it was one of law. The law allows the clerk certain fees, aggregating a certain amount. Having received and charged himself with these fees it reduced the amount he could keep from other sources. It was a settlement. State ex rel. v. Ewing, 116 Mo. 129; Corbin v. County, 171 Mo. 385; Schell City v. Mfg. Co., 39 Mo.App. 264; State ex rel. v. Hawkins, 169 Mo. 615; State ex rel. v. Shipman, 125 Mo. 436; Scott County v. Leftwitch, 145 Mo. 34. The case of Lamar Twp. v. City of Lamar, 261 Mo. 171, does not fit the case at bar; besides it recognizes that where there has been a settlement, or what amounts to a settlement, with an officer, the municipality is barred from any recovery. See Lamar case, 190, and cases cited.

John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.

(1) The statutes require a county clerk to extend the tax levy for a given year, upon the assessment books, and after the extension has been made thereon to make a copy of said book with taxes extended for the use of the county collector. They require this to be done within ninety days, after the assessments have been equalized by the boards of equalization, and the assessments adjusted by the county clerk. This extension must be made at least before October 1st each year, and if it is not done before that time the clerk is entitled to no fee therefor. Secs. 11397, 11425, 11411, 11414, 11402, 11404, 11549, 11461, R. S. 1909. (2) The fact that suit was not brought to recover back these illegal fees until after the extension of the taxes had been made in August, 1914, does not avail appellant. A public servant may not collect money for the performance of a public service, fail to perform it until such a time as it has become useless, and then escape repayment by performing the useless service after demand for the repayment. (3) The doctrine that money paid under mistake of law cannot be recovered back has no application to public funds paid by one officer to another. To so hold would violate fundamental principles of law and open wide the door to fraud in the dealing of officials with such funds. Lamar Twp. v. Lamar, 261 Mo. 183; Morrow v. Surber, 97 Mo. 155; Ada County v. Gess, 4 Idaho, 611; Allegheny County v. Grier, 179 Pa. St. 639; Heath v. Allbrook, 123 Iowa 559; Ellis v. State Auditors, 107 Mich. 528; State v. Young, 134 Iowa 505; Board of Commissioners v. Heuston, 144 Ind. 588; Reppy v. Jefferson County, 47 Mo. 66; Sears v. Stone County, 105 Mo. 236.

BROWN, C. Railey, C., concurs.

OPINION

BROWN, C.

The petition, filed September 19, 1914, is in three counts, the first of which, omitting caption, is as follows:

"Comes now the plaintiff in the above entitled cause and states that on the day of January, 1911, defendant was the duly appointed and commissioned clerk of the county court of Clark County, Missouri, and as such entered upon the discharge of his duties on the day of January, 1911.

"Plaintiff states that in the year 1910 the county assessor of said Clark County duly assessed the real and personal property of said county, under and by virtue of article 2, chapter 17, Revised Statutes of Missouri 1909, and duly entered said assessment in the assessment book in said county and duly returned said assessment book to the county court of said county; and that the same was received and accepted by said court, and afterwards at the time provided by law, the State Board of Equalization of the State of Missouri and the County Board of Equalization of said Clark County duly passed upon and equalized said assessment. That afterwards, and at the time provided by law, there was duly levied upon said assessment, equalized as aforesaid, the state, county and municipal taxes of said Clark County, under and by virtue of article 5 of chapter 117, Revised Statutes 1909.

"Plaintiff further states that as such clerk and under and by virtue of section 11397, Revised Statutes 1909, it became and was the duty of the defendant to extend the taxes so levied as aforesaid upon said assessment book; that under and by virtue of section 11549, Revised Statutes 1909, said defendant was entitled to receive as full compensation for extending the taxes upon said assessment book, the sum of three cents for each name appearing thereon, the same to be paid by the said Clark County and State of Missouri in proportion to the number of tax columns used by each in said assessment book.

"Plaintiff further states that on the day of 191-, the defendant herein knowingly, wrongfully and falsely certified to the State Auditor of the State of Missouri that he had extended the taxes so levied as aforesaid upon said assessment book, and that he was entitled to receive therefor the sum of eighty-one dollars and fifty cents from the State of Missouri, as compensation for the proportionate part of said work of extending said assessment on behalf of the State of Missouri; that in reliance upon said certificate, and believing the same to be true, the State Auditor of the State of Missouri caused to be issued a warrant upon the State Treasurer of the State of Missouri for the sum of eighty-one dollars and fifty cents in favor of the defendant and delivered the same to him in payment of his alleged services in extending the taxes as aforesaid upon said assessment book, and that said warrant was duly paid by the State Treasurer, and that defendant received the money thereon.

"Plaintiff further alleges and charges that defendant did not extend the taxes so levied as aforesaid upon the assessment book aforesaid and so certified by defendant as aforesaid, and that by reason thereof defendant was not entitled to receive any compensation from the State of Missouri for any alleged service in extending said taxes.

"Plaintiff further states that although often demanded of defendant by plaintiff, said defendant has wholly failed and refused to return to said plaintiff the said sum of eighty-one dollars and fifty cents, paid him as aforesaid.

"Wherefore, plaintiff prays judgment against defendant for the sum of eighty-one dollars and fifty cents, with interest from day of , 1911."

The second and third counts declare for similar fees collected upon the assessments for the two following years respectively. The answer is, omitting caption and signatures, as follows:

"Defendant for answer to plaintiff's petition and each count thereof admits that he was during the times mentioned in each count of plaintiff's petition the duly elected and acting Clerk of the County Court of Clark County, Missouri. He admits that in the years mentioned in the petition the county assessor of said county assessed the real and personal property of said county and entered said assessment in the assessment books and returned said assessment books to the county court of said county, which were received and accepted by said court.

"Admits that the State Board of Equalization and the County Board of Equalization passed upon and equalized said assessments. That there were thereafter levied upon said assessments the state county and municipal taxes of said Clark County.

"Admits that as such county clerk it became defendant's duty to extend the taxes so levied upon said assessment books, and that defendant under the statutes of the State of Missouri was entitled to receive as compensation for so extending said taxes the sum of three cents for each name appearing thereon, to be paid by said Clark County and by the State of Missouri in...