Webster v. Smith

• Decision Date: 27 February 1883
• Citation: 13 Mo.App. 323
• Parties: BENJAMIN F. WEBSTER, Respondent, v. JOSEPH S. SMITH, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 323

BENJAMIN F. WEBSTER, Respondent,

v.JOSEPH S. SMITH, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 27, 1883.

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Reversed and remanded.

HENRY R. WATSON, for the appellant, CLINTON ROWELL, of counsel: There is no office of “collector” in the county of St. Louis.-- The State ex rel. v. Watson, 71 Mo. 470. The statute relating to the collection of revenue must be strictly construed.--Blackwell on Tax Tit. 147. The sheriff was a party to the suit and could not serve the process.--Rev. Stats., sect. 3894. There was no office of collector, and hence the sheriff was not a collector de facto.-- Hildreth v. McIntire, 1 J. J. Marsh. 206; Wait's Act. & Def. 7; Carlton v. The People, 10 Mich. 250; Ex parte Story, 21 Ohio St. 610.

H. H. DENISON, for the respondent: “Where a successor to the sheriff of St. Louis County was duly elected and qualified, after the adoption of the scheme of separation, he properly assumed the duties of both sheriff and collector from that date. Under the provisions of the scheme of separation, the general law making the offices of sheriff and collector distinct does not apply to St. Louis County.”-- The State ex rel. v. Watson, 9 Mo. App. 593; s. c. 71 Mo. 470. “The legislature may by law devolve the office and duties of tax collector upon the incumbent of any other elective office.”-- The People ex rel. v. Kelsey, 34 Cal. 470. “A person acting as an officer under color of a commission is de facto such officer until ejected by a proceeding having that object directly in view; his authority cannot be questioned in a collateral way, and his official acts, until ejected, are valid.”-- Aulanier v. Governor, 1 Texas, 653. “The acts of an officer de facto, whether judicial or ministerial, are valid so far as the rights of the public, or third persons having an interest in such acts, are concerned.”-- Plymouth v. Painter, 17 Conn. 585.

BAKEWELL, J., delivered the opinion of the court.

This was an action of ejectment, to recover possession of a tract of land in the county of St. Louis.

The answer of defendant, after a general denial, is substantially as follows:--

Before November 22, 1876, the city and county of St. Louis were included in the same territory. There was, then, a collector of St. Louis County, to collect taxes, whose office existed under special laws applicable to St. Louis County. This office was separate from that of the sheriff. In 1876, by the scheme of separation, the city was separated from the county, and the sheriff of St. Louis County was made ex officio collector of the revenue in and for the county of St. Louis as it now exists. The back-tax law passed after the scheme went into operation, on April 1, 1877; by this law, the collector in each county was empowered to sue to enforce the collection of taxes. Before that date, the collector was not authorized to commence such suits. In 1880, Watson, then sheriff of St. Louis County and ex officio collector, instituted suit in the circuit court of the county of St. Louis, the style of the action being, “The State of Missouri at the relation and to the use of John A. Watson, sheriff and ex officio collector of the revenue within and for St. Louis County, v. Albert H. Bowman.” In the petition in that action it was stated, that said Watson was the duly elected and qualified sheriff and ex officio collector of the revenue; and the tax-receipt required to be filed with said suit was signed by said Watson as sheriff and ex officio collector. Bowman was a non-resident, and owner of, and in possession of, the land described in the petition. Defendant is Bowman's tenant. The order of publication in the tax suit reads: “State of Missouri at the relation and to the use of the sheriff and ex officio collector,” and the proper style of said office is nowhere pleaded. Judgment by default was rendered against Bowman. Schneck succeeded Watson as sheriff, and, virtute officii, became ex officio collector whilst the Bowman suit was pending. Afterwards, on the 13th of April, 1881, judgment was rendered in favor of the state of Missouri at the relation and to the use of the sheriff and ex officio collector, on which execution was issued in favor of Watson as sheriff and ex officio collector, and directed to the sheriff of St. Louis County. On the 13th of June, 1881, the sheriff sold the property described in the petition to plaintiff Webster for the taxes of 1877 and 1878, at the price of $45, and delivered to him a deed for the same, by virtue of the execution aforesaid rendered on the judgment aforesaid for delinquent taxes of 1877 and 1878. Plaintiff claims to have acquired all the interest of Bowman in said property by virtue of said deed. The deed and judgment and execution are null and void by reason of the fact that the office of collector of St. Louis County does not exist. The sheriff of St. Louis County was not, at the dates aforesaid, and is not now, authorized to enter suits for delinquent taxes. Plaintiff has paid the taxes on the property in question for 1879, 1880, and 1881, amounting to $25. Defendant offers to refund this sum, and asks that the deed in question be cancelled.

There was a motion for judgment, notwithstanding the answer, which was sustained. The court assessed the damages and rendered judgment for plaintiff.

By virtue of special laws the offices of sheriff and collector were distinct and separate offices in St. Louis County from December, 1836. The general revenue law of 1872 made the offices of sheriff and collector distinct and separate offices in all counties of the state. This act contained special provisions as to the collector of St Louis County. The scheme adopted August 22, 1876, provides that the sheriff of St. Louis County shall be ex officio collector of the county of St. Louis. Rev. Stats. 1564, sect. 7. This abrogated the legislative provision making the offices of sheriff and collector of St. Louis County separate offices. The State ex rel. v. Watson, 71 Mo. 470.

Undoubtedly the sheriff, as ex officio collector, is the proper person to commence an action for taxes in the name of the state, at the relation and to the use of the sheriff as ex officio collector of St. Louis County, under section 6837 of the revenue law. But we know of no statutory provision which authorizes him to serve process or levy execution in a proceeding to which he is a party. The statute in regard to sheriffs provides that “every coroner within the county for which he is elected or appointed shall serve and execute all writs and precepts, and perform all other duties of the sheriff, when the sheriff shall be a party, or when it shall appear to the court out of which the process shall issue, or to the clerk thereof when in vacation, that the sheriff is interested in the suit.” Rev. Stats., sect. 3894.

The statute prescribes that all “actions commenced under the provisions of this chapter shall be prosecuted in the name of the state of Missouri, at the relation and to the use of the collector, and against the owner of the property.” It appears from the answer under consideration that the action in which the judgment was rendered under which plaintiff claims, was so prosecuted. The statute further provides, that “in all suits under this chapter the general law of the state, as to practice and proceedings in civil cases, shall apply so far as practicable.” Rev. Stats., sect. 6837.

If the sheriff was a party, he could not serve process. So far as the judgment itself under which plaintiff is alleged to claim is concerned, it could not be attacked in a collateral proceeding, such as the one before us, unless void for want of jurisdiction. Gray v. Bowles, 74 Mo. 419. And nothing is alleged in the answer to show that the judgment was void. The question as to service of process by the sheriff or coroner does not arise as to the judgment, because it does not appear that any summons was issued. The defendant in the back-tax suit is alleged to have been a non-resident. A summons and return of non est inventus by the sheriff are not alleged, and they were not necessary....